South Carolina Criminal Defense Blog

The Montrose County, Colorado, District Attorney Myrl Serra has been disbarred following his convictions for criminal extortion, unlawful sexual contact, violating a protective order, harassment, and violating the conditions of his bail. There were multiple allegations against Serra of fairly egregious sexual misconduct against women including office staff, including groping the women, and attempting to force women to touch his penis/ masturbate him in his office.

One thing that stood out to me in the articles is that, long before an investigation was begun against Serra, at least one woman sought a restraining order against him which was denied by the magistrate, despite allegations of Serra physically assaulting her and her fiancee, and then a second request for a restraining order against Serra was denied despite her claim that Serra was sending sexually harassing messages to her phone.

Whether it is in court or out, there is a tendency to believe prosecutors - we want to believe that they are good human beings, who wear the white hat and who try at all times to do the right thing and make the right decisions. I want to believe that. But it is an inescapable fact that, for some people, power leads to corruption. Some like the feeling of power too much, and begin to abuse it for their own gratification - whether the gratification comes from the need to control, the need to win at all costs, or some other dark emotional need the person has. In some cases, the abuse of power leads to crime. In many others, it leads to abuse of the system, abuse of the litigants, abuse of the people who live and work in the system.

It can lead to Brady violations and the abuse of prosecutorial discretion - when courts do not punish or provide any sanction for misconduct, and when disciplinary bodies do not provide any sanctions for prosecutorial misconduct, some prosecutors will abuse their freedom.

For some, it may lead to a feeling of un-touchability, like the person is above the law, and for some this may lead to clear cut criminal conduct like that of Mr. Serra. I think that Serra could never have gotten to that point unless judges, attorneys, employees, and all around him were looking the other way and tacitly excusing his conduct for some time before it came to light. It's a slippery slope that we create for those in power - how many others are struggling to keep their footing on that same or similar slopes?

H/T the Legal Profession

Friday morning in Horry County Central Jury Court, the magistrates speak to the members of the jury panel before letting them go, thank them for their service, sometimes answer any questions that they have. This past Friday, I was there as the two magistrates spoke to the panel, both magistrate court prosecutors were there, and two other defense lawyers.

One magistrate spoke to the panel and thanked them for their service, for being there for the entire week. She thanked them and explained that, although not many cases were tried, the fact that they were there allowed us to move over 300 cases. Some cases were tried, some defendants did not appear and were tried in absence, and many other defendants entered guilty pleas because the jury was there waiting.

The magistrate re-introduced the two assistant solicitors, and asked them to say a few words. Each prosecutor kindly thanked the jury panel for their service. The magistrate then noted that the prosecutors were there to seek justice, and that there were other attorneys present, whose job was not to seek justice, but who were very much appreciated for our help as well. She then asked if we would like to say anything.

I stepped forward and introduced myself as a defense lawyer, told the jury panel that I had to disagree, because my job absolutely is to seek justice and that is what I do, and then told the jury panel that of the over 300 cases that were resolved and did not go to trial, not all were guilty pleas. Our magistrate agreed that this is true.

I don't write this to criticize the magistrate who spoke - there is no doubt in my mind that she meant well and that she did nothing inappropriate, not intentionally. She is a wonderful person and judge, tries to be fair to all parties, and I appreciate that more than she knows. But - the unintentional bias that results in suggesting to the jury that defense lawyers do not seek justice, that the prosecutors are the only ones who wear a white hat, and that the cases that are resolved because of the jury's presence are resolved only by guilty plea, poisons this jury pool for their future service.

The same speech, given to a jury pool of approximately one hundred people, at the end of each week of jury court, surely influences their thinking and many of them will be called again for jury service.

I sometimes have told people that my job is not to seek justice - my job is to win my client's case. I often tell people that the prosecutor's job is not to win their case - it is to seek justice. The Supreme Court and the ethics rules agree. But I am not so quick to deliver the white hat to the prosecutor alone.

To put a more fine point on it, my job is to seek Justice - there are many different definitions of Justice, several of which i subscribe to and many of which I do not. The Justice that it is the prosecutor's duty to seek most likely is a form of institutional, retributive Justice:

Justice for an institution, such as our court system, is determined by the standards of our day, by a fluid agreement made by leaders and representatives of a society as to what Justice should be, what is right, what is wrong, what is permitted and what is not, what the punishment for violations of the social norms should be, when reparations should be made and how.

Sometimes the Justice that a prosecutor seeks is a type of Restorative or Retributive Justice - they are seeking to make a victim whole by delivering to them restitution or by exacting revenge on their behalf. In a civil case this is more akin to the type Justice I may seek as an advocate, but I am not sure this should be the prosecutor's position. The prosecutor represents the State, or the People, not the victim in any given case.

What I seek is a more individualized Justice, on behalf of my client alone:

There is Justice on each side of a dispute. In the courtroom, Justice is different for each person present. It is the advocate’s job to find what Justice is for his or her client, to show it to the jury, to be sure that the jury understands the client’s story and what Justice means for that one person in the room, and to empower the jury to give it to them when no one else would or could.

We should not be so quick to give up the white hat to prosecutors alone when speaking of Justice and who seeks it in the courtroom.

Some time ago, during a plea hearing on trafficking cocaine charges, the prosecutor said to the judge something like, Judge, sure this defendant seems repentant, and seems like she is trying to stay clean, sure she has had a rough life, but judge all is not as it seems, and "something sinister lurks beneath." How poetic.

The defendant was a heroin addict who had stayed "clean" for some time, attending a methadone maintenance clinic and using the legal methadone instead of heroin. One day leaving the clinic an old friend approaches, asking, then begging her to hook her up with someone who can sell her heroin. She is getting sick, and in bad shape. Our defendant says no, and leaves, but the old friend then continues to call her and text her until our defendant gives in. Our defendant calls someone she knows, sets up a buy, and gets the girl what she needs. Days later, a warrant is served on our defendant for distribution of heroin.

The narcotics officers turn over incident reports, a case report, a video of the actual buy, but there are no recordings of the texts or phone calls where the informant is begging a reluctant defendant to buy drugs for her. It is a sketchy, shaky entrapment defense at best. Defendant is told by her prior attorney that she must plead guilty to a negotiated three year sentence, despite no prior record, and she calls us the day before her case is going to be called for trial.

The judge agrees to a continuance . . . of about four days and orders the case to trial. After many long hours of preparing for trial around the clock, reviewing the tapes, serving new discovery requests on the prosecutor, researching the dismal state of the law on entrapment as a defense, discovering the story, psychodrama sessions with our client, preparation for her testimony and telling her story to an ad hoc focus group made up of people from our building, defendant caves and tells us she cannot go to trial and she cannot testify. She will plead to the charge straight up, turning down the prosecutor's offer of three years.

At the plea hearing, we tell her story to the judge, she admits to the distribution, and we argue for a probationary sentence. She is sent to prison for an active two year sentence - better than what her prior attorney urged her to agree to, but still a miscarriage of justice from my point of view. She will serve not much more than a year before she is released, assuming that she gets all of the credits that she is eligible for.

We have narcotics officers who are targeting drug addicts, using them to target in some cases other drug addicts, using them in some cases to drag people back into their addiction, taking them out of treatment and sending them to prison. In this case there was not even an effort on the part of the narcotics officers to apprehend the drug dealers who sold the heroin to defendant and informant - the officers watched the dealers' car arrive, watched the transaction happen, watched the dealers pull off and leave, and then went and had a warrant signed on our girl only.

The prosecutor had the same discovery, the same video, the same information that we had. The prosecutor quite possibly had considerably more information than was provided to us. Yet, the prosecutor pushed for this girl to receive an active prison sentence, knowing how law enforcement came about this arrest, that it was "not quite entrapment," knowing that the dealers drove off with impunity. This is the justice that we seek in our courtrooms.

Something sinister lurks beneath, indeed.

It's Sunday morning and I'm doing nothing. There are cases that I want to write about, there are cases that I want to be working on this morning, there is a stack of work waiting for me at the office, but I am doing nothing. Reading cases and blogging about them takes time and is work. I am not working this morning.

Most weeks I work 7 days a week, and if I put in less than 12 hours I feel like I am letting someone down, but sometimes I have to just back off and try to relax. Yesterday I drove to Charleston and took a test for certification in criminal trial advocacy by the National Board of Trial Advocacy - it's a fairly long process getting approved, including the test, providing documentation that I have tried so many cases, examined and cross examined so many witnesses, examined and cross examined so many expert witnesses, letters of reference from judges and prosecutors, etc.

South Carolina does not certify criminal trial lawyers, and so the only option for certification is with the national board - I don't know this for a fact, but I've been told the reason for not certifying criminal defense advocates in South Carolina is so that indigent defendants will not demand board certified counsel. I don't know, but the effect is that South Carolina does not recognize criminal trial advocacy as a valid practice area where some are recognized for their experience and advocacy skills.

I've just finished reading Of Murder and Madness - it is decent and I recommend it to anyone who is a prosecutor or defense lawyer and who has ever tried or will ever try a case with a defense of insanity. It was difficult sticking to the story of the book, as throughout Spence digresses into his personal story, often tying his own story to that of his client when he can. I had already read his autobiography, The Making of a Country Lawyer (good), and Gunning for Justice (very good), and Gerry's personal story begins to repeat itself throughout these books. They are good stories the first time, but in Of Murder and Madness I found myself flipping the pages and skipping the sections where he talks about himself.

Gunning for Justice may be one of the best lawyer books I have read, and I recommend it for all attorneys, civil, criminal, prosecution and defense.

It's Sunday morning and I'm doing nothing. Maybe I'll come back and hammer out something real later today.

Springtime has come to Myrtle Beach. It's like the town has been in hibernation, subdued and quietly waiting for summer. Although not in full swing yet, there is more traffic now than there has been for months, vacationers are walking on the boulevard, there is an antique car show down the road from my office, and a comfortable bustle outside. It's like the city is waking up from a long sleep, stretching, yawning, and smiling. The morning sunlight sparkles on the ocean just a few blocks from the office. This is without a doubt my favorite time of year.

I was reading a Washington Post article about how the sex trade has changed in recent decades (H/T Balko), and came across this thought provoking passage:

When it comes to the sex trade, police officers have in recent decades functioned as quasi-social workers. Peter Moskos's recent book, "Cop in the Hood: My Year Policing Baltimore's Eastern District," describes how police often play counselor to sex workers, drug dealers and a host of other illegal moneymakers. In my own work, I've found that cops are among the most empathetic and helpful people sex workers meet on the job. They typically hand out phone numbers for shelters, soup kitchens and emergency rooms, and they tend to demonstrate a great deal of sympathy for women who have been abused. Instead of arresting an abused sex worker, police officers will usually let her off with a warning and turn their attention to finding her abusive client.

Now, police are not trained as social workers. But really - I have a degree in social work and it's not all that. It consists of a lot of theory, some of which is useful and some of which is not, and most of which is academic. To be a social worker it does not take a degree, it takes compassion. If you care about people, you are in position to help people, and you take advantage of that position to help people, you are a social worker.

Many professions consist of wearing different hats at different times and depending on the situation at hand - lawyers, teachers, social workers, and others are at different times acting as advocate, teacher, broker, etc. Police fall into this category as well, or should.

It seems that, at least some of the time, police are in a unique situation to help people - like defense lawyers, they are constantly in contact with those who desperately need help, some of whom do not understand yet that they need help but many of whom do and are crying out for it. There are doubtless many opportunities that present themselves where a police officer can help a person, connect them with services or a "real" social worker, say a kind word or give encouragement at the right time - the sky is the limit and surely unanticipated possibilities present themselves on a regular basis.

It seems that this could be a large part of the job of the police officer. It is not something that I see in my practice, but that does not mean it does not happen - I write here quite often about police abuse and misconduct, and taken in isolation this paints quite a cynical picture of the role of the police in our society. We know, or hope, that these are the officers who are on the fringe, and the idea is to keep the public informed of what is actually happening and stop police abuse before it becomes common practice in any particular department.

I would like to hear any officers' opinions about what they do, can do, have done, or feel that they should be doing other than making arrests. If you are out there and reading, I'd like to hear from you in the comments or by email, anonymously or not. Thanks.

That being said, I did a google search for "cops as social workers," hoping to find some feel good stories or other thoughts on the matter, and instead the first page was filled with links to a news story on how cops in NYC beat up some social workers, dragging them by their hair from an apartment where they were supposed to be taking a child into emergency protective custody with protection from the police.

From the Consumer Attorneys of California:

That should be no-brainer. But let's stop for a minute and consider - Comrade Duch, or Kaing Khek Eav, who was a Khmer Rouge leader and in charge of a detention/torture facility in Cambodia, was sentenced to 30 years for his role in the murder of 12,380 people over a 4 year period. That's only the small part that he played personally in the devastation - close to 1.7 million people (a quarter of Cambodia's population) were executed, starved, or died from forced labor during the rule of his government. Duch will get credit for 11 years time served.

In South Carolina, drug trafficking (possession of larger quantities of drugs) is punished by mandatory minimum sentences of 25 and 30 years. In the federal courts, sentences handed down for drug conspiracy convictions range into the hundreds of years ("but I can't do that much time," protests the defendant. The judge smiles gently as he says, "just do as much as you can, son.") The sentence is determined by the sentencing guidelines and is enhanced by factors such as the defendant's criminal history, the weight of drugs that are attributed to the defendant by others in exchange for time cuts on their sentences, and "relevant conduct" - even conduct that the defendant has been acquitted of.

In South Carolina the minimum sentence for murder is 30 years, and it is common for a defendant to plead to the minimum 30, or to a lesser sentence if the state reduces the charge to manslaughter. The mandatory minimum for some levels of trafficking cocaine, crack, or heroin is also 30 years. So what is the worse crime, murder or the possession of drugs? What about the murder of over 12,000 people?

Read this. Matt Brown's description of a brief encounter with a probation agent conducting a pre-sentence interview captures an irony that is ever-present in our criminal justice system:

After the probation officer finished, she shuffled past me with a faint smile on her face. I caught a glimpse of the defendant in the visitation room. He was grizzled, with a glass eye and scars everywhere. He was rail thin and had a head of curly black hair. I looked back at the probation officer. She waited impatiently to get buzzed out of the jail hallway while fiddling with her ponytail.

The stupid questions and the stark contrast between the probation officer and the defendant made a strong impression. She shouldn’t be in a position to report on him. He’s experienced things that she can’t even fathom. I’d guarantee it.

I imagine the probation officer sitting in her office, surrounded by bric-a-brac as she types up a report about that man’s antisocial personality and escalating drug use. A judge will read what she writes and commit a fellow human being to state custody for a term of years. The judge may have struggled less in his or her life than the probation officer.

What kind of sick, twisted system do we have where the coddled get to judge those among us who’ve had real life experiences?

The probation officer could just as easily be the man's defense lawyer, the prosecutor, or any other person that comes into contact with him in the system and participates in determining his fate. I imagine that many readers of this blog and Matt's may relate more to the probation officer in the story, and that many of those readers just don't get it. Also, it's an academic observation - the coddled among us are most often the ones who are privileged to attend universities, obtain degrees, and take positions of authority over the rest of us - that's not going to change.

I was reflecting today on the Fourth of July. Independence day - our celebration of winning our independence as a nation from England, an oppressive, imperialist nation which exerted its influence across the globe by attempting to conquer and control as many foreign lands as possible and then exploit them for as long as possible.

Really, the colonists who rose up against England were not the locals who had been conquered and exploited. They were the other Europeans who had come to make their fortune, or to escape religious persecution in the Old World, or for whatever reasons they came. But that's another story. So, we rose up against England, many people died, and we formed a new nation based on freedom, and enshrined those freedoms in documents such as the Constitution and the Declaration of Independence.

Today, most of our citizens have no idea what those documents say or mean, nor do they care. Freedom sounds good - but it should not get in the way of law and order, establishing and maintaining Christianity as the dominant religion of our country, or suppressing undesirable viewpoints. We quickly became an oppressive, imperialist nation which exerts its influence across the globe by attempting to conquer and control as many foreign lands as possible and then exploit them for as long as possible. We have become much better at this than England ever was.

In a few minutes, I'm going to watch a fireworks display with my three year old son, and we'll have a good time. He'll enjoy the pretty lights and the loud noises. I'll stand in awe as I think of how we are celebrating the birth of a nation, and I'll imagine I am seeing the red glare of rockets and hearing the bombs as they burst in the air above us. I love this country, and what it is supposed to stand for. But I wonder if or when we, the human race, will evolve from our violent nature - will we ever stop trying to control one another, killing one another, exploiting one another.

I'm not trying to detract from the celebration of our country's revolution - it is a glorious thing and I am proud of the freedoms that I and others fight to preserve for us every day (and I am talking about attorneys in the courtrooms and in the dry halls of the legislatures). But, I wish that there were a better legacy for my son as he grows and learns what it is all about, that we could see that point in history where the ugliness stopped, where tolerance, intelligence, and compassion seemed to take hold around the world. Happy Fourth of July.

Restoration Of 'Star Spangled Banner' Uncovers Horrifying New Verses

(Reproduced in part from last year's July 4th post)

On the Fourth of July, we need to stop and consider the reasons why the Founding Fathers drafted the Declaration of Independence, and why we fought a bloody war to gain our independence from England. Most of the reasons are enshrined in our Constitution and its amendments, and they are central to the practice of criminal defense. Our freedoms that we fought for in 1776 we must continue to exercise and to fight for today, lest we lose them. They are:

The right to trial by a jury of our peers, the right to be free from unreasonable searches and seizures by government agents, and the right to have the government prove their case against us beyond any reasonable doubt before we can be found guilty of a criminal act and our personal freedom forfeited.

The right to speak freely, to criticize our government, to associate with whomever we want, to practice the religion of our choice, the right to bear arms (in part to remind our government of how we gained these freedoms in 1776), the right to due process of law, the right to a speedy trial when we are accused of a crime, the right to confront the witnesses against us, and the right to be free from cruel or unusual punishments.

The right to assistance of counsel. Happy Fourth of July.

Please take a moment to read The Declaration of Independence and the Amendments to the Constitution.

Today someone implied that I hate cops and prosecutors; they seemed to accept this as a matter of course. I don't hate anyone, and certainly not cops and prosecutors - I suppose every so often I need to take a moment to say so. We need police and we need prosecutors to enforce the law; although I may confuse some from time to time, I am not a complete anarchist and I know that we need laws and that they need to be enforced.

We don't need a law for everything under the sun that any person disagrees with, and I think that many of the bottlenecks in our system would be resolved if 1) we do not try to legislate morality; 2) we do away with victimless crimes; and 3) we realize that incarceration is not the solution to every criminal justice problem. A "justice" system should be based on compassion, inclusion, and the common good, and not the baser human desires to control or to hurt others in the form of punishment or revenge.

But I'm off topic already - I'm supposed to be talking about why I don't hate cops. Police, prosecutors, judges, politicians, all are human beings like you and I. I have the utmost respect for the jobs that each do respectively, and we are in professions that have a profound impact on other people's lives, sometimes one at a time and sometimes on a large scale. In my job I've seen some wonderful moments of human compassion, I've seen wrongs that have been righted, I've seen guilty parties and victims come together in healing moments, and I've seen police officers commit selfless and noble acts. I've also seen tragedies, I've seen people who were probably innocent sentenced to live in a cage, and I've seen victims of crimes who left courtrooms empty-handed and empty-hearted.

I'd like to hear about and blog about more of the positive things that law enforcement and others in the legal profession do, and I appreciate any suggestions that you have, or stories that need to be told.

But someone also has to point out the abuses of power, the ethical violations, and the disregard for the Constitution and the rule of law that some police and prosecutors engage in. Usually, it is not a personal attack on that persons character. Like most defendants, the reasons for the conduct I complain of - an officer loses his temper, lashes out, and hurts someone; a prosecutor does not disclose evidence that could show a defendant's innocence; a politician proposes a law that does more harm than good - the reasons are that these are people, they are human, and they are motivated by the very human motivations of anger, greed, or need for power. But shouldn't they be held responsible, just like, or even more so because of their position of trust and power, the ordinary citizen who is accused of a crime?

For the cops who read my blog (if there are any), I want to acknowledge that, when I am complaining about cops on the blog, I am not talking about most cops most of the time. I realize that you are human, that you feel, love, have families and lives outside of work, and that by and large you are in your job because you are trying to do the right thing. It is, and should be, more than just a job. Thank you.

Truly, I think that things are rarely exactly as they seem. Our perceptions of people, based on a single exchange or even multiple exchanges in any given context, show only a snapshot of a moment in time. When recreating the events that led to a person's arrest, the different pictures created by defense and prosecution may both be skewed and sometimes it is impossible to find the truth.

Sometimes there are the rare moments when a lying officer is caught on video or audio, and we see that things are not as they seem. Similarly, sometimes a defendant is caught lying on video or audio. When there is no hard proof, unfortunately, most people will believe the officer and will trust the authorities, despite the fact that our system is based on the principles of proof beyond a reasonable doubt and innocent until proven guilty.

Many assumed that Atlantic Beach Mayor Retha Pierce was guilty of DUI, based on her recent string of arrests (and I don't doubt that she has a valid defense in each instance), but she appears to be vindicated by a recent announcement of the results of her drug and alcohol tests:

Drug tests Atlantic Beach mayor Retha Pierce took at Quality Drug Screening in Sumter show no drugs or alcohol were in her system when she was arrested on DUI charges in Marion County in September. . . .

A hair test taken on October 14 at Quality Drug Screen showed Pierce had no cocaine, marijuana, opiates, methamphetamines, or phencyclidine in her system.

A urine test administered by the South Carolina Law Enforcement Division also showed Pierce had no alcohol in her body when she was arrested.

Webb said the tests are admissible in court and the results cover a span of six months.

It is rare that a person wrongfully accused of drunk driving has the forethought to go and get a drug test done (or to call a DUI lawyer before their court date), but it can make the difference between a criminal conviction and a clean record.

In law school, lawyers-to-be are taught to think rationally, to analyze issues, to brief cases, to present cases logically. We are taught to live and to practice law almost exclusively with the "left brain" functions (logical, analytical, sequential, objective), and the "right brain" functions (intuitive, subjective, creative) wither and die for many of us. Juries are not won over by logic; they are won over by emotion. We need to nurture the "right brain" and we need to apply it in our cases and our presentations to the jury. Juries do not like "lawyers" - they need to see us as real people, and they need to see our clients as real people and hear our client's story if they are going to help our clients.

In the past, I've been an amateur artist and musician, and those qualities fell by the wayside as I buried myself in the practice of law. One thing that I took away from the TLC is a renewed love for art and the ability to create it. I believe that singing and writing music, painting, and reading and writing poetry allows us to fully live, and ultimately makes us better advocates in the courtroom.

I've been back from Trial Lawyers College for a couple of weeks, and more or less back into the swing of things around the office. A few people have asked me to write about the experience at the ranch, but it is hard to sum up. I will try to incorporate TLC methods into blog posts as I'm going to try and incorporate them into my practice and life in general, and I'm happy to talk with anyone about it. I can say that it was an amazing experience, that I will probably be processing what I learned for months to come, and that I would like to stay as involved as I can with the College in the future, with Regionals, the grad program, and anything else that I can be a part of.

Business as usual is not really business as usual. We are making changes around the office, in how we prepare for trial, in the type of cases we are going to accept in the future, and, speaking for myself, in my approach to the practice of law in general.

Thomas Jefferson Defined it in the "Declaration of The Rights of Man and The Citizen" as: "Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law."

What is freedom? I was listening to a show on NPR about this very question, and they were interviewing a woman who had just been released from prison a few weeks ago. She had been convicted of possession with intent to distribute drugs and was sentenced to 10 years in prison. In her state, the mandatory minimum sentence that she had to serve was 5 years, before she was eligible for parole.

The interviewer asked her, did she consider what her freedom meant to her when she was selling drugs, before she was arrested, and her response was no – like so many people, she did not stop to think about what the consequences would be if she were caught, and she said that if she had considered it, it would not have mattered, because she felt that she was invincible at the time, that she was untouchable, that nothing bad could happen to her.

She said that as she stood before the judge in the courtroom, awaiting his decision as to what her sentence would be, then she considered what her freedom meant to her. But that moment was too late. She would not see her children, her family, her friends, the outside world, for at least 5 years of her life.

I think of the above quote from Thomas Jefferson, that “Liberty consists in the freedom to do everything which injures no one else,” and I wonder how this applies when a person’s freedom is taken from them for a victimless crime such as a drug offense. We forfeit our right to our freedom when we do things which unjustifiably harm those around us, but too many of our laws today are unjustified in terms of the harm done to others. Laws should be designed to protect us from each other, not from ourselves.

On the Fourth of July, we need to stop and consider the reasons why the Founding Fathers drafted the Declaration of Independence, and why we fought a bloody war to gain our independence from England. Most of the reasons are enshrined in our Constitution and its amendments, and they are central to the practice of criminal defense. Our freedoms that we fought for in 1776 we must continue to exercise and to fight for today, lest we lose them. They are:

The right to trial by a jury of our peers, the right to be free from unreasonable searches and seizures by government agents, and the right to have the government prove their case against us beyond any reasonable doubt before we can be found guilty of a criminal act and our personal freedom forfeited.

The right to speak freely, to criticize our government, to associate with whomever we want, to practice the religion of our choice, the right to bear arms (in part to remind our government of how we gained these freedoms in 1776), the right to due process of law, the right to a speedy trial when we are accused of a crime, the right to confront the witnesses against us, and the right to be free from cruel or unusual punishments.

The right to assistance of counsel. Happy Fourth of July.

The Declaration of Independence

The Amendments to the Constitution

Client etiquette should dictate some form of gratitude, or at least civility, following the dismissal of your case. As much as I am used to the varying degrees of reactions from clients following nothing short of a complete victory, it still rubs me the wrong way when a client or their family attack me in a negative way after I've just gotten their case dismissed.

At one extreme is the client who is ecstatic. Their tense, frightening trip through the South Carolina justice system has come to an end, they have won without ever having to pick a jury, they hug myself or other staff from my office, and within a week I receive a thank you card that brings tears to my eyes.

At the other extreme is the client who, upon hearing that their case has been dismissed, immediately finds something to blame on the attorney and begins heaping abuse on us. For example, I inform my client and his family that the client's case will be dismissed within a short period of time, however we are only waiting for the paperwork from the prosecutor to make it official. We have prepared the case for trial, we have interviewed witnesses, we have prepared a pre-trial motion that will win if we ever see the inside of a courtroom in this case. I have spoken to the prosecutor and he/she realizes that this is not the best case for the state and, as is sometimes the case, it is the right thing to dismiss this particular charge.

I am told by the family that if I don't get them paperwork right away the client will lose a valuable job prospect. I let them know I have spoken to the prosecutor about it and will get them the paperwork as soon as possible. They continue to call, and I in turn continue to ask the prosecutor, needing a disposition sheet. Finally I get a call from client's mom informing me that my client has lost his job because I did not get the case dismissed fast enough.

There will be other job opportunities. In the meantime, your son is not going to jail and does not have to suffer the uncertainties and fear of a trial by jury. His record is clean. A simple thank you would have sufficed.

When a client is looking for either a dismissal or a jury trial, it will take time. In my initial consultation with any client, I am upfront and honest about how long any given case could take before it comes to trial and I never tell a client that they will get a speedy disposition. In Myrtle Beach city court, for example, it can take over a year for a simple misdemeanor case to come to trial. In the magistrate courts, six months is average and in general sessions two years or more is not unusual. If we have a case that should be dismissed, that does not mean that it will and if it is, it is not likely to happen until it is close to the time in which the case would have gone to trial. Regardless of the merits of our defense, we have to be prepared and you have to be willing to take the case to trial because, unless the injustice of an arrest is clear, the prosecutor has no obligation to dismiss your case.

I'm really not so bitter about the few clients who are not grateful for the work that we do for them, although I do need to vent once in a while. I do what I do because I love what I do, and, although I appreciate it, I don't need thanks to continue doing my best. And, while many defense attorneys complain about how this is a thankless job, I truly have found that I am thanked constantly by my clients and their families.

Yesterday, I had a consent bond order that needed to be signed by a judge, who just happened to be holding civil non-jury court. Because I had a small stack of orders that needed to be reviewed and signed, the judge had me wait until he finished with the cases in front of him, which took about 3 hours. Non-jury court consists of a lot of motions for dismissal, motions for summary judgment, motions to compel arbitration, and various other pre-trial litigation in civil cases. People arguing and fighting tooth and nail over who gets to take whose money, in other words.

After watching about 30 minutes, my brain was screaming and I was fighting sleep. I was reminded forcefully of why I practice criminal defense and refuse to accept civil cases of any kind. It's because I give a shit about what I do - I could care less who gets whose money. I understand that civil attorneys in general make a considerably better income than criminal defense attorneys, but I don't do this for the money. Don't get me wrong, I charge a healthy fee and I have to, but if it was about money I would be suing this corporation or that, and I'd be up there in civil non-jury court arguing with someone's insurance company about where the money goes.

Defense attorneys, by and large, don't do this for the money. We have to pay the bills and run an office, and compensation is good, but we do this because we love what we do and because we believe in what we do, whether it is helping people or whether it is fighting to preserve what little rights we have left as citizens.

In law school, I remember there was an adjunct professor who taught (and practiced) insurance law. Near the end of the semester, he gave a talk about the practical realities of the practice of law. The only thing from that talk that I remember was when he said that it was a good idea to go to work as a public defender or a prosecutor for a couple of years, but that you shouldn't stay there. He said if you stay too long you will never be able to get into the swing of billing by the hour, and prospective employers would label you as a "cause lawyer." He said "cause lawyer" like this was a bad thing.

I was confused. I (mistakenly) thought that lawyers became lawyers because they wanted to fight for a cause. I thought that was what lawyers do. I've discovered that is what some lawyers do, but many just want a job that pays them a lot of money. I decided, after that class in law school, that I was a "cause lawyer," and that has stuck with me over the years, even in private practice. There are various causes that we fight for - first and foremost the cause, whatever it is, of the client who is sitting in front of us at any given moment. We move from cause to cause over time, and sometimes we take on an over-arching cause, or an issue that needs to be addressed. For me at the moment, I am concerned with reform of our indigent defense system in South Carolina, and I am concerned with reform of our rules which allow for jailhouse snitches to perjure themselves at the request of prosecutors.

I suppose for many civil attorneys, they do have a cause, which is the motivation to earn as much money as possible. I don't suppose there is anything wrong with that at all, but it is not for everyone.

Lately, I've been reading recent US Supreme Court decisions but always stop short of blogging about them, prepping cases for trial, talking with clients and their family on the telephone and at the office, visiting clients at the jail, making court appearances, researching legal issues, drafting motions and making lists of subpoenas to be served in upcoming trials, dealing with personnel issues at the office, and in general spending almost every waking moment working in one form or another, whether I am at the office or at home.

Blogging and making it meaningful takes a lot of time, and I'm duly impressed with those who faithfully devote their time to it almost every day. It does take dedication but it is worthwhile for many reasons - keeping abreast of case law, getting information to the public, and providing me something to do that is a lot like work but enough not-like-work that I can pretend like I'm taking a break from work while I do it.

Anyway, I'm going to relax and watch the television for a few hours. Thanks for reading.

Brian Tannebaum, Scott Greenfield, Mark Bennett, and now Paul Kennedy have been debating the pros and cons of guilty pleas v. trials.

It began with Tannebaum's thoughts on how we should be trying more cases:

After being in trial this week I reaffirmed that trials are the only way we test evidence. Sure, we can file motions to suppress and motions in limine, and we should. The only way evidence is truly tested, witnesses are truly explored, though, is with a jury present.

We know that cops and agents won't talk to us, but when a jury hears that, it's different. We know that deceit is legally used to gain confessions, but when a jury hears this, it's different.

Evidence looks and sounds different to a lawyer than it does to 12 lay people. So many people plea guilty that the public is left with the notion that the system is working. When innocent people are released, they yawn.

We need to try more cases.

Bennett agrees, noting that it is the client's decision, although the lawyer can certainly nudge them in the direction of taking their case to trial.

Greenfield, however, points out that it is not our decision - it is the client's decision whether to plea or go to trial and it is theirs alone:

There are only a few decisions that belong exclusively to the client. Whether to go to trial or take a plea is one of them. It is our ethical obligation to do two things: Inform our clients completely, honestly and as precisely as possible of the factors that should be considered in making the decision, and honor their choice. Neither side in this disagreement appears to demonstrate a firm grasp of this duty.

As I've discussed many times before, lawyers have the ability to influence a client's decision to go to trial or take a plea. We can do it overtly or we can do it through the manner in which we inform them of the factors to consider. We can persuade, manipulate and control the client's free will. We can bend them, twist them, shape them and mold them. Both sides in this disagreement believe that it's their right or duty to do so. They are wrong.

I agree with Scott's statements in principle. But it is an inescapable reality that client's decisions are influenced by their attorney's views (and ability). Attorneys have an obligation to inform their client as to the probability of success of any given course of conduct, including a trial. Public defender clients, and those of some private attorneys, plead guilty more often because, when assessing the client's case, the public defender is more likely to inform the client that this case cannot be won, and that a plea is in their best interest. A defense attorney who is able to investigate a case and who has the ability to take a case to trial is going to be more likely to advise their client that their case can be won.

The client may also choose their attorney based on whether that attorney tries cases. When I first meet with clients, I will often tell them that if they intend to plead guilty, I can refer them to another attorney who will cost them less money. There are attorneys who never try cases and who charge accordingly, who only negotiate plea bargains (read: wait for the prosecutor's plea offer and then accept it). If I accept their case, we will investigate the case and if we cannot obtain a result that they are satisfied with, we will take their case to trial. If and when a plea offer is made in their case, it is their choice to accept it or turn it down, but if we have not investigated their case and prepared it for trial, they will not be able to make an informed decision as to whether to try the case or not.

So, I agree with Scott that the choice as to whether or not to take a case to trial is exclusively the client's, but it is a decision that is necessarily based on the attorney's advice. And that attorney's advice is going to reflect the attorney's propensity for guilty pleas or trials. And, when advising a client of the probability of success or failure at trial, one last piece of advice that I have no problem giving is: no-one ever won a trial by pleading guilty.

This morning I learned that one of my clients passed away. She was charged with accessory after the fact to a murder and the trial was set for next Monday. Although we were confident that she would be found not guilty, she was understandably concerned about the prosecution.

Her prosecution was unjustified and unnecessary - there was no evidence that she had committed the crime she was charged with (accessory after the fact involves knowingly assisting the person who committed the principle crime, by harboring them or assisting them in hiding or destroying evidence), and it was clear to me that law enforcement charged her only in an attempt to put pressure on their main suspect.

Now she will never be vindicated by a jury in open court.

It is a reminder that those we label as "Defendant" are in fact human beings, with hopes and dreams, families, and lives. It is a shame that her last days were spent in fear and with the cloud of such a terrible accusation hanging over her.

I was a bit excited when I first read this article about the brain science of guilt and punishment that was done by researchers Owen Jones, René Marois and Joshua Buckholz:

the brain assesses guilt and metes out punishment via different mechanisms - the former rationally, the latter more emotionally.

Using functional-MRI, the team probed the brains of 16 volunteers as they judged scenarios of varying culpability and criminality on a scale of 0 to 9 - from no punishment to extreme punishment.

While lying in an fMRI scanner, which images brain activity using blood-flow levels, volunteers judged clear-cut crimes, ranging from petty larceny to rape and homicide. They also judged situations where criminal guilt was more ambiguous - a torture and murder directly linked to a brain tumour, or a petty theft in a delusional state, for instance.

Activity in a small part of the prefrontal cortex seemed to mark the difference between unequivocal crimes and scenarios where guilt was more questionable, no matter the severity of the deeds. When participants judged obvious homicides, assaults and robberies, their right dorsolateral prefrontal cortexes (rDLPFC) were more active than during judgements of crimes where guilt was more ambiguous.

This region has been implicated in decisions of morality and fairness, as well as other functions unrelated to the law.

The question that came to my mind was, if we can identify the areas of the brain that are active when jurors or judges are hearing A) very bad cases that deserve lots of punishment; and B) questionable cases where the defendant should be found not guilty or where the defendant should not be punished harshly, can we then use this to frame the theory of our case so that we present a fact pattern that stimulates area A as opposed to area B, even when we have a case with particularly bad facts, thereby increasing our chances of success?

But, isn't this what we already do in trial? The brain research is simply an academic exercise explaining what happens as we do it, and, at least for purposes of trial practice, may not have any practical impact at all. When we tell our client's story in such a way that the jury is captivated, when we weave into the case the principles of justice that demand our client's acquittal, or when we ensure that the judge at sentencing knows that our client has performed community services, that his family loves him dearly, or that he is the sole caretaker of his elderly grandmother, is it that what we are doing is re-routing the jurors or the judge's thoughts away from the right dorsolateral prefrontal cortex, so that the more sympathetic areas of the brain will control their decision making process?

The study also indicates that the rational parts of the brain govern decisions regarding guilt or innocence, while the emotional parts of the brain govern decisions regarding punishment. If we are to take a lesson from that it would be that we should make rational arguments as opposed to emotional arguments during the guilt phase, and vice versa when arguing punishment. Of course, that is what we do - the guilt phase of a trial is heavily weighted towards rational argument and the punishment phase is weighted towards an appeal to emotion; but I still believe that, once the legal hook is set, it is passion and emotion that carries the day when a jury decides innocence or guilt.

If nothing else, the concept that justice may be "hard-wired" into our brain is fascinating.

The Law and Neuroscience Project is a $10 million multidisciplinary brain secrets study that was launched last year, by the John D. and Catherine T. MacArthur Foundation and with the help of 25 universities. The goal of the research is to provide "policy recommendations and materials of use to judges, attorneys and law professors concerning the appropriate courtroom application of brain science."

According to Newscientist.com, the project has undertaken research intended to establish criteria for reliable lie-detection technologies, an area that is dangerous at best when we are dealing with the law and in-court testimony.

Whether the technology is eventually deemed reliable enough for the courts will ultimately be decided by the judges. Let's hope they are wise enough not to be seduced by a machine that claims to determine truthfulness at the flick of a switch.

"To the Justice System: this is a brain on adolescence" is the title of a blog post by Adrienne Edwards, about Sylvia Bunge, assistant professor of psychology at the University of California, Berkeley, and part of the Law and Neuroscience Project, who has been researching the impact of brain science on juvenile justice:

She wants to use what she knows about the teenage brain to help society deal with young risk-takers. Bunge feels that current legal attitudes toward teen criminals needs revamping.

“Do you put someone away for life who lost his temper at 13, or do you acknowledge that his prefrontal cortex has matured since then?,” she asks. “The law is slow to change, but it will, over time, incorporate scientific evidence.”

She has found that there is a "control network" in our brains that involves the prefontal cortex, which assists in resisting impulses and ignoring distractions, and that adults are better able to utilize this control network than are children or adults with damage to the prefontal cortex. One potential application of this research is in prevention - Bunge has found, in research with elementary school children, that by engaging in activities such as playing a certain game every day, access to the prefontal cortex can be increased:

“We’re not only training their ability to tackle novel problems, but to control their impulses and ignore irrelevant information as well.” She hopes this research will eventually translate into a training program that could be used for rehabilitation in juvenile detention centers.

Bunge and Knight are particularly interested in the possibility of intervention for children from low socio-economic backgrounds, who are more likely than the average teenager to commit crimes and may have less adult guidance and education. They want to help these kids learn to make better decisions early — before they get in trouble with the law.

“We want to understand not just the influences that affect criminal responsibility,” says Knight, but we want to get in earlier in the food chain to examine exactly what the effects of socio-economic status are in brain development. Do they make you more or less likely to get in trouble with the law? And can we intervene at an early age and improve those skills?”

This sort of research is an excellent example of prevention and rehabilitation that we can and should be doing with our criminal justice dollars, rather than using them to prosecute and incarcerate more and more of our citizens each year.

I've been following Scott Greenfield's debates with the legal marketing crowd, although I admit I have been skimming most of the posts, and I completely missed the debates that were happening in the comments (I usually don't read comments on other people's blogs, too time consuming). I'll weigh in, or at least dip my toe in the water before it's over.

Week before last, Scott posted his opinion on legal marketing and the blawgosphere, essentially that marketing has taken over, it is annoying, and it demeans the profession.

What I'm seeing is that the "how to" of marketing, the advice on self-promotion and, worst of all, the language that pervades blawgospheric discourse has become increasingly directed to open, notorious marketing. Many of the most popular blawgs around are solely directed toward marketing. Many of the best writers in the blawgosphere post only about marketing. How to snag the last client on earth will be the final post in the blawgosphere.

In the comments, some legal marketing blogger types took offense and Scott told them what he thought, as he is quick to do. Subsequently, the resulting controversy caused Scott to resign (and then be fired) from Solo Practice University (I'm not sure what this is and I'm still not motivated enough to look it up and see).

After much soul searching and self-analysis, Scott finds his sea legs and decides that he will continue to do what he has always done with his blog:

I've leraned that Simple Justice has gone far, far astray of its purpose, an outlet for me to write about things that interest me. Nothing more. I will continue to write about things that interest me whenever the mood strikes. I will continue to respond to comments in whatever way I chose. I will continue to take the position in which I believe, even if it's unpopular or, God forbid, boring to others. Simple Justice will no longer be an institution. Just a blog.

I agree. Seriously, if you are going to be blunt in criticisms of others, you have to expect a backlash. F*** em. And, don't worry about this "institution" crap; its a blog. You blog about topics that you feel like blogging about, and if you do it in an interesting way people are going to read it because its interesting. It doesn't matter how other people think you should blog. Be yourself, be prickly, and if the damage done to the legal profession by legal marketing is an issue that is important to you then, please, blog about it.

I'm not familiar with any of the people that have been arguing about the legal marketing issue with Simple Justice. My opinion is that legal marketing is a necessary evil in this day and age. There is a line that should not be crossed, but of course everyone has a different opinion as to where that line is. When it comes to online advertising, I don't see a problem with it. I have a website that I believe is well written and conveys the services that I offer. Scott also has a website.

It was explained to me how to blog to drive business to my site (parrot news articles, use lots of keywords, end every post with "if you need a xxxxx attorney, call me now" etc.), and I chose not to do so. Personally, I just wanted to blog and I wanted a forum to express my opinions. I enjoy blogging - I'm sure if I was following the marketing "format" it would seem more like a chore. Blogs that follow the marketing format get a lot of hits, and come up in search engines, which is fine - they serve their purpose well. I doubt that they have much of an audience, but they are not geared towards gaining an audience, they are geared towards bringing in clients. I have no problem with that, personally.

There is no doubt that the best legal marketing is word of mouth - doing your best for your clients in and out of the courtroom and getting results. But, with the sheer number of practicing attorneys these days, it does not hurt to get your name out there in other ways, so long as the attorney doing the marketing is staying within the minimum standards of the ethics rules.

Stolen from Ipse Dixit:

"We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job – our sworn duty – as criminal defense lawyers, to protect our clients from those people."

Correction: Quote is attributed to Cynthia Rosenberry, DePaul professor and founding board member of the Georgia Innocence Project (see comments; I see this in the comments on Ipse Dixit's post as well).

I have followed Jon Katz's discussions on his blog about applying T'ai Chi to the practice of law and, although I don't practice T'ai Chi, I have learned from his experience and I'm grateful that he is writing about it. Jon has combined many of his posts into a complete article that he submitted to his state criminal defense lawyer's association newsletter, and published on his blog:

An essential ingredient to reaching calm is to overcome one’s fears. T’ai chi master Cheng Man Ch’ing spoke of tempering our fears in terms of imagining that we are practicing t'ai chi while balanced atop a narrow pointed cliff. To not eliminate one's fears while atop the cliff is to guarantee certain death. Eliminating fear also calls for keeping and tempering the fearlessness of a child filled with wonder and living in the moment, as detailed in the Zen story of the man and the two tigers: A man is chased in the wilderness by two tigers, only to be forced off a cliff, hanging for life from a vine. One tiger waits above and the other waits below for a human meal. Two field mice gnaw away at the vine. The man sees a wild strawberry growing from the side of a cliff, reaches for it, tastes it, and -- with his life hanging in the balance -- thinks of how delicious the strawberry tastes.

This power of being in the moment -- and finding and savoring the nearby wild strawberries during even the most trying times –- has no substitute. Ironically, those who welcome battling in the eye of the storm have the best opportunity to reach a state of calm. Nothing tests one’s ability to reach calm more than the most dangerous situations.

Mark Bennett discusses "lethal generosity," a concept taken from a discussion of social media on the Global Neighborhoods blog, and its application to criminal defense trial lawyering. The underlying issue I believe is competition among criminal defense attorneys.

Global Neighborhoods defines lethal generosity, in the context of social media, as:

that the most generous members of any social media company are the most credible and influential and as such, they can devastate their competition in the marketplace.

Competition for clients, for some attorneys, can be fierce. Lawyers spend huge amounts of money on marketing themselves in an attempt to bring in clients, including yellow pages ads, billboards, television ads, websites, and a multitude of other methods to get your name out to potential clients. For some lawyers, this drive to obtain and retain clients can spill over into their relations with fellow defense attorneys.

Although I use various methods of advertising and I feel it is necessary in this day and age, I believe that the best way to attract clients is to do the very best for the clients that you have. If you are fighting for your clients the word will get out. If you love your job and believe in your cause it will show and people will see it.

Back to the concept of lethal generosity, which I had not heard before and is a fascinating concept. Some lawyers carefully guard their motions, briefs, research, and ideas, I can only assume because they feel that it will somehow benefit them to keep their secrets. I always share motions that I have drafted with anyone who asks, and it does not hurt me in the slightest. I am always happy to return a call to an attorney who is looking for advice or a second opinion on an issue they have, in part because I hope that someone will return my call when I am looking for advice.

If I have drafted a motion that works in a given situation, and have put hours of research into the issue, there is no need for another attorney to re-invent the wheel and waste hours researching something that I have already done. They can then use that time to research another issue or motion or work on another aspect of their case.

I will draft new motions and research new issues in new cases, and always strive to learn more and to improve my advocacy. Although the concept of lethal generosity is fascinating, being generous with acquired knowledge should not, after all, be about competition. If other lawyers benefit from work that I have done then their clients are also benefiting from that work, and the overall quality of representation for citizens accused of crimes has improved. This is also the concept behind our local, state, and national criminal defense associations, and the listserves that we have set up for each. It is about raising the bar.

Surely all jurors see their role in the courtroom differently, depending on where they come from and each juror's unique perspective. This is why attorney-conducted voir dire is so important in selecting a jury, for the state and the defense. Except that we do not get attorney-conducted voir dire in South Carolina.

There is no doubt that many Horry County jurors see it as their civic duty to convict someone when they are called for jury duty, and it is an uphill battle trying to educate the jury on the presumption of innocence and the right to proof beyond a reasonable doubt. I have watched a solicitor tell the jury in closing argument (not my case and the defense attorney did not object) that they "worked for the government now," and it was their duty to convict the defendant.

The jury does not work for the government. The most precious and important rights in our Constitution are the right to a trial by jury and the right to proof beyond a reasonable doubt. The jury's role in the courtroom is to shield the citizen from the incredible power of the government, and to make sure that the government proves its case beyond a reasonable doubt, the highest standard of proof in our system of justice.

Because the prosecutor has all of the power, they can force witnesses to testify by threatening prosecution and by offering them freedom - so we have the right to proof beyond a reasonable doubt. Because the prosecutor has the weight and resources of the entire state standing behind them, with practically unlimited resources and manpower to make a case against a defendant, we have the right to a trial by jury, so that 12 people are there to stand between the power of the government and the defendant.

Because there are times when prosecutors put lying witnesses on the stand to testify to a jury, offering them years of freedom in exchange for their perjury, and because judges are unwilling or unable to stop such testimony, there are times when the only thing standing between a citizen and a wrongful conviction is a jury of 12 people, and their ability to hold the government to its burden of proof.

It may be that when the government does meet its high burden of proof it is the jury's duty to convict a defendant. But the jury does not work for the government, and their role is to make sure that the government meets that burden of proof before it can take away a person's livelihood, their family, and their freedom.

At a NACDL conference today in Houston, TX, I was privileged to hear a federal judge say: "Judges are not the government . . . I don't know if there is a greater role that an Article III judge can play than to stand between the citizen and the government."

I think that we take it for granted that many judges not only see themselves as agents of the government, but also see their role as "law enforcement." Many federal judges are appointed from the U.S. Attorney's office, many state judges are elected from the solicitor's office, and many non-lawyer magistrates are appointed from either law enforcement or the probation office. It is only natural that they will have a prosecution or law-enforcement bent to their ideology, which may or may not change over time.

But the judge is supposed to be a neutral and unbiased arbiter, and (ideally) is looked up to by the public and the people who appear before them as the one person who has the power to ensure that what happens in the courtroom comes as near as possible to achieving Justice, and that the rights of the litigants, including defendants, are not trampled on.

I always assume that even the most prosecution biased judges do not see themselves as biased, and that they are attempting to do the right thing, based on their own concept of Justice. But, wouldn't the landscape change and the likelihood of Justice being achieved increase exponentially if all judges could say the same as this federal judge today. If all judges could see themselves as truly neutral in the struggle between the government and the rights of citizens rather than as an arm of law enforcement?

It is the job of the defense attorney to argue and persuade the jury to acquit our client, and to argue and persuade the court to preserve and protect the rights that we are given under the Constitution. But our arguments and persuasion are for nothing unless there are judges, in the trial courts or in the appellate courts, who are willing to hear them.

Sometimes, there is the rare moment when we feel that justice is done in the courtroom, we stand in awe of humanity and we understand why we do this job.

Oftentimes, what I see in the courtroom is people trying to hurt other people, intentionally or unintentionally, prosecutors, judges, cops, victims, and attorneys, and the damage done in the courtroom is at least as equal to if not greater than the damage done on the streets.