The Importance of the Work Defenders Do
By: Larry D Thompson
Congratulations to Professor Podgor, Mr. Trombley, NACDL, and all of you who are participating in this wonderful and groundbreaking program. This ir really great, and it is in the best tradition of our great profession.
This program also reminds me of something that Judge Stanley Sporkin said several years ago.
In a trial involving the S&L crisis of the late 1980s and early 1990s, Judge Sporkin was reviewing all the fraud involved, especially in the legal documentation, and in a fit of exasperation asked “Where were the lawyers?”
Well, when people look at the problems facing white collar criminal defense lawyers and all the issues associated with white collar criminal statutes, ans ask the question where were the lawyers, we know where they were: at Stetson University trying to do everything they could to make themselves better, to train other lawyers so that they can better represent their clients.
The term “white collar crime” was first used by the sociologist Edward Sutherland in 1939. And it originally referred to the status of the offender - a person of high social status. Today white collar crime affect a broader range of people, not just the upper crust, and greatly impact overall criminal justice system in ways that are really disturbing.
What you do as criminal defense lawyers is important and it is also very, very tough work. It is important because, unfortunately our criminal justice system remains extremely dysfunctional. For example, the United States has roughly five percent of the world’s population, but currently confines about 25 percent of the world’s prison inmates - many of them nonviolent drug offenders or white collar crime offenders. Either we are the most evil people in the world or we’re doing something terribly wrong.
What you do is important because the criminal defense bar is an integral part of our criminal justice system. If the criminal defense bar is ineffective or cannot do its job because of unreasonable laws, then our criminal justice system doesn’t work. The criminal justice system needs a strong and independent judiciary, but it also needs a strong and, yes zealous criminal defense bar. When liberty is at stake, there is nothing wrong with being zealous in the defense of your client.
This afternoon I want to suggest that, in addition to all the things we are doing to represent our clients better and more effectively on an individual basis, there is more we should be aware of and more we should be doing to support the efforts of NACDL on the public policy and legislative front. Each of you here whether a faculty member or a student - is a leader in the profession. You can have a huge impact on these policies and legislative efforts of NACDL and other organizations.
The first reform effort by NACDL I want to mention is grand jury reform. I’m not going to spend a lot of time talking to you about the details of what NACDL is trying to do, but I think many of you appreciate the importance of grand jury reform. For many of our clients, the game is over if they are simply indicted. The reputational hit of an indictment for many of us is simply irreparable. Grand jury advocacy can work and , surprise, grand jury abuse stills exists. For example, the grand jury is still improperly leverage witnesses through the procurement of misleading testimony. Unwarranted grand jury secrecy allows this to happen.
The second effort I want to mention and briefly talk about is NACDL’s effort, along with the Heritage Foundation, to show how the bedrock principle of Anglo-American jurisprudence - mens rea - is being eroded in criminal statutes. An NACDL study found that “Over 57 percent of the offenses considered by the 109th Congress contained inadequate mens rea requirements.” What is worse, some of the offenses contained in the Dodd-Frank legislation have no mens rea specified in the statute.
This is really important. If our criminal statues are too vague in defining the conduct the criminalize, then you have an almost impossible job in defending your clients. This impacts all of us - whether or not we are criminal defendants. Enforcement will become more arbitrary and capricious, and our basic civil liberties will be put into play. This is something on which even the Ron Paul supporters and the ACLU can agree. I mention this point not to be political, but to note that we have to find allies in these efforts.
I’ve been a government official. I know the government sometimes makes mistakes. Government agents - even if they are well meaning - are not infallible. We have over 4,500 criminal laws in the federal code. It is important for me, as a citizen, to know that we only put people in kail who intend to commit wrongful or criminal acts. This is really not just a technical legal issue; it is an issue of common sense and fairness. Furthermore, it is an issue that can rather easily be addressed and solved. Our criminal statutes can easily be reviewed, and those that contain inadequate mens rea - criminal negligence in nonpublic welfare statutes - and those where there is no mens rea - can be identified and overriding or default legislation can be put in place to deal with the situation. This should be easy to accomplish.
Now, back to the importance of the work we do. I read a wonderful email recently by my colleague Converse Bright - a criminal defense lawyer in Valdosta, Ga. Converse noted a few a years ago he was invited to participate in a leadership program at a Chamber of Commerce class. One activity involved showing the class how the criminal justice system works. One man in the group selected to be arrested. He stood in front of the group as if in the dock. The police officers explained to the group all the problems they faced every day in policing the community. Then the district attorney - with the arrestee still at the front of the room - explained what he was doing to vigorously prosecute criminals. I’ve done that!
Next, the Superior Court Judge got up and told the group he was giving maximum sentences to criminals, but the parole board was releasing them too soon. Then it was Converse’s turn to explain to the group the work of a criminal defense lawyer. Converse looked to the guy who had been arrested and addressed him by name. He then said, “ Mr. _____, you may not have noticed, but since you were ‘arrested’ I am the only person who has mentioned you by name. I’m the only person that has looked at you. That’s because I’m the only one that gives a dam about you, about your right, about your freedom, about you as an individual.”
I’ve practiced law for 38 years and there’s a lot of truth in what Converse said. That’s why what you do is so important.
Now, one more point. In my class we studied a case called United States v. Cintolo, in which a criminal defense lawyer was convicted because of some bad conduct. The case reminds me of one point - the final and perhaps mos t important point I want to make. How many of you recall the television show Hill Street Blues? Now recall what the sergeant said to his charges at the beginning of every show. “ Be careful out thee!”
Larry D. Thomson retired as general counsel of PepsiCO in May 2011. Previously, he served as deputy attorney general in the U.S. Department of Justice. He delivered an address on March 18, 2012, during the NACDL White Collar Criminal Defense College at Stetson University College of Law.
The Morales Law Firm would like to thank The National Association of Criminal Lawyers Champion for sharing this article with us.