Criminal Defense and the Societal-Good Heresy [updated]

 Posted on April 05, 2017 in Uncategorized

[Updated to include David Hardaway's name, at his request.]

A defense lawyer appeals his client's second DWI conviction, arguing that the client should be punished for a first DWI because the State did not plead or prove the first conviction (which acted to enhance the class-B misdemeanor first DWI to a class-A second) in the culpability phase of the jury trial.

He wins: The Court of Appeals holds that the first conviction is an element of the class A. His client gets some advantage. Future DWI-second defendants have to face juries that know that they have been convicted before of DWI (because if it's an element and the State has to plead and prove it, the jury knows about it before finding the accused guilty or not guilty).

And the DWI-defense bar ((Bless their hearts.)) loses its collective mind. How dare the lawyer appeal this case? Every defendant with a second DWI in Texas just got screwed! Lives irrevocably damaged! A disaster! Blown away!

Literally shaking.

I respond to one young lawyer (David C. Hardaway of San Marcos) who asked if it is "ethical" (his doubt quotes) to throw future clients under the bus for the sake of a trivial win for the current client:

First, here is a difference between a Class B conviction and a Class A conviction: There may be others that I haven't thought of, but I can see why that would matter to a defendant.Second: Yes, it is ethical to throw the whole world under the bus for the sake of the client's interest. There is not even a question.What are "countless future clients" but the society in which we live? And so what is the argument for withdrawing? "I have a job to do, but I find that society is better served by my declining to do it for this client."Do you recognize that argument? It is also the argument for "not representing people who you think are guilty." Are you that guy too? Of course not. ((Apparently he is, as it turns out, that guy.))What's the argument for not withdrawing? "I have a job to do, and I shall do it for this client." You want to criticize a brother criminal-defense lawyer for doing his job, and doing it well? Take a deep breath.Our attitude toward the client in opposition to society is at the core of what we do: We are the ones who tell society it is wrong.Speaking of "society's interest," most non-lawyers would agree that the fact of a prior conviction for the same offense was relevant, so that it is in society's interest for a jury, in deciding culpability on a DWI, to hear about a prior DWI conviction.If we start using "the interest of society" rather than "the best interest of this client" as our guiding star, due process goes down the drain fast. For, as Tyler Flood says: "Listen, most of the people we get off are intoxicated. But that's the justice system," he says. "I've always thought people would be very concerned if they knew what we were doing."

David Hardaway replies:

Mark, your points are valid and well-taken and they don't seem at all harsh. After taking a breath, I realize that we all do our jobs on a very slippery slope. I personally try to navigate that slope a little bit more than most, as I do everything in my power to avoid taking on clients I can't empathize with (I represent guilty people, but not if they've done something I find indefensible). Consequently, I wind up sending a lot of business elsewhere. I also realize that the system as a whole would come to a grinding halt if everyone operated in the same way as I do, and so I try not to judge harshly those who make different choices in that regard. Your overall point of view is not one I personally agree with (although I'm sure that most on this forum differ from me), but I realize that those who share your viewpoint are indispensable to a properly functioning justice system. We could go back and forth for eternity on those overarching philosophical questions, but in the interest of brevity please allow me to focus on this particular instance and maybe clarify what I was getting at earlier.What is particularly upsetting in this particular case is how trivial (and possibly non-existent) the benefits received by Mr. Olivas are in comparison to the damage being caused to so many others (some of whom might in fact be real, living, breathing current clients of the appellate attorney). I understand there are some theoretical benefits to a B versus an A, but from a practical standpoint they are likely to be virtually nil, as best evidenced by the 180 days he originally received on the same facts he will be armed with the second time through. I personally find it appalling that it was appealed on that particular point, and the attorney who did this was being incredibly short-sighted at best and selfish to the point of being downright anti-social at worst, IMO. Many may line up to shake his and similarly acting attorneys' hands for his zealous advocacy (and his successful? outcome) but I will never be one of them. That sort of me-first-I-don't-owe-society-anything worldview is a pervasive societal sickness that is going to eventually lead to our collective, well-deserved demise. Perhaps that is a bit hyperbolic, but as a trial lawyer hyperbole is the currency I deal in. Bottom line is that I understand and respect your point of view, even though I mostly disagree when it comes to how I choose to practice. But I disagree with this particular scenario enough as to feel far more justified in my outrage than I normally would.

I have the privilege every year of speaking to the Thurgood Marshall School of Law's criminal-defense clinic. The theme of my talk is the ethical misconceptions that old-school lawyers hold, and how to avoid them. For example, the idea that a lawyer may not talk to a potential client who already has counsel, or the idea that the client may be put on the record to prove up the lawyer's communications about a plea offer.

"In representing a client you should consider the good of society" is not one of those old-school misconceptions. I doubt that David's mentors, if mentors there be, instructed him to choose clients, cases, or defenses based on the greater good.

No, that strikes me as a very modern heresy.

Cicero wrote, "It might be pardonable to refuse to defend some men, but to defend them negligently is nothing short of criminal." It might be pardonable, but it is by no means laudable. We are defense lawyers. We defend. Wir können nicht anders. Among other things, the categorical imperative demands that we do so. What we owe society is to do our jobs.

That David Hardaway thinks he "tries to navigate the slippery slope more than others" and sees himself as in a position to "judge harshly" those with less delicate sensibilities about doing the job reveals an ethical Dunning-Kruger Effect: Low-ethical-ability David mistakenly assesses his own ethics as superior.

Why is it not ethically superior to represent only people whom you judge deserving? This is just a form of The Question, to which there are lots of good answers, ((Not including "I represent guilty people, but not if they've done something I find indefensible.")) but if David, after seven years in practice, has not learned and internalized the axioms on which two thousand years of criminal-defense history are founded, I'm not going to change his mind.

The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.

–John Adams

So no, Mr. Hardaway, we couldn't "go back and forth for eternity on those overarching philosophical questions." Those questions have long been answered, by people smarter than you and wiser than me, to the satisfaction of the criminal-defense bar if not the general public. Nothing you have to say changes the correct answer that a hundred generations of your ethical betters have reached.

David Hardaway, I'm putting this up as a monument to your foolish unethical hubris and a warning to your potential clients. Your new ideas are bad, you are wrong, and you should be ashamed. You call yourself a criminal-defense lawyer; you're a poser. ((And if you want to keep digging, there's a shovel in the comments for you.))

Do your damn job, or get the hell out of the way and leave it to someone who will.

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