BEASTS OF BURDEN

I received an email from a friend last week.

He is a criminal defense lawyer, a damn good one. He told me that he was just barely getting over the PTSD (his word) of having shepherded an otherwise good human being to fifteen years in prison in a very serious case that, had it gone to trial, a jury would have surely given him a life sentence. Adding salt to the wound, the client’s family sees my friend as the enemy, despite the fact it was the client who committed a terrible crime that left him with the Hobson’s Choice of accepting a deal for fifteen years in prison over a life sentence.

It is often the case that the client or the client’s family blames the lawyer for the situation the client got himself or herself into or the sentence they get as a result. Failure to accept responsibility for their circumstances is the hallmark trait of most defendants and their families – the families are oftentimes enablers of the client’s behavior and the stories clients tell their families about their cases don’t even remotely resemble the facts or the truth. The lawyer is left looking like an inept moron and is powerless to correct any misconceptions because of attorney-client privilege.

My friend is no rookie. He’s not going through first-time battle trauma. This is a man with a distinguished twenty-six-year career in criminal practice who has defended numerous clients charged with serious crimes, many of them high-profile media cases. The mental and emotional fatigue, the second-guessing and self-doubt, running and re-running everything you’ve done on an endless mental loop, questioning if you did it right or if you could have done more is the burden we bear in this line of work.

I have often joked that criminal defense lawyers must have been abused children because we are drawn to a line of work where we get abused daily. We deal with people with whom we wouldn’t otherwise associate and manage daily crises and varying levels of abuse by the courts, the State or our clients. Every day is a fight. It got me thinking about “normal” people and “normal” lines of work. For example, I think of my friends who are in real estate. They have the pressure of starting every month at zero. They have to get new listings and sign new buyers. They deal with regular folks, people with education and manners. People with jobs. They walk clients through homes and pitch the vision of what the client’s life would be like in that home, the dream, family togetherness. The greatest stressors are losing a sale, a listing, or a client or finding new business. Very different from a typical criminal defense lawyer’s day.

Almost all of our clients are people with whom we have nothing in common. Our clients come to court in orange jumpsuits and handcuffs or on a chain with several other defendants. Some are poor, many are uneducated and many are unemployed. Their manners are limited to calling you “sir” or “ma’am” which often devolves into calling you names not heard in polite society when you give them news they don’t want to hear. They are often charged with serious crimes. Prosecutors read probable cause to the judge that goes from the comical to the macabre. As you stand next to your client you are hit by the surrealism of listening to how a defendant sexually assaulted a child or committed murder or aggravated robbery. The daily horror show of criminal work. Every day we take on the burden of defending these people. And it is a burden.

When you take a case, you take on the responsibility of putting everything to the side and representing that client zealously. You learn the client’s family history, mental health history, and criminal history. You review the facts and evidence. You pore over statutes and cases. The ultimate goal is to pull your client out of the hole they dug for themselves and get the best result possible, whether that be by dismissal, plea agreement or through trial. Throughout the process you build a relationship with your client. You deal with their anger and their fears. You live the case. When you take on a case, you consume and carry with you everything the client is accused of and that includes everything that happened to the victim. Your mind absorbs all the ugliness and over time it becomes a soul-crushing exercise to see and hear what people do to one another. Watching a three-year-old child’s videotaped statement describing how she was sexually abused or looking through the scene photos and autopsy photos of a murder case leaves a mark. All of this takes its toll. None of it can be un-seen or un-heard, it stays with you forever. Over time, each case will work its way to the back of your mind where it usually remains quietly but leaves a permanent residue. The only way to successfully defend your client is to force these things to the side and look solely to defending your client because nobody else will. Nobody else gives a damn.

And nobody gave a damn when it mattered. Oh, the families will bang the drum and make noise about helping and supporting their loved one but the truth is that in the majority of cases they weren’t around when they should have been and didn’t do what they should have done as parents so their son or daughter wouldn’t be in their current position in the first place. Like, teaching them not to take drugs, not to steal or rob, to go to school; the things that form productive human beings. But they want the lawyer to quickly fix what they broke over many years and that is just not possible.

Despite our best efforts and the countless hours and sweat we invest in a case, in our client, despite the arguments with prosecutors and arguments we make to the court, we are sometimes unable to pull our clients unscathed from the mangled messes in which they’ve put themselves. Sometimes you have to make the Hobson’s Choice. Sometimes you have to tell your client that fifteen years in prison is better than a life sentence. That giving up a chunk of their life is necessary to save the rest of their life.

The recriminations come immediately. “This is my life” or “You’re playing with my life” are common refrains. Forget that they didn’t think about their life when they made the decision that led them to face prison. The client hates you. The client’s family hates you. They tell you they wouldn’t be going to prison if they had a better lawyer. They accuse you of not working on their case. Sometime down the road you may get a call from a lawyer who represents the client on appeal or a writ, claiming you didn’t represent your client effectively. In this profession we are often derided and rarely appreciated. It defies description how it feels to bust your ass for a client only to be told you didn’t do enough, weren’t good enough.

I don’t think any of us anticipated what we were getting ourselves into when we chose criminal law as our calling, and I don’t know how many of us would have continued forward had we known what awaited. Not because we don’t believe in what we do and the fundamental right of every human being to a vigorous defense when charged with a crime, regardless of the crime. But because too often the work we do is not appreciated and often criticized. Like my friend who was vilified by his client’s family after doing everything he could do for his client. I didn’t write this piece in the hope that regular folks would feel sympathy for criminal lawyers. Frankly, we don’t expect it. I wrote it for my friend and my colleagues and for myself as a reminder that if we have done everything that could be done for our client, if we have truly fought for them, if we left it all out on the field, we have carried the burden required of us. We don’t have to carry the burden of the client’s unrealistic expectations or disappointment.

By Brian M. Roberts

First published August 22, 2016, on the Reasonable Doubt blog Click here.

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