The Joy of Demurring

"Your Honor, my client would like to withdraw his plea of not guilty. He appears to have been charged with a crime that does not exist."*

I could swear I heard the ghost of Franz Kafka chuckling in Department 8 this morning as I spoke.


* Mr. O. had been charged with a felony violation of California Penal Code section 422.7(b); "a crime that does not exist," according to People v. Wallace (2003) 109 Cal.App.4th 1699.

Zen and the Art of Advocacy

A short while ago, in response to a post on Little Lulu's blog about "true believers," I commented as follows:

In my opinion, accepting the futility of the system and our roles in it (whichever side you are on) is the first step toward being a great lawyer. Only then can you see prosecuting or defending as "just work" and attain that state of "zen" objectivity that is essential to success, that is, success in the sense of being happy at work and success in the sense of providing the most effective representation to your client.

That comment of mine was then reprinted on the esteemed Arbitrary and Capricious blog, where it appeared from one of the responses that some people might be a little befuddled by what I said.

So, just to clear things up, here's a quote from master swordsman Takano Shigeyoshi:

"As soon as one cherishes the thought of winning the contest or displaying one's skill in technique, swordsmanship is doomed."

Hired Guns

I haven't posted anything in a little while, simply because nothing very "blogworthy" has been happening here. However, I have been visiting (and commenting on) a few other blogs, a couple of which touched on an issue that arose at work recently. Instead of clogging other people's blogs (blog-clogging?), I figured I should probably throw a few pixels in here on that issue . . .

One of my colleagues, Mr. L., a very experienced and skillful criminal defense attorney, applied for a job at the District Attorney's office---the Other Side!

In court the other day, Mr. L.'s cover was blown by his adversary of the day objecting on the record to Mr. L.'s involvement in an ongoing case, apparently fearing some sort of ineffective assistance appellate fallout. To make things even worse, a veteran "true believer" from the Public Defender's office could be heard by all and sundry at a local bar that night, loudly voicing her disapproval of Mr. L.'s continued representation of criminal defendants.

My opinion is that a good attorney---and Mr. L. is more than just a "good" attorney---can represent any client and advocate any position, unaffected by his own personal beliefs and opinions. Mr. L. has no duty to withdraw from representing clients, nor does he have a duty to disclose his plans to them, any more so than if he had plans to quit the law and become a farmer.

The only objection I have to working for the D.A.'s office is the apparent requirement that as well as being a good attorney, you have to display a certain "attitude." That said, if Mr. L. goes over to the "dark side," he will be in the company of not just good attorneys, but some good people.

Anyway, I wish Mr. L. all the best. I've learned a lot from him, and I hope to learn more, whichever end of the table he sits at.

The Client With No Name

Yesterday I appeared on behalf of Baby Doe. Baby Doe has no name because she was left as a newborn at a local hospital. Under the "Safe Surrender" law, the mother escaped prosecution by leaving the baby at a designated site, and the child entered the dependency system as "Baby Doe." At yesterday's hearing, the parental rights of the unknown parents were terminated, and the adoption process officially began. Within a couple of months, Baby Doe will not only have two loving parents, but she will also (officially) have a name.

I try not to be emotionally affected by dependency proceedings, but two things tested my lawyerly objectivity during the hearing. One was when, instead of having the bailiff summon the parties into the courtroom in the customary manner by hollering the child's name in the lobby, the judge asked the social worker to go find the foster parents. The other moment was when the judge asked me to pass the Kleenex to the prospective adoptive parents seated behind me, thus forcing me to turn around and witness their tears of joy.

After I left the courtroom, I couldn't help but think about a tragically contrasting case which Comrade Nebur and I were tangentially involved in last fall. In that case, the mother left newborn "Baby TM" under a motel room sink to slowly die in the dark.

Critics of the Safe Surrender program say that it is largely ineffective and encourages parental irresponsibility. But should the Safe Surrender program be abandoned at the risk of replacing Baby Does with Baby TMs?

There is no way to know if the mother of Baby TM knew about the Safe Surrender law, or if she would have acted any differently had she known. Nor is there any way to know what the mother of Baby Doe would have done without the protection of the law. Nevertheless, my very subjective, and (yes, I admit it) emotional experience with these two cases tells me that the Safe Surrender law is a good law, and that we should be doing more to make people aware of it.*

* This county is one of a very few in California which have nothing posted on the internet to assist pregnant mothers contemplating abandoning a newborn.

What Would YOU Do?

In California, an attorney may (but is not required to) reveal confidential information if he or she reasonably believes disclosure would prevent death or substantial bodily harm.

Over lunch the other day, my colleagues and I pondered the following hypothetical:

A client charged with kidnapping reveals he has left his victim---a small child---tied up at the bottom of a well. If this information is kept confidential, the child will perish, and your client will likely escape conviction due to the lack eyewitness identification. If the information is divulged, the child's life will be saved, and the client will likely be convicted, based on the child's identification of the client.

What would you do?

(By the way, five out of six here said save the child.)