Be the Best or Go Home

 Posted on December 07, 2008 in Uncategorized

The Honorable Devon Anderson and the Honorable Brock Thomas will be joining the Houston criminal defense bar after their tenures end in January. I knew and had a case against each when they were prosecutors before they were judges, so it won't be the least bit weird calling them "Devon" and "Brock" again.

I hope for the sake of their clients that Devon and Brock, like those other lawyers recently separated from government service (those who didn't have a sojourn on the bench between their stints in the DA's Office and the beginning of their careers as defense lawyers) are mindful of the fact that, as criminal-defense lawyers, they are rookies. Representing a human being is fundamentally different from representing the government.

Neither the DA's office nor the bench taught these rookie criminal-defense lawyers how to manage a business, or set a fee, or choose a health insurance plan, or get a line of credit. Neither taught them how to do all of these things while providing representation to human beings in trouble.

Neither the DA's office nor the bench taught them how to do a soft cross, nor how to keep their mouths shut when the other side has failed to prove its case.

Neither the DA's office nor the bench taught them what the correct go/no-go decision is for a given client in a given case (clue: if prosecutors knew what cases were worth, the defense wouldn't consistently beat the State's recommendation at trial), how to help the client reach that decision, or how to go to trial and take a beating when the client makes the wrong decision.

If I could prescribe one thing for all of these rookies to learn - to absorb and accept - before they accept responsibility for their first human being accused of a crime, it would be that they are now responsible not for the safety of the community but for the freedom of the individual.

Whether the client hired you or a court forced you upon him, you have a responsibility to fight for his freedom. This responsibility trumps almost anything else. It trumps - and is usually contrary to - and popular sentiment. Your boss is no longer accountable to the voters, and neither are you. "Tough on crime" is contrary to your client's interest.

Often as a criminal-defense lawyer you will have to fight for positions that are anathema to most voters. If you are concerned with what the voters might think of the job you do as a criminal-defense lawyer, your client - a real human being - will suffer.

The Houston criminal defense community is a welcoming and supporting one. We believe in redemption; those who are fighting for freedom are welcome no matter what they did before. But please, if your long-term plan is anything other than to be the best criminal-defense lawyer in Houston, or if criminal defense is just something to keep you busy before your next bid for the bench, quit now.