Liberty’s last defender

March 24, 2013

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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