Of Counsel

Legal Notes on Georgia and The South


Posted by Maggie on March 11, 2008

One of the things about being a defense attorney is that it changes completely the way you look at crime. In your job, you see it from the inside. You get a real understanding of how the law punishes people and the people being punished. I was poking around a blog the other day and saw a post that troubled me. A woman was talking about her concern after a burglary at her mother’s home where the woman found the intruder inside the house when she came by. I can imagine how troubling this would be for anyone, how much it would impact your feelings of safety and security. So I’m willing to forgive her for what she posted a few months later. She said she was frustrated because the intruder, a woman, hadn’t been punished appropriately for her crimes, and that she was still out in the world with her two children. She specifically said how she thought the woman needed consequences for her actions.

Reading that made me think a lot of things. It’s likely this woman knows nothing about what’s going on with the case, that it may still be ongoing and the burglar is simply released on bond. It’s certain that this woman knows nothing about the burglar and her life, not her past or her present. And it’s also pretty definite that the lives of these two women, burglar and victim, could not be more different even though they both have young children. The woman writing the post has never been in a point in her life where she could understand why one person would break into someone else’s house.

This lack of understanding has a lot to do with how I see prosecutors and judges and legislators. Sitting next to a defendant, it’s difficult to see the people who have power over your client. There’s a prosecutor making plea bargains, there’s a judge overseeing pleas and trials, there’s a jury listening to evidence and arguments, and there are legislators and lawmakers who put the laws together that dictate your client’s potential fate. Along that chain of people, it’s unlikely any of them have a criminal record. If they did, they would probably be immediately disqualified from their position. (Even the jurors. You think a prosecutor is going to let a convict on a jury?) And yet this means that they are all in a position where they are not able to fully understand most defendants, whether guilty or innocent.

All this is running around in my head from all the coverage over the Spitzer scandal. Simple Justice has talked about it, so has Gideon. It’s not a Southern scandal, so it’s technically outside my realm, but scandal is certainly something we’re familiar with down here. It troubles me because I have conflicted feelings about it. Part of me loves to see someone who’s previously been vehemently attacking people in violation of the law go down themselves for the very same violations. It gives me that sense of righteous indignation that you need every once in a while. But I also feel a sense of pity and connection to it that I wouldn’t have without my defense experience. Despite their office, politicians are people just like my clients are, even though they come from vastly different backgrounds. I’m willing to understand their circumstances, just like I do with my clients.

Thinking all that made me wonder, why do we demand resignation in the face of scandal? I think if we allowed people who had made their own mistakes and paid for them to serve as prosecutors, judges, jurors, and legislators, that we might have a more enlightened criminal justice system. Some of you are probably thinking that plenty of those people have made serious mistakes, but somehow managed to avoid being outed. And you’re right. But I doubt that many of them allow their experiences to temper their judgment.

I’m not making excuses for anyone, especially not Spitzer. Being elected by the public should mean serving the public openly and honestly. And we as a society have decided that it means dealing with your mistakes publicly. But do you think he might act differently prosecuting a case now than he would have before? Do you think he might be more deliberate and considerate? Is that such a bad thing?

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