Liberty’s last defender

Sunday, March 24, 2013

I write today about the role of the criminal defense attorney in our legal system.

They are liberty’s last defender.

Given a list of possible answers, most people probably would not select that answer as the correct one.

I live in a county in western Kentucky where multi-generational institutional corruption in the legal system has effectively denied legal and equitable remedies to people harmed by corporate wrongdoing and defendants in criminal cases know that they better plead guilty, even if they are innocent, to avoid conviction and long sentences of imprisonment. This is a place where people know that it’s a waste of time and money to sue the rich and a person convicted of a nonviolent crime gets sentenced to the maximum term of imprisonment, if they go to trial, and probation, if they plead guilty.

No one believes that a person who goes to trial will be found not guilty. Outcomes are rigged and people know it.

An acquaintance I met while teaching at the law school, practices law in southern Illinois. She told me that the law firm where she works refuses to take any cases across the Ohio River in Kentucky because the Kentucky courts follow their own unwritten laws rather than the Constitution and the laws of the Commonwealth of Kentucky.

Criminal defense attorneys here do little more than collect big retainers while promising a vigorous and diligent defense only to fall on their knees facilitating plea bargaining and guilty pleas. Saddled with large unmanageable caseloads, public defenders survive by persuading their clients to plead guilty. Exculpatory evidence is routinely withheld from the defense and police officers lie with impunity. In a system where even the innocent are presumed guilty of some criminal misconduct that they got away with, everyone understands that when you get busted, you’re busted. There is no recourse to pleading guilty.

Rock the boat and you are asking for trouble. In this environment, whistleblowers are an endangered species and the only people who have liberty are people with money, lots of money.

An independent, tough and in-your-face criminal defense bar would never have allowed this systemic corruption to take root and overwhelm the legal system.

Diligent and hard working criminal defense attorneys have the knowledge and the capacity to expose corruption and force the police, prosecutors and judges to play by the rules.

I was a criminal defense attorney for 30 years and was proud to call myself and my brothers and sisters in the National Association of Criminal Defense Lawyers, Liberty’s Last Defender.

When you think of criminal defense lawyers, never forget Pastor Martin Niemöller (1892–1984) famous words:

First they came for the communists,
and I didn’t speak out because I wasn’t a communist.

Then they came for the socialists,
and I didn’t speak out because I wasn’t a socialist.

Then they came for the trade unionists,
and I didn’t speak out because I wasn’t a trade unionist.

Then they came for the Jews,
and I didn’t speak out because I wasn’t a Jew.

Then they came for the Catholics,
and I didn’t speak out because I wasn’t a Catholic.

Then they came for me,
and there was no one left to speak for me.

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43 Responses to Liberty’s last defender

  1. Ben Franklin says:

    Add California. What you described is what I experienced.

  2. Malisha says:

    Ladies and Gentlemen, I present an outstanding quotation from an attorney:

    “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 – to protect our clients from these people.” – Cythia Rosenberry, Federal Public Defender, Washington, D.C.”

    • I have a very high opinion of federal public defenders. They have manageable caseloads and the time to manage their cases. They also handle federal habeas petitions in state death penalty cases.

      The Federal Defender in Seattle handled the Stenson matter and did a great job.

    • onlyiamunitron says:

      Very good find on that quote.

      unitron

  3. Xena says:

    The defendant in this video reminds me of GZ supporters’ arguments.

    • Brilliant!

      I’ve had conversations like that with clients.

      Must have been written by a criminal defense lawyer.

      • Xena says:

        Several months ago on Judge Judy, a defendant continued to say, “She didn’t see me do it.” Judge Judy explained “by preponderance of the evidence” and ruled that the defendant did damage the plaintiff’s car. In the interview afterwards, the defendant said again, “But she didn’t see me do it.” LOL!!

  4. Xena says:

    Get ready to laugh.

    • Oh my God I effing love these things. My son turned me onto them, and I am going to rip these latest ones and put them on my site. Kyle (my son) and I are planning to ghost, co-write one on a different subject. Here is my all time favorite:

      “You are a bitch. You are a cruel, depraved, heartless bitch.”

  5. Erica says:

    THIS HAPPENNED TO ME in DALLAS TEXAS. I was charged with a class a misdermeanor and dont currently have a job but the court is refusing me a court appointed attorney and they just keep resetting the trial until i get a lawyer but im innocent and its cheaper to plead guilty than to go to trial because lawyers charge more. ive been trying to file civil rights complaints but its kinda hard.. why cant the county be sues for civil rights violations?

    • Xena says:

      @Erica. In Illinois, public defenders are not provided when defendants are charged with a misdemeanor that carries a sentence of 6 months or less.

      Search the internet for Texas rules of criminal procedure. Familiarize yourself with motion practice for discovery. Go to the courthouse and ask to see case files for the same charges where the defendant was represented by an attorney. Take time and go through them. Did the defendant plea, or did the case move to trial and if so, was the defendant acquitted.

      It’s work, but if you are innocent, it’s necessary work that you will not regret.

  6. gbrbsb says:

    Professor, for your interest, the official version of the quote, “First they came…” accepted by Niemöller’s family and Foundation refers only to communists, socialists, trade unionists and jews in that order, i.e. the order of persecution in Nazi Germany, but not Catholics which was a later addition and maybe not even by Niemöller as these were not persecuted per se only individual leaders of any Christian faith, (Protestant, Catholic, etc.), that spoke out against the regime. It was a warning of how Germans, including himself, had allowed such groups to be persecuted, and Niemóller suffered from guilt in respect of his own early anti-Semitism and for having welcomed Hitler’s rise to power in the 30s.

    On the other hand, although the quote appears most likely to be by Niemöller (1946), there has been a controversy as to ownership with some attributing it to Bertolt Brecht (as I first learned) and who wrote a poem (Liturgy of Breath – Liturgie Vom Hauch) on a parallel theme in the late 20s and which would have presumably inspired him. It’s about an old woman dying of hunger because the military ate all her food and they bury her to keep her from telling others. A friend protests but a policeman beats him to death. Three men try to speak up and they are shot. A large group of men try the same and the military machine guns them down. It ends with a red bear from foreign lands (possibly soviets?) eating all the birds which after every verse have fallen silent except after the bear eats them they are no longer silent and there is unrest and “breath/whisper” in the treetops!

  7. texad says:

    Professor,
    I was going to take a pass on commenting today, but you drew me in by ending your post with my favorite quote by Pastor Niemoller. Everything you wrote is true, and sadly, it is not just true in Kentucky. Like many things in America, the criminal justice system is broken. For instance, I was doing some research on a Texas case which occurred in 2006. Four police officers went out on a call that stated that 3 white females were suspected of prostitution in a neighborhood. When the police officers arrived at the WRONG address, they saw a 12 year old black girl in a yard and in a stupid series of events they attempted to arrest HER for prostitution and injured her seriously enough that she needed medical care at the local hospital. As it turns out she was in her own yard at her parent’s house and was outside only because she was trying to reset the breaker box outside. She ran from the officers because she didn’t know who they were. It is reported they alsp threatened to shoot her puppy. When they realized their mistake, they charged her-days later- with assaulting a public servant. The sad part is she ended up having to endure two trials. One resulted in a mistrial and the 2nd in a hung jury, which thankfully ended it all as far as the criminal case against the pre-teen. Any sane person would wonder why she was tried at all. When her parents sued the police officers in Federal Court, it got even more ridiculous. In 2010 the police officers filed a motion for summary judgment and THEY won. Note: Because she was a minor when this happened, I won’t include her name, but it happened in Galveston, Texas and was initially all over the news.

    It is obvious the criminal justice system is broken. My question: If that is true- what do people who believe in Justice and not JUST US do? What is Plan B-because a Plan B is obviously necessary.

    • Trained Observer says:

      texad — Appalling, both on the cop action and court response. And where was SYG for this 12-year-old in her own yard minding her own business? Or the PETA people for the threat against the pup? Hope the four 10-gallon galoots who apparently couldn’t find a correct address, much less some legitimate suspects, got laughed off the force.

      • texad says:

        @Trained Observer Sadly, none of them (and it seems that only 3 were named in Federal case) were laughed off the force. They never offered a real apology to the pre teen or her father, who was also arrested when he came to her aid when he heard her screaming “Daddy, Daddy, Daddy!” As a matter of fact, the Judge in Federal Court ruled the police used NO excessive force, NO common law assault and battery, and NO unlawful restraint. Nothing to see here folks-move along.

        http://docs.justia.com/cases/federal/district-courts/texas/txsdce/3:2008cv00193/603449/53/0.pdf?1303150253

        Hope I inserted the above correctly.

      • Trained Observer says:

        texad — Interesting that the trio of suspected hookers were caucasian — that makes it so very understandable that cops immediately zeroed in on the 12-year-old black girl. Galveston and Sanford ought to sign up to be sister cities.

  8. Xena says:

    @Professor

    Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work.

    Forgive me for not saying “THANK YOU.”

  9. colin black says:

    FauxMcoy .

    Acountants brought down al capone .
    Not Elliot Ness of Gang Busters Myth.
    But an accountant sitting in an office going over ledgers recepiets income out goings .
    Anuall income anual proffits.
    Taxes liable Taxes paid.

    Income Tax Evasion is what put Al Capone behind bars for ten years.
    Where the goverment soon discovered he was sufffering from syphillis.
    Rather than treat the disease wich at that time was dormant an cureable.
    Antibiotics were available now for such diseases.they said nothing an chose to let it spread .
    Sent him insane even before his sentance was even finnished.
    Wich they sent him to serve at Alcatraz were people were doing ten year stints in isolation or longer.
    Majority were lifers with nothing to lose.
    Anan ill mentaly unstable A Capone became there punch bag strok pet.

    They called him the Wop with the Mop.
    From king of kings top of the heap his fall was complete
    A plaything for sadistic gaurds an evil low life thugs.

    He was once nearly murdered by a fellow inmate on the rock stabbed in the barbers with a pair of sissors.
    The Goverment seemed determined that either illness or a fellow prisoner was going to put this man to death.

    After eight years on Alcatrz he was transfered to the equivelent of an assylum for mental prisoners to finish the last two years of his sentance.
    But the man whom entered prison was gone an just a husk was released.

    The Mob sent him down to Miami were he owened a small mansion .
    An he lived more or less a hermit like life untill his death due to stroke heart attack few years later eary fiftes or late forties but not old just riddled with disease an illness.

    Just shows you dont want to piss of the U S Goverment.

    • fauxmccoy says:

      yes colin – that is precisely what my father did. as i said, he was a special agent, for the IRS. he carried a gun and a badge and was a key player in bobby kenndy’s task force to eliminate organized crime. my father was stationed in las vegas, auditing the mob throughout the kennedy administration. he would walk into a casino, flash his badge and demand to see the books. he was about the best they had at identifying a double set of books and received honors for doing so.

      it was a very difficult job (as you would imagine) which he chose to not discuss with his children. i do know from conversations with my mother that after the mob’s attempts to recruit my father, they began a serious campaign of harassment, including break ins and death threats. it was only when my mother was 8 months pregnant with me in 1964 that he finally requested a transfer to a desk job in their los angeles office.

      other sage advice i got from his was to ‘never fuck with the IRS’ and if you have a dirty job you need done right, the mob is your best bet.

      we used to laugh at the idiot drug runners in out neck of the woods (northern california) who would be pulled over for exceeding the speed limit with busted tail lights and expired tags on their license plates. my dad assured me that the mob made damn sure to never do those things and could easily just drive on by, wave to the cop on the beat with untold contraband in an upscale car, with nothing that would warrant any undue attention and always going the speed limit. they were the pros.

  10. colin black says:

    If your sitting in some hilly billy town going on trial for say an affray assault /riot glasses smashed injuries many incured by you.

    Because you are the agreived party an where initialy assaulted by locals.
    Said locals chatting up and or eyeing up your wifes /sisters .girl freinds.
    And eventualy they attack an your forced to defend yours selfs.

    L E Arrive an automaticaly they side with the locals.As Burt Reynolds said in Deliverence all thease folks are realated.
    Like wise the Jurours .

    Your chances in a court like that are practically zero especialy if the Judge doesnt know the definition of youts.

    • fauxmccoy says:

      your luck would be just as bad in utah where the judge would think you said ‘utes’ and assume that you and the local native american tribe had done your worst.

  11. fauxmccoy says:

    i was fortunate to have been raised by a CPA who was formerly a special agent for the feds. although accountants are not perceived as remotely glamorous (there are no swank tv dramas produced in their honor) the connections they make in the legal profession are invaluable. it is all too easy to make fun of lawyers, we’ve all heard the jokes and they could have been written for o’mara personally.

    when his stint with the army was over as a korean war vet, he was recruited heavily by the LAPD and although the terms were enticing, he returned to utah and went to school on the GI bill instead. he was in a program to become a tax attorney where he would get a degree in both law and accounting. he did decide to not finish the last year, drop the law portion and passed his CPA boards instead.

    i will always carry with me some sage advice from my old man – when you’ve got tax problem, you get the best damn CPA you can afford and if you’ve got a legal problem, you get the best damn lawyer you can afford. his feelings on the issue were the same as yours, fred. that a cpa who made their clients pay one more penny than was necessary was not doing their job and that a good defense lawyer (not that i ever needed one) is the last thing between a person and their life and/or livelihood.

    he could always give me the best referrals for either and i miss him dearly. i am having difficulty with my brother, the executor of my dad’s estate, my dad’s lawyer is acting for the executor. i know my dad well enough that he’d expect me to fight for what i felt was right, but i’d give anything to either not be in this position or to have him give me a referral for an attorney.

  12. Two sides to a story says:

    Unfortunately, what you describe in Kentucky happens in many places around the country, particularly in various rural, or suburban counties. You have more equitable justice in urban areas, and then county courts operating as you describe in rural or semi-urban areas even though they ostensibly operate under the same state laws. This makes me sick to my stomach just to contemplate.

    Arizona, where I lived for several decades, comes to mind! It is probably common in the West as a whole since all Western states have many counties with rural / semi- urban populations and courts that seem to operate with their own set of political priorities.

  13. ay2z says:

    Thank you for doing what you are doing, and thank you especially for this timely article.

  14. racerrodig says:

    I would never confuse you stance or words as support for O’ Mara, on a bad day. I read it like I feel……

    “Then they came for me,
    and there was no one left to speak for me.”

    Then Trayvon was murdered and we needed to speak up for him and his family…..

  15. onlyiamunitron says:

    follow

    unitron

  16. Do not confuse my support for the criminal defense profession with support for the tactics employed by Mark O’Mara. As I have stated many times, I do not support playing the race card, demonizing the victim, and intimidating witnesses.

    His tactics are reprehensible.

    • Tzar says:

      would never happen

    • boyd says:

      Understandable. We need lawyers. I had no idea Kentucky was like that. And I was considering retirement there.

      • I was specifically referring to western Kentucky. I cannot say that the entire state is like this.

        Eastern Kentucky also has a bad reputation.

        Rumor has it that the Louisville, Lexington and Frankfort areas are different.

        Definitely check out the area you are interested in before committing to a move.

      • kllypyn says:

        I live in Louisville,we don’t seem to have those problems here.

    • Lonnie Starr says:

      My guess is that he probably would have handled this case differently if he knew how. But his training, in family courts, being what it is, coupled with how disastrous this case is, and how toxic his client, all the while having been led to believe that for the first time in his life he’d finally grabbed the “brass ring”, he got whipsawed and was unable to think clearly and so came to follow the path of least resistance.

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