No Older \u27N Seventeen : Defending In Dylan Country

This article is about an actual experience the author had defending a teenager accused of a serious crime where Bob Dylan grew up-- the Minnesota Iron Range. In order to protect the young man\u27s privacy, it does not divulge the actual time period of the case. Likewise, details about his life and the charges he was facing have been changed. His name has been changed to Jamal. Things did not go well for Jamal. Though a child when he was sent from the juvenile jail outside of Washington, D.C. to a secure treatment facility for serious juvenile offenders in the Iron Range, Jamal was ultimately tried and convicted as an adult and sentenced to many years in prison

Defense-Oriented Judges

In this essay, I argue in favor of so-called defense-oriented judges. Instead of the increasingly prosecution-oriented judicial aspirants who ascend to the bench, we need more judges who care about protecting the rights of the accused, who will put the government to the test, and who have some compassion for those who come before them. Instead of judges who are nothing more than rubber-stamps for prosecutors, deferring to prosecutors at every step because they believe most defendants are in fact guilty, or because they dislike defense lawyers, we need judges who are truly neutral and disinterested. Instead of judges who actively assist the prosecution and handicap the defense, we need judges who, at the very least, allow the adversarial system to play out

Defending the Innocent

Of the legal scholarship examining the representation of the innocent accused, most has to do with guilty pleas, not trial or post-trial advocacy. Most of this literature is concerned with the pressure put on innocent defendants to plead guilty in order to receive a more lenient sentence than what they would get if found guilty at trial. This problem is compounded by the inability of poor defendants to make bail. Unfortunately, there are other, equally insidious ways to pressure innocent defendants to plead guilty. When addressing the question of defending the innocent at trial or in a post-conviction challenge, most criminal defense commentators agree that nothing is more burdensome. As one commentator put it: Those rare trials of a defendant when the lawyer truly believes to be innocent ... are grueling and frightening experiences, in which the usual will to win is elevated to a desperate desire to succeed.

Good Person, Good Prosecutor in 2018

Nearly twenty years ago, I wrote an essay on the ethics of prosecution in a time of mass incarceration called “Can You Be a Good Person and a Good Prosecutor?” I am both pleased and perplexed that the essay, which caused some controversy at the time, continues to strike a chord—at least with the organizers of this online conversation. I appreciate the invitation to weigh in on whether you can be a good person and a good prosecutor in 2018

In Praise of the Guilty Project: A Criminal Defense Lawyer\u27s Growing Anxiety About Innocence Projects

There is nothing more compelling than a story about an innocent person wrongly convicted and ultimately vindicated. An ordinary citizen is caught up in the criminal justice system through circumstances beyond his or her control, spends many years in prison, and then one day, with the assistance of a dedicated lawyer, is freed. Often, when DNA is behind a vindication, not only is the innocent person exonerated but the true perpetrator is identified. This is a significant achievement even though it can also lead apologists for the system—even police and prosecutors implicated in the wrongful conviction—to proudly declare that the system “worked.” The work of lawyers, journalists, and others involved in the “innocence movement”— or, as one participant has called it, the “innocence revolution,”—has been justly lauded. In the relatively few years since prisoners began to be freed because of post-conviction DNA testing, advocates for the innocent have accomplished “breath-taking . . . results.” They have ushered in “an exciting new period of American criminal justice,” a “transformation,” that is truly “groundbreaking.” Some have proclaimed the innocence movement “a new civil rights movement” of the twenty-first century. Because of the publicity attending exonerations, the narrative of innocence—with its tales of bungled or corrupt police work, mistaken or bought witnesses, coerced or false confessions, unethical or incompetent lawyers, and phony science—has caught fire, leading to important legislative changes and some new police practices. Most importantly, the narrative may be trickling down to jurors. Armed with these stories, jurors might view questionable evidence with greater skepticism, and in so doing, ensure that the prosecution meets its burden of proof. Given all this—the draw of innocence, the importance of vindicating innocence, the fact that innocence advocacy may have helped level the criminal justice playing field, the goodness of defending the innocent—how can a criminal defense lawyer have the audacity, the nerve to complain? Why can’t Innocence Projects and “Guilty Projects”—the traditional law school criminal defense clinic—coexist in peace, each making an important contribution? What possible concerns could be raised that are not rooted in envy? In this essay the author discusses three growing concerns about Innocence Projects: first, the tendency toward innocence “one-upmanship” or arrogance; second, the focus on innocence—especially DNA-proven innocence—as the chief currency in criminal justice reform; and third, the popularity and increasing ascendancy of Innocence Projects at law schools

The Dignity and Humanity of Bruce Springsteen\u27s Criminals

In this essay, I discuss Springsteen\u27s criminals by focusing on two albums, Nebraska and The Ghost of Tom Joad, and Springsteen\u27s title song to the movie soundtrack Dead Man Walking. These are classic albums about criminals and prisoners, and Dead Man Walkin’ may be one of the best songs ever written about being on death row. Before getting into the music, I first note the historical context - Springsteen\u27s career has taken place during a particularly hostile time for lawbreakers - and offer a brief biographical sketch of Springsteen

Can You Be a Good Person and a Good Prosecutor?

Somehow, it is understood that prosecutors have the high ground. Most people simply assume that prosecutors are the good guys, wear the white hats, and are on the right side. Most law students contemplating a career in criminal law seem to think this. It could be that most practicing lawyers think this, as well. Prosecutors represent the people, the state, the government. This is very noble, important, and heady stuff. Prosecutors seek truth, justice, and the American way. They are the ones who stand up for the victims and would-be victims, the bullied and battered and burgled. They protect all of us. Defenders are always on the defensive. In a social climate that exalts crime control over everything else, defenders are barely tolerated. It is sometimes hard for the public to distinguish defenders from the scum we represent. We are often seen as our clients\u27 accomplices or, at best, their apologists. Much has been written about whether you can be a good person and a good defender--that is, whether it is morally acceptable to defend people who do bad things--and what the personal and professional dilemmas are for those who engage in such work. Almost nothing has been written about whether you can be a good person and a good prosecutor--that is, whether it is morally acceptable to prosecute people who do bad things. At the heart of this question is the reality that prosecution inevitably leads to punishment, which, in recent times, means locking people up (especially some people) for very long periods of time, and, with increased regularity, executing them. In this article, the author examines the morality of prosecution. First, she explores the context of criminal lawyering at the millennium and what it means to prosecute under current conditions. Then, she discusses whether it is possible to do good in this context--that is, whether a well-intentioned prosecutor can temper the harsh reality of the criminal justice system--in view of the institutional and cultural pressures of prosecutor offices. The author concludes by answering the question she poses in the title of this article and addressing some likely objections

Too Much Heart and Not Enough Heat: The Short Life and Fractured Ego of the Empathic, Heroic Public Defender

In this Article I will examine Professor Ogletree\u27s paradigm for motivating and sustaining public defenders ten years after he proposed it. I will discuss whether Professor Ogletree\u27s paradigm works for defenders in the predominantly high-volume, urban settings in which they practice, and if so, for how long. If the paradigm works for short-term defenders only - or those with smaller caseloads - then perhaps it is a temporary, not a sustaining, motivation. I will examine whether the paradigm is helpful- on an aspirational level if nothing else – or whether it emphasizes motivations that are ultimately self-defeating. After discussing Professor Ogletree\u27s paradigm, I will offer a paradigm of my own. As an alternative to the two-pronged model of empathy and heroism as sustaining motivations for public defender work, I suggest a three-pronged model of respect, craft, and a sense of outrage. Defenders who approach the work out of respect for client, pride in craft, and a sense of outrage about inequality, injustice, and the routine abuse of power by those in a position to wield it are able to sustain their careers despite the systemic incentives to fail

Are Prosecutors Born or Made?

In more than thirty years of criminal law practice--from public defender in Philadelphia to professor running a criminal law clinic in New York, Boston, and DC--the author has had countless encounters with prosecutors and countless conversations. Early in her career, the encounters and conversations were noteworthy--something to rail about back at the office, or to dine out on with friends. Soon enough they became commonplace, not even worthy of mention, just the way things were. But the author felt it important to pick a few examples and talk about them