NACDL - Offering Up Our Brothers and Sisters with Criticism (From the President)

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Who needs prosecutors and a cadre of law enforcement critics when all you have to do is flip on any mainstream media outlet and watch our colleagues chastise each other with armchair criticism? We are correctly indignant when others bash defense lawyers for defending unpopular clients, but we should not assume that we have some special license to criticize our brothers and sisters of the defense bar.

This pious punditry usually takes the form of a disapproving observation concerning legal strategy that is likely to result in a disaster for the client. Comments sometimes focus on pretrial pitfalls, with defense lawyers pointing out inadequacies in defense tactics or fronting potential strategies that might be employed by the defense without thought to whether the government has considered the theory. I have even heard scathing remarks regarding the lack of trial skills exhibited by the defense lawyers handling the case.

Recently the Penn State case has given our colleagues more fodder for celebrity face time. Before the Penn State investigation, the focus was on Dr. Conrad Murray and Casey Anthony. As a culture we are consumed with high-profile cases, whether it is related to the status of the defendants or the underlying factual scenario. I am not blaming the lawyer who comments publicly in local and national media outlets. It is an excellent opportunity to educate the masses with insightful and intelligent sound bites in order to advance our clients, our noble profession, and the criminal justice system.

I respect and admire many of those lawyers. I have watched some of our own NACDL colleagues who are among the best, and when I see them on screen or read their comments I smile and breathe a sigh of relief. Finally, I can listen to someone who knows what he or she is talking about. My close friend and respected NACDL colleague Jeralyn Merritt taught me early on that if you decide to comment on a high-profile case, you should immerse yourself in the case as if it is your own. Read as much as you can about the case, including pleadings, affidavits, and warrants. This kind of commitment requires not only a great deal of time, but pushes you to become vested in the case in a fashion that parallels your devotion to your own cases. This plan of action makes you more cautious in your approach and remarks. Another good rule of thumb is to reach out to the defense team. If you have garnered the respect and credibility of a colleague, you may be a more effective public educator than the lawyers immersed in the case. Lawyers in the grips of a media-frenzied case, particularly with a client that everyone loves to hate, will always appreciate a friend.

Last month at the NACDL seminar in Las Vegas, there was a spirited discussion amongst my fellow board members related to recent lawyer bashing. NACDL board member Drew Findling was incensed at the amount of second-guessing and criticism lodged at a particular defense attorney regarding choices he had made during his representation of a client. The comments offered up by some defenders had helped the prosecution make a stronger case. These “expert” lawyers made comments that seemed to undermine counsel of record’s attorney-client relationship. Drew and I reached the same conclusion, and it is not a conclusion that is novel or insightful. Let’s support the defense — no matter how bad the facts, the lawyer, or the client. This should be instinctual. It is what we do daily — defend.

Internal defense bar criticism is not limited to media outlets. It crops up at NACDL lectures, social events, and on listserves. Why do we feel the need to bash our own? Are we jealous, arrogant, or just looking for 10 minutes of fame? We have all done it, yours truly included. I have rolled my eyes and remarked out loud, “Can you believe she would say or do that in this case?” We are ego-driven beings. It is why many of us are attracted to litigation. Yes, I said it. But, more importantly, despite craving attention, we are a group of compassionate, thoughtful, and loving human beings. I have no doubt that my colleagues do not wish to say anything that would move any client closer to a guilty verdict.

Calling the comment a “disaster,” Steven A. Kozicki predicted that jurors will be hearing it at some point down the road. “I don’t see any way they could keep that out of evidence. He’s not in custody; there’s no Miranda violation,” he told the newspaper. He’s far from the only criminal attorney wondering what benefit the 67-year-old Sandusky gained by commenting publicly about the charges against him.¹

Let’s take an oath to stand together, side by side, united in our goal of advancing a criminal justice system that provides effective representation for every client. I can imagine my mother, Juanita Wayne, quoting dialogue from Bambi on this one: “If you don’t have anything nice to say, don’t say anything.”

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