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Idealism, Realism & the Practice of Law

When I started clerking as a law student and first began to see “what really happens” in the practice of law — as opposed to the theoretical side put forth in just about any law book I read in school — and I complained about it, I was labeled “naive” and “idealistic.” It irritated the hell out of me; it sounded and felt like a form of brush-off, as if to say, “if you were a real lawyer, you’d understand.”

Well, I’ve been a “real lawyer” for awhile now. Heck, I’ve even passed the point where I’m no longer called a “young lawyer” and can pay lower rates to join various associations.

But I still don’t understand.

Instead, I notice that I’m becoming more angry, more bitter and more inclined to come out swinging. Does that mean I’m becoming more naive? More idealistic?

I don’t think so. I think I’m becoming more realistic.

When I talk about the disconnect between what is right and what is happening, I’m not being “idealistic.”

Scott Greenfield tells about John P. Galligan defending Nidal Hasan. The attorney has received belated (do we really ever get any other kind?) discovery, information which has been in the hands of prosecutors for several months, and when he receives it, it comes with a gag order. Another attorney — I followed the link to this story from the blog Galligan started — is threatened with jail for violating a rule forbidding the release of evidence. This in spite of the fact that he did not release any evidence, but only mentioned that there was evidence which people were not allowed to see.

This problem is more obvious in cases like those just mentioned involving “terrorism.” (Although it’s not clear to me yet that Hasan’s acts were terrorism; they could just as easily be some guy who happens to be Muslim who became unhinged after receiving orders to Iraq.) But such things happen even more frequently in “regular” criminal prosecutions.

In 2008, an attorney’s office was searched by police looking for evidence against his client. In 2009, the United States Supreme Court held that prisoners have no constitutional right to DNA evidence — even though “[p]rosecutors there [in Alaska] have conceded that such testing could categorically establish the guilt or innocence of [the prisoner]” — that might prove their innocence. In 2010, Kathleen Cannon, a defense attorney in Vista, California, argued about the “continuing pattern of failure” — the systemic problem of a failure — to turn over evidence that might be useful to the defense.

This is real and really wrong!

As recently as yesterday I was forced to invite a judge to find me in contempt after he said he was not going to allow me to make certain necessary statements on the record. (I was objecting to a particular procedure I felt was illegal.) That same day, I received a phone call from another attorney asking if I would represent his secretary after law enforcement officers seeking evidence against one of his clients came to his office, allegedly on the suggestion of a judge, to try to get the evidence from his files — sounds like the 2008 case mentioned above, doesn’t it?

This is real and really wrong!

Frederick Douglass once said:

Find out just what people will quietly submit to, and you have found out the exact measure of injustice and wrong which will be imposed on them, and these will continue till they are resisted with either words or blows. The limits of tyrants are prescribed by the endurance of those whom they oppress.

We, the People — and by that I don’t mean the fabled group prosecutors falsely claim to represent — are about at the end of just what we will quietly submit to. And the last line, the last possibility to turn us back to our ideals, are the realistic defense attorneys who do not shrink from getting the courts to see this.

For if we fail, so, too, will our once-great nation.

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