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February 13, 2024 Best of ABA Sections

An Ethos for Criminal Defense Lawyers

Jon May

A question defense counsel get throughout their career is, “How can you defend those people?” Their responses vary, but most often, they are these three:

  1. Some lawyers point to the fact that the vast majority of defendants are impoverished. Many defendants grew up in an abusive household or without a parent. Most are Black or Hispanic. A large percentage are mentally ill or have a severe substance abuse problem. Representing people who have committed even the most heinous crimes is important because these people have often been broken by having grown up in horrific circumstances or are so mentally ill that their lives should be spared.
  2. Then there are those lawyers who believe that the imprisonment of a person who is not guilty of a crime is a major injustice, and the execution of an innocent person is state murder. They believe that we all are at risk unless the state is held to its burden of proof and that the system can only protect the innocent if, as a consequence of its design, some guilty people go free.
  3. Still other lawyers believe that defense counsel play an important role in maintaining our democracy. Our scheme of government was the work of lawyers, and it is no coincidence that we are the oldest democratic republic in the modern world. These criminal lawyers are committed to the principle that we are a nation of laws and not people.

But this ethos is broader than the representation of just one person. It reflects the understanding that the fight to make the criminal justice system more just is primarily the role of criminal defense attorneys.

Fighting for Justice in the Criminal Justice System

Consider these examples. The Federal Sentencing Act, which created the Federal Sentencing Commission, was enacted in 1984. Five years later, the Sentencing Guidelines were held to be constitutional. For 21 years, those of us who battled in the trenches believed that the guidelines would be with us forever. But some lawyers did not give up the fight, and the result was United States v. Booker, 543 U.S. 220 (2005). Once again, our practice was turned upside down. We still have to contend with the Sentencing Guidelines, but now a judge’s discretion is almost without limit. Thus, during the span of almost 21 years, judges went from having the absolute discretion to sentence individuals from probation to life in prison, to being absolutely bound by a rule book that almost completely circumscribed what kinds of sentence a judge could impose, to the present, when judges are required to consider the rule book but can then disregard it if they feel it is necessary.

During this same span of time, human beings were subjected to the capriciousness of a system that often made little sense. The Guidelines were part of a mechanism that put a generation of Black and Hispanic men in prison, undermined the institution of marriage, and left children to grow up in one-parent households. But throughout, lawyers in the trenches fought to expand the range of departures to allow judges to take into consideration factors that were important to assessing a defendant’s true culpability.

Another example is the work of Craig Barnard, who was the Chief of the Capital Appeals Division of the Public Defender’s Office in West Palm Beach, Florida, in 1979. At that time, the overwhelming majority of people in the United States were in favor of the death penalty, and death row was filling with persons facing execution. Barnard knew that we could not overturn the sentences for almost all the people we were defending, but he and a small number of lawyers across the country expected that the pendulum would swing back someday. Their strategy was to keep people alive until that happened. And it worked. Today, only a small number of people are executed each year, and some states have abandoned the death penalty altogether.

Changing the Dynamic

The fact is that defense counsel laboring before the federal courts are called on to be advocates in a system that is stacked against their clients. Ninety-nine percent of defendants plead guilty, and the most counsel can do for them is mitigate the damage. But if lawyers are to provide defendants with the best representation they are capable of, they must find ways to resist this. Lawyers must find creative ways to change the dynamic. How can defense counsel change that dynamic right now and not wait until the future catches up?

First, adopt a mindset that a plea is not the inevitable consequence of not being able to go to trial. On December 16, 2022, Attorney General Merrick Garland issued a memo stating in part, “Every district should develop an appropriate pretrial diversion policy [PTD].” PTD was utilized in the 1990s to eliminate the need to prosecute low-level offenders, but there is no reason why it cannot apply in more serious circumstances, particularly where it is in the interests of victims and other people to keep the accused out of prison and working to atone and provide restitution to victims. If you have a good case for PTD, ask for and, if necessary, demand, a copy of the policy.

Second, refuse to negotiate until you have reviewed all the discovery and have been provided with all Brady. Although the Supreme Court has held that the government does not have to provide impeaching evidence prior to the entry of a plea, what this means is that prosecutors can hide exculpatory evidence as well because once the defendant pleads, it is virtually impossible to discover if the government has failed to disclose what it was legally obligated to disclose. If the prosecutor or the court imposes a deadline that requires you to plead before you have had an opportunity to review all the discovery, file a notice with the court that says you cannot render effective assistance of counsel under the deadlines that have been imposed. If the court refuses to intervene with the prosecutor or the court refuses to extend its deadline, file a petition for supervisory mandamus with the circuit court.

Third, adopt the mindset that you are now a sentencing trial lawyer; you can employ at sentencing all the techniques that you use to try a case before a jury, as well as others that are not available to you at trial. The rule that hearsay is admissible at sentencing works to your advantage more than the government’s and allows you to put out facts that undermine sentencing enhancement that can increase a sentence beyond the benefit that a client would receive from an acceptance of responsibility. More importantly, it allows for vigorous variance advocacy.

Fourth, once you become a sentencing trial lawyer, you will have more occasions to call federal agents as witnesses. The government will refuse to permit the agent to testify unless you comply with Touhy regulations, which require the defense to disclose the questions it’s going to ask. Authority for such regulations is based on Touhy v. Ragen, 340 U.S. 462 (1951), a 73-year-old civil case that cries out to be challenged before the Supreme Court.

Fifth, look way beyond the decisions of your circuit. Particularly today, every rule, decision, and principle of constitutional law is subject to change.

Sixth, do not think of yourself as simply a litigator. Actively work to change the law in Congress.

ABA CRIMINAL JUSTICE SECTION

This article is an abridged and edited version of one that originally appeared on page 31 of Criminal Justice, Fall 2023 (38:3).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

WEBSITE: americanbar.org/crimjust.

PERIODICALS: Criminal Justice, quarterly magazine; Criminal Justice Newsletter, published three times per year; White Collar Crime Newsletter, published two times per year (electronic).

RECENT BOOKS: Trial Tactics; Street Legal; The Citizenship Flowchart; The State of Criminal Justice; Leapholes (fiction); Achieving Justice: Freeing the Innocent, Convicting the Guilty; ABA Standards for Criminal Justice; Annual Survey of Supreme Court Decisions; Asset Forfeiture: Practice and Procedure in State and Federal Courts; The Child Witness in Criminal Cases; The Criminal Lawyer’s Guide to Immigration Law; The Shadow of Justice (fiction).

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Jon May

Creative Criminal Defense Consultants

Jon May is the founder of Creative Criminal Defense Consultants. He practices federal criminal defense across the United States.