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Criminal Justice Magazine
Winter 2003
Volume 17 Issue 4

Chair’s Report to Members

Albert J. Krieger

Albert J. Krieger is a criminal defense lawyer in Miami, Florida, and chair of the Criminal Justice Section.

Reality or Perception—the Lady or the Tiger?

Perception is as compelling as reality. In many ways, our decisions are reached by perception rather than by the careful gathering of fact, analysis, study, test, and then—but only then—a binding conclusion. We see that, unfortunately, in our day-to-day lives, within our legal community, in how we function as lawyers, and whether, in fact, we serve the overriding public need for lawyers. Many would question if there is a need at all, and that brings us to the perception of what we do. In a recent report designed to help combat the awful depiction of lawyers that is part of a current trend, a survey shows that the public gave doctors a 50 percent approval rating while lawyers received only a 20 percent vote of confidence. Distressingly, the poll showed that 69 percent believe that lawyers are more interested in making money than serving their clients. Faint comfort can be derived from the fact that only 34 percent believed that lawyers deserve their bad reputation.

How cruel the results of this poll when weighed against the efforts of attorneys within the criminal justice system who struggle to preserve and to further the process and the substantive rights ensured by the Constitution. Those who prosecute and those who defend are overall paid much less than the same effort and time would earn them in business, corporate, or tort law. The prosecutor who has devoted a professional career to public service barely makes a subsistence wage. The lot of the defender is no different. The judges? Considering their responsibility and the enormity of the task shouldered, the salary paid to judges is insulting. Judges with more than 25 years of experience see their children hired out of law school for salaries that exceed their own. It is painful to accept the perceptions that make the poll results inevitable, yet we do little to change them to reflect the realities of the services rendered routinely and regularly to the public.

Despite what their egos tell them, lawyers function as wheels within wheels. The decisions they reach, the advice given, and the representation rendered invariably affect other people—even the entire legal system. Restricting this consideration to the criminal field, the determination of the prosecutor to prosecute or the defender to defend is not made in a vacuum. Someone’s life is forever changed by these choices and their consequences. The judge may conduct judicial affairs impersonally, yet the very presence within the court has an impact on prosecutor, defender, victim, witness, and the process as well as the public. Therefore, we in the criminal justice system are objects of review for those who wish to see as well as those affected by the process itself. Thus, that which we do and how we do it creates the perceptions of the legal system by which the public determines what our responsibilities are and how well we discharge them. This takes place more in the criminal court as this is the forum where most of the public has contact with the justice system and, consequently, with lawyers and judges. We become the judged, and tragically, we have been found wanting.

Do we create the perception that compels the public rejection? Probably. To dispute this perception by reciting the monetary consequences of the decision to be a member of the criminal justice system is really not enough. There are some real problems out there.

It is easy to point to the Innocence Project and quote the embarrassing facts that are derived from it. The horror of persons being sent to their deaths because of incompetent defense lawyers, overly aggressive prosecutors, or unlettered judges is amongst the most brutal of human actions. The propriety of the death penalty in a civilized society is not the subject of this essay, but its imposition puts into bold relief the services that we render to our community. It was not too long ago that the aphorism that it was better for the guilty to go free rather than a single innocent be convicted was a watchword within the legal community. Now, under the truism that no trial can be perfect, it can only be fair, we seem to be slipping towards a lower standard. How a trial can be fair yet flawed is perplexing, yet harmless error is a recognized factor affecting the outcome. In many ways, it is a rational concept and acceptable in the greater scheme of things. An undotted "i" or an uncrossed "t" should not nullify an otherwise valid adjudication. Many defense lawyers, however, cannot suppress the nagging disquiet that remains when error is ignored. In the arena of adversarial conflict where the defense lawyer practices, all error is of substance. Recognizing this, it should be easy for the defense lawyer to understand the dynamics and consequences of perception on the part of observers, and, equally importantly, on the part of opposing counsel. What applies to one applies to the other. The defense lawyer should not be deemed an extension of the client, and the prosecutor should not be subject to the crude variations of the word that describes the role of the one representing the state. Both should exercise zeal, but within appropriate borders and with respect and understanding of the irreplaceable role of the other. Justice White said it well in U.S. v. Wade, 388 U.S. 218, 256–58:

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

If these concepts are almost viscerally rejected in the heat of litigation, then there is an added burden upon all of us if we seek a public that enjoys the glory of our system of justice. We must act as missionaries each day of our practice and bring a belief in justice to the community. How fortunate we are today in that there are courts that, in the struggle to adjudicate some of the most challenging of problems of our current lives, remember and comment for the world on the grandeur of our system of justice. The argument of the appeal in Yaser Esam Hamdi v. Donald Rumsfeld before a panel of the Fourth Circuit Court of Appeals included the chief judge. Hamdi was represented by the lawyer who has been denied access to him despite an order of the district court. According to the press, at the conclusion of the argument, the court, led by the chief judge, proceeded from the bench to the well of the courtroom to congratulate counsel on the quality and professionalism of their arguments and representation. As we all can attest, this not a frequent occurrence. But at a time of possibly imminent war, when the issue before the court involves interpretations of what our national security requires, it is, to understate the matter, unique. It illuminates for all the strength and stability of our judicial system. Remarkably, this event is matched in substance, but not drama, in an opinion recently filed in the "Shoe Bomber" case, U.S. v. Richard C. Reid.

Chief Judge William G. Young, United States District Court, District of Massachusetts, had heard arguments addressing the regulations governing attorney-client contact promulgated by the executive branch and the vigorous opposition to them by the lawyers representing Reid, a noncitizen charged with an unsuccessful attempt to blow a passenger airliner out of the skies. The purpose of the restriction the government sought to impose was, in its view, to protect and further national security. The defense countered that the regulations were an unconstitutional abridgement of the right to counsel. In rendering his opinion supporting the right to counsel under the existing circumstances, Young was obviously pleased to remark that "Throughout, the conduct of all counsel for the government and the defense has been, and continues to be, marked by the utmost professionalism and civility."

The zeal displayed in both of these cases by counsel is, of course, a tribute to them in these complex, irksome, and troublesome matters. However, the public notice of their efforts, dedication, and skills is nonexistent. As has been pointed out, they are all underpaid for their loyalty and self-sacrifice; for their stamina in the struggle to bring constitutional justice to all matters in a fashion that rejuvenates those of us in the trenches. The side represented is unimportant. The quality of the representation is. Gratitude to the court for its recognition of the courtroom lawyers is a giant step toward public recognition, if we make it known. The O’Reilly Factor should balance its views of the defense lawyer with a reading of Justice White and an analysis of what moved these different courts to react the same way to the lawyers before it. We accept the responsibility of conducting our practice with civility and professionalism. It is not too much to ask of those in whose hands the vitality of the Constitution reposes. n



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