Federal Criminal Defense Lawyers: How We Doin'?

 Posted on June 16,2009 in Uncategorized

Today I saw "Edwin" in court. Edwin is a longtime criminal-defense lawyer, a former assistant federal PD, and one of my criminal trial advocacy professors at University of Houston law school.

Edwin represented a codefendant in my first jury trial 12 years ago, and his client's testimony sent my client to prison for 9 years on a federal bank robbery beef. I was reminiscing with Edwin about how his client sold mine up the river when he shook his head and said, "bank robbery cases can't be won."

We talked some more, and I told him how the Government had, after my client refused to plead guilty to misprision, dismissed a ten-kilos-and-two-guns case on the eve of trial a couple of months ago. Again Edwin shook his head and said, "that never happens. They never dismiss."

Now, Edwin is not some assclown who thinks federal court is a good place to turn a quick buck by running every defendant down to the U.S. Attorney's Office. He's a smart, talented guy with a lot of federal criminal defense experience. But he was telling me, in effect, "everyone gets convicted."

I told Edwin about the case manager for one of our local magistrate judges trying to recruit me, as a Spanish-speaking lawyer, to handle cases on the judge's special illegal-reentry docket. I had bowed out when it was explained to me that, at the first court appearance, "you waive the conflict of interest because the judge is married to the acting U.S. Attorney." It had occurred to me that there are probably lawyers willing to sign on to a gig that included waiving their clients' rights in every case as a matter of course.

We seguéd into a discussion of the federal criminal defense bar. I told Edwin that I know there are lawyers who plead their clients out to federal charges without seriously evaluating the evidence or the defenses. He denied that that happens. I told him that I know there are such lawyers because their clients keep coming to me to try to pull their fat out of the fire after they've run down to the U.S. Attorney's Office. I gave Edwin the names of a couple of Houston lawyers who I know to be habitual offenders, and he didn't know them.

Edwin thinks the cases that need to be pled are being pled, and the cases that need to be tried are being tried. Edwin thinks criminal-defense lawyers in federal court do a good job of protecting their clients' rights and fighting everything that should be fought.

I don't. I think that too many lawyers have the "everybody gets convicted anyway", and that as a result they don't look closely enough at the evidence and the possible defenses in every case. I think more cases need to be set for trial, more sentencing memoranda need to be filed and, generally, the Government needs to be forced to fight harder to put human beings in boxes.

What do you think? Which of us is right? As a group, how are we-lawyers representing the accused in federal court-doing?