What criminal defense attorneys do, matters

You know what? Standing up for what is right, good and legal is not easy. Being a criminal defense lawyer is difficult. it takes daily re-dedication. It can be depressing in that the cards are stacked against the accused, the system largely is impervious to systemic changes. We get yelled at by judges. The behavior that lands us in trouble is excused if done by prosecutors. Different standards are applied in the appellate courts based upon who the proponent of the position is. Where there are flaws that are exposed in the method or in the validation of the forensic technique used in court, the system does not demand it be corrected, but instead it just keeps on grinding away with business as usual or only minor changes.

Nevertheless, it is noble and honorable to be a criminal defense attorney.

What a great profession and area of practice that we work in as criminal defense attorneys! We make a difference in countless people’s lives for the positive every day win lose or draw. We to help keep families together. We help to make sure justice works. We look to mitigate or eliminate the consequences that come by way of government accusation. We should be proud. We all have courage. Keep it up. One brave person, one brave attorney can make a difference. Win, lose or draw, we make a difference every day. As proof positive that one brave person can make a difference, I offer you the following video that you can click on the picture to make run. I know it inspires me, I hope it inspires you…

Sometimes on the various listservs that I belong to there comes an email written in frustration that basically laments that what we do doesn’t matter. In response to one such email, I authored the following. I would like to share it with you.

I figure if another criminal defense attorney can stand up to what was wrong, then I figure that when I have difficult cases or a difficult judge or difficult prosecutors or difficult clients, then I should consider myself lucky because I can make a difference.

But it’s not just one attorney, it’s each and every person who honorably chooses to defend the accused. Every time you say ready for trial, then you inspire me. Every time you demand discovery, you inspire me. Win, lose or draw. It takes courage to stand up when there is wrong, to raise your hand and cry foul, to say no to the leviathan when it seeks to crush for no legitimate reason, to exclaim “Not on my watch!” to the unfettered power of the tyrant who in the case rules unjustly. Goodness knows it’s so hard to do on a day-in and day-out basis to do the right thing. I find inspiration in these words that are below in this YouTube video. It’s 2:21 seconds long. If you have never watched it, then you MUST. I don’t care if you have seen it 100 times. Everyone should invest a moment and click on the picture and truly listen (and not just hear)

The simple fact of the matter is that it is never easy to be first at anything that is good and right and socially controversial. The forensic science community as currently practiced in the United States today is very flawed. Extremely flawed. Fundamentally flawed. In some cases, if not the majority of cases, it is utterly unscientific. It is perhaps that modern day tyrant that Kunstler speaks of that does its dirty work under the veneer of order and this aura of legitimacy and legality within our system.

I agree with the sentiments that the criminal defense community shares a large portion of the blame. Many lawyers well before our times, let come into evidence practices, techniques, and “theories” that had just but the very veneer of science and were, however, anything but scientific and far from valid. This institutional propagation of error is a large hurdle for many of us to overcome now where business as usual or simple repetition is somehow equated with validity.

In my time practicing in this specific area of law, I can give witness to the tremendous amount of baseline shift in the average lawyer’s scientific IQ. This is due in no small part to leadership and many members of various organizations and the many fine experts who volunteer to teach. The scientific programming in the criminal defense community has consistently improved and what was advanced a year ago is now very basic.

While not every criminal defense attorney is fully educated in the ways of science, by our actions and example of professionally fighting and being scientific skeptics, we are making a difference. Other attorneys see there is another way, a better way, the sleeping giant that is the core of the criminal defense community (excluding those who dabble in it) is awakening.

While in isolation we might see ourselves as that sharp knife that whose effect on the glass of water might be minor, but the ripple effect can be awesome. Tsunamis are made this way.

I am blessed in that this year alone I have lectured in 17 different states and over 28 times and I see firsthand that people, our brothers and sisters, want to learn this “science stuff.” They know what many of us have known for many years, that the day of smoke and mirrors is over. They are eager and charged up and inspired that they can make the system work and maybe even work better.

I agree that there can be a limitation that is placed in front of our collective enthusiasm that is institutional and systemic—the judicial branch. Some in the judicial branch are educated on science, and to those rare jurists I am very thankful. However, most jurists are simply not even intellectually curious or open to hearing about science. I find it hard to relate science (or basically anything) to folks whose frame of reference is that when they were growing up the most sophisticated piece of machinery that they had regular ready access to was perhaps an automobile or a radio (probably not even a TV). They grew up by in large in a time where no one “normal” questioned the government and in terms of society the result of Brown v. Board of Education was something that was even debatable and not something that was a given and fundamental.

With that extreme limitation in place, there is hope. As we grow in numbers and in sophistication within our numbers, there is gathering momentum. It will take time. It will be measured in decades not simply years. I realize this is of no solace to the criminally accused now. But we live in a time of the beginning and not at the end. What we have to do is continue to be an inspiration to each other, and to others to do right.

So if you see a criminal defense attorney today, stop her or him and thank them for all that they do. They provide for my daily inspiration. I thank them too.

2 Responses to “What criminal defense attorneys do, matters”

  • Great stuff Justin. I am a forensic DNA consultant who works almost exclusively for the defense these days. I worked in law enforcement laboratories for a number of years in the past. It is absolutely the underdog nature of the defense that has drawn me to it. When I used to testify for the prosecution and would get a half hearted cross exam by the defense, I realized how much help the defense needs in understanding and defending forensic science cases.

    I also work with pro per clients who are especially vulnerable to being mowed down by the system. Whatever people think of the wisdom of representing yourself, it is a legal right, and these folks also deserve due process.

  • I agree with you completely. For the past 8 years I have worked exclusively for the defense. I have also lectured at many Public Defenders conferences where I educate the attorneys in the benefits of knowing the ins and outs of Forensic Science. While I was a Police Forensic Detective in my previous life, I look back and realize how easy the cross examination by the defense was. Simply put, they can’t ask what they don’t know. Unfortunately Forensic Science as evidence has come under even greater scrutiny by the examination process and the integrity of the examiner and their ability to testify. One must remember that the evidence doesn’t lie but the interpretation of that evidence can be subjective, if the examiner allows it.
    I still do case work as well as consulting with attorneys on the evidence and how to approach that evidence from a defensive standpoint. I also do private investigations so that I can get a better understanding of the particular cases that I’m asked to work on/review.

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