The Mind of the Criminal Defense Trial Lawyer

 Posted on August 20,2007 in Uncategorized

New York criminal-defense lawyer Scott Greenfield wrote yesterday (at 6:28 a.m. on a Sunday morning, for crying out loud!) about Conflict Aversion and Personality Traits (or is it "Conflict Aversion and Personality Flaws?" See the URL).

In Scott's excellent post, he focuses on criminal-defense lawyers' lack of aversion to conflict:

We avoid conflict when we can. We search for mutual ground, things we can agree upon. We know that there is far more to be accomplished through the mutuality of interests than through disagreements. But, there is also some bone in our heads that won't let us shy away from a fight. When pushed, we push back if we believe it matters.

This brought to mind two things that I've been wanting to write about. The first was the undesirability of aggression as a personality trait in a criminal-defense lawyer. I'll write about that later.

The second thing that Scott's post (along with Ft. Worth criminal-defense lawyer Shawn Matlock's approximately contemporaneous post [do you people not believe in sleeping in on Sunday mornings?] on defending people For the Love of the Game) brought to mind is the special kind of mind that I think criminal defense trial lawyering requires. The good criminal-defense lawyers are different enough from other people, and enough like each other, that I think someday the DSM will include criminal defense as a personality disorder. (I expect that prosecution and judging will get their own DSM descriptions as well.)

Other than the lack of conflict averseness, one thing about criminal-defense lawyers (by which I mean criminal defense trial lawyers, by which I mean criminal-defense lawyers who actually pick juries and try cases) is that we have no capacity for embarrassment. It's not that we don't embarrass easily, but that we don't embarrass. If we start off embarrassable, we get over it. As Topeka criminal-defense lawyer (and now district court judge) Joe Johnson says:

We're criminal-defense lawyers. We have no shame. When we fart in a crowded elevator, we look around and, without cracking a smile, say "what, like you don't do it too?"

I helped a friend who hasn't tried many cases try an indecent exposure case last week. The cop had acted like (his idea of) a gay man looking for sexual attention in Memorial Park. At trial the cop readily admitted making eyes at the accused, then going to a more private spot in the woods and waiting for the accused to follow him. When the accused did so, the cop unzipped his own fly, put his hand inside his shorts, and moved it as though he was masturbating. The accused allegedly responded the way the cop wanted, by revealing his penis and masturbating, at which point the cop arrested him.

At trial, of course, the lengths to which the officer went to get the accused to expose himself was in issue. My colleague whose case it was asked him to describe what he did, then to show the jury what he did, with me standing in for the accused. The cop showed where he was standing, and how, and described what he was doing with his hand, but the lawyer didn't press him to show what he was doing with his hand. She then had us reverse roles, so that the cop was playing the accused and I was playing the cop. I, having no shame, unzipped my fly, put my hand inside my pants, and moved it as though I was masturbating. The prosecutor exploded in outrage, we approached the bench, she told the judge what I had been doing, and the judge said "that sounds like what the cop said he was doing." (Then, in an aside, he told me to "keep it in good taste;" in my opinion good taste was abandoned the first time the cop licked his lips at the accused.)

In the course of the trial the lawyer referred several times to things as "embarrassing" (to the cop, the sole witness: "we won't talk about that, since it's embarrassing"). There was no reason for the lawyer to be embarrassed; ten trials from now she'll probably have gotten over it. (This trial didn't go well for reasons probably unrelated to embarrassment.)

The cop might have been embarrassed. In fact, he probably should have been embarrassed. I embarrassed him a little by showing the jury what he had done (it threw him off); had it been my case I would have embarrassed him a whole lot more. I would have, first, subpoenaed him to come to court dressed as he was on the day of the arrest. Then, before the jury, I would have taken him through every sordid thing he did in every moment of his encounter with the accused, from the first wink to the last stroke. But to accomplish all of this, I would have to have been unembarrassably deadpan.

Another thing about us criminal-defense lawyers: we are intense. If things are worth doing, they are worth overdoing. In most of our cases, victory cannot be ensured no matter how much we do. So we investigate and prepare and practice and research and agonize and ponder and plan until there's nothing else we can imagine to do.

Generally, we're quick thinkers - or at least quick deciders. Despite our best preparation, trial work is largely reactive. The advantage goes to the lawyer who makes the right decision quickest. There is a premium on making the decision, so that not deciding quickly enough is the same as making the wrong decision. If the prosecutor asks an improper question, the defender has the blink of an eye to recognize the impropriety, decide on the proper objection, and decide whether to make the objection. If he doesn't get up and say something the opportunity is lost.

We're people people as well. We love human beings, and want them to be more free. Even professed "conservatives" like Shawn Matlock who claim that defending people is a game are motivated by the secret desire to help people. They just won't admit it.