{"id":2587,"date":"2020-12-15T23:44:14","date_gmt":"2020-12-16T07:44:14","guid":{"rendered":"https:\/\/www.crimeandconsequences.blog\/?p=2587"},"modified":"2020-12-16T10:54:39","modified_gmt":"2020-12-16T18:54:39","slug":"the-decency-defender","status":"publish","type":"post","link":"https:\/\/www.crimeandconsequences.blog\/?p=2587","title":{"rendered":"The “Decency Defender”"},"content":{"rendered":"

Much is being written (see, e.g., here<\/a>) about the “progressive prosecutor.”\u00a0 A progressive prosecutor, to sum things up, is an ideological defense lawyer elected in a one-party jurisdiction\u00a0 —\u00a0 virtually always Democratic\u00a0 —\u00a0 and financed directly or indirectly by anti-American billionaire George Soros.\u00a0 He typically promises public safety and concern for crime victims, but in fact couldn’t care less about either.\u00a0 His aim is to advance the interests of criminals, either by not prosecuting them at all, or prosecuting them on scandalously reduced charges, and then recommending some sentence like anger management (if any sentence at all).<\/p>\n

All the talk about progressive prosecutors got me to thinking.\u00a0 If we can “re-imagine” prosecutors, can we re-imagine defense counsel?\u00a0 We often hear that the re-imagined prosecutor should consider himself in a broader role\u00a0 —\u00a0 i.e., as a “minister of justice.”\u00a0 Would it be possible for defense attorneys to re-imagine themselves in a role beyond merely getting a walk for the client on this particular charge, and instead being an advocate for his client’s embracing a better life?<\/p>\n

<\/p>\n

To clear away the underbrush, I understand that this sort of re-conceptualizing the role of defense counsel would require a revision of the current walk-or-bust ethos of defense lawyering, in which counsel is expected to work myopically to achieve, as best he can, a here-and-now evasion of accountability for the client.\u00a0 It would require building on the Supreme Court’s insight in Georgia v. McCollum<\/a> that, while society is served by accommodating the attorney’s loyalty to the client, that accommodation is not unlimited and can be subordinated to more urgent societal interests\u00a0 —\u00a0 in that case, cleansing jury selection of racial bias.<\/p>\n

If we can envision “progressive prosecutors,” can we also envision “decency defenders”\u00a0 —\u00a0 attorneys who would be not merely counsel but counselor, and would understand that the client’s (and society’s) long term interest might lie in something more sober and less expedient than just beating today’s rap?<\/p>\n

If we can, what would a decency defender do that’s different from what defense counsel do today?\u00a0 Three things come to mind:\u00a0 A change in attitude toward truthfulness, and a change in attitude toward responsibility, and a change in attitude toward\u00a0 empathy and the recognition that your fellow man has the same feelings you do.<\/p>\n

A change in attitude that places greater value on truth telling would be a big step forward, both in the honesty of the system and its efficiency.\u00a0 Instead of encouraging guilty clients to plead not guilty as the first “move” in a “game,” a decency defender would tell the client:\u00a0 “If you’re guilty you should say so, and if your’re not you should say that.”\u00a0 It doesn’t require a genius to figure out that a system that more consistently values the truth will more often achieve it.\u00a0 And there’s this too:\u00a0 We would gradually erase the corrosive and terribly cynical belief that the criminal justice process is just so much game playing when\u00a0 —\u00a0 guess what!\u00a0 —\u00a0 the game playing gets cut out.\u00a0 And we would avoid the situation we recently saw in the Michael Flynn case, where Flynn first pleaded guilty, and then did so again, only to recant on a third occasion and have his lawyer say he only did it because the prosecution threatened his son.<\/p>\n

Wouldn’t our citizens, regardless of the various opinions they may have about Flynn, have been better served if Flynn had said from the outset, “Your Honor, the prosecutor is presenting you with what purports to be a plea agreement, but I can’t go forward with it.\u00a0 I’m not entering a plea because in fact I’m not guilty.\u00a0 I only even contemplated a bargain because they threatened my kid.\u00a0 The Constitution gives me the right to a trial to clear my name, and that’s what I want.”<\/p>\n

Truth clears the air in a way compromises with the truth never will.<\/p>\n

A decency defender would also take a different attitude toward responsibility.\u00a0 If his client harmed someone else\u00a0 —\u00a0 say, be stealing from them or defrauding them\u00a0 —\u00a0 the lawyer would encourage the client to admit this frankly, both to the court and the victim.\u00a0 He would then help the defendant arrange restitution\u00a0 —\u00a0 not, as is done now, as an artifact to trot out to the judge at sentencing in hope of skating by with a leniency, but because (again, try not to be shocked) when you wrongly appropriate what belongs to another person, you should pay it back.<\/p>\n

And there’s this, too:\u00a0 We hear that rehabilitation is, at present, an undervalued goal of the system.\u00a0 I happen to agree with that.\u00a0 A decency defender would take this to heart\u00a0 —\u00a0 not just as a slogan, but as a\u00a0 central part of what a wholesome relationship to his client should aspire to be.\u00a0 He would understand what is now so often missed (or intentionally buried) (and is one of the reasons genuine rehabilitation is so infrequent)\u00a0 —\u00a0 that authentic rehabilitation cannot be achieved, indeed it cannot even begin, until the client admits he did something wrong and tries to make up for it.<\/em><\/strong><\/p>\n

How can we expect a person who has committed a crime to start improving his life when we are unwilling to require of him what any serious parent would require of his fifth-grader?\u00a0 And wouldn’t it be refreshing, as well as wholesome, if his lawyer helped him come to that realization instead of acting every step of the way as an impediment?<\/p>\n

This leads to the third change that a decency defender would bring to the system, to wit, an acknowledged and encouraged role as a counselor<\/em><\/strong> to the client and not merely a hired gun to beat the rap.\u00a0 From my experience as a prosecutor, I came to the pretty firm conclusion that the most common reason for criminality is that the criminal simply doesn’t get it\u00a0 —\u00a0 or doesn’t get it nearly as much as the average person\u00a0 —\u00a0 that his victim has the same feelings he does.\u00a0 It strikes me that his lawyer is as good a position as anyone in the system, and perhaps better, to try to change this.\u00a0 The candor and baring of unhappy truths that can go on in a defense lawyer’s office can be put to a higher use than merely conjuring up a plan for a trickster acquittal.\u00a0 It can be the beginning of a relationship that helps the client see that his fellow creatures are just like he is.<\/p>\n

If that central truth takes hold in the client’s heart, then, most of the time, the outcome of this one case will pale in comparison to the awakening a decency defender will have helped to achieve.\u00a0 Until it takes hold, all the defenders in the world, decent or not, won’t be enough to give the client what he\u00a0 —\u00a0 and the people who will have to deal with him in future years\u00a0 —\u00a0 most urgently need.<\/p>\n","protected":false},"excerpt":{"rendered":"

Much is being written (see, e.g., here) about the “progressive prosecutor.”\u00a0 A progressive prosecutor, to sum things up, is an ideological defense lawyer elected in a one-party jurisdiction\u00a0 —\u00a0 virtually always Democratic\u00a0 —\u00a0 and financed directly or indirectly by anti-American billionaire George Soros.\u00a0 He typically promises public safety and concern for crime victims, but in fact couldn’t care less about either.\u00a0 His aim is to advance the interests of criminals, either by not prosecuting them at all, or prosecuting them on scandalously reduced charges, and then recommending some sentence like anger management (if any sentence at all). All the talk about progressive prosecutors got me to thinking.\u00a0 If we can “re-imagine” prosecutors, can we re-imagine defense counsel?\u00a0 We often hear that the re-imagined prosecutor should consider himself in a broader role\u00a0 —\u00a0 i.e., as a “minister of justice.”\u00a0 Would it be possible for defense attorneys to re-imagine themselves in a role beyond merely getting a walk for the client on this particular charge, and instead being an advocate for his client’s embracing a better life?<\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12],"tags":[],"class_list":["post-2587","post","type-post","status-publish","format-standard","hentry","category-counsel"],"yoast_head":"\nThe "Decency Defender" - Crime & Consequences<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.crimeandconsequences.blog\/?p=2587\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The "Decency Defender" - Crime & Consequences\" \/>\n<meta property=\"og:description\" content=\"Much is being written (see, e.g., here) about the “progressive prosecutor.”\u00a0 A progressive prosecutor, to sum things up, is an ideological defense lawyer elected in a one-party jurisdiction\u00a0 —\u00a0 virtually always Democratic\u00a0 —\u00a0 and financed directly or indirectly by anti-American billionaire George Soros.\u00a0 He typically promises public safety and concern for crime victims, but in fact couldn’t care less about either.\u00a0 His aim is to advance the interests of criminals, either by not prosecuting them at all, or prosecuting them on scandalously reduced charges, and then recommending some sentence like anger management (if any sentence at all). All the talk about progressive prosecutors got me to thinking.\u00a0 If we can “re-imagine” prosecutors, can we re-imagine defense counsel?\u00a0 We often hear that the re-imagined prosecutor should consider himself in a broader role\u00a0 —\u00a0 i.e., as a “minister of justice.”\u00a0 Would it be possible for defense attorneys to re-imagine themselves in a role beyond merely getting a walk for the client on this particular charge, and instead being an advocate for his client’s embracing a better life?\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.crimeandconsequences.blog\/?p=2587\" \/>\n<meta property=\"og:site_name\" content=\"Crime & Consequences\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/CriminalJusticeLegalFoundation\/\" \/>\n<meta property=\"article:published_time\" content=\"2020-12-16T07:44:14+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2020-12-16T18:54:39+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/www.crimeandconsequences.blog\/wp-content\/uploads\/2020\/07\/FB_DefaultLJ.png\" \/>\n\t<meta property=\"og:image:width\" content=\"300\" \/>\n\t<meta property=\"og:image:height\" content=\"400\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/png\" \/>\n<meta name=\"author\" content=\"Bill Otis\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Bill Otis\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"6 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"WebPage\",\"@id\":\"https:\/\/www.crimeandconsequences.blog\/?p=2587\",\"url\":\"https:\/\/www.crimeandconsequences.blog\/?p=2587\",\"name\":\"The \\\"Decency Defender\\\" - Crime & Consequences\",\"isPartOf\":{\"@id\":\"https:\/\/www.crimeandconsequences.blog\/#website\"},\"datePublished\":\"2020-12-16T07:44:14+00:00\",\"dateModified\":\"2020-12-16T18:54:39+00:00\",\"author\":{\"@id\":\"https:\/\/www.crimeandconsequences.blog\/#\/schema\/person\/d089f7e65aa652190318c44070da5e6e\"},\"breadcrumb\":{\"@id\":\"https:\/\/www.crimeandconsequences.blog\/?p=2587#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\/\/www.crimeandconsequences.blog\/?p=2587\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\/\/www.crimeandconsequences.blog\/?p=2587#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\/\/www.crimeandconsequences.blog\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"The “Decency Defender”\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\/\/www.crimeandconsequences.blog\/#website\",\"url\":\"https:\/\/www.crimeandconsequences.blog\/\",\"name\":\"Crime & Consequences\",\"description\":\"Crime and criminal law\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\/\/www.crimeandconsequences.blog\/?s={search_term_string}\"},\"query-input\":{\"@type\":\"PropertyValueSpecification\",\"valueRequired\":true,\"valueName\":\"search_term_string\"}}],\"inLanguage\":\"en-US\"},{\"@type\":\"Person\",\"@id\":\"https:\/\/www.crimeandconsequences.blog\/#\/schema\/person\/d089f7e65aa652190318c44070da5e6e\",\"name\":\"Bill Otis\",\"url\":\"https:\/\/www.crimeandconsequences.blog\/?author=6\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"The \"Decency Defender\" - Crime & Consequences","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.crimeandconsequences.blog\/?p=2587","og_locale":"en_US","og_type":"article","og_title":"The \"Decency Defender\" - Crime & Consequences","og_description":"Much is being written (see, e.g., here) about the “progressive prosecutor.”\u00a0 A progressive prosecutor, to sum things up, is an ideological defense lawyer elected in a one-party jurisdiction\u00a0 —\u00a0 virtually always Democratic\u00a0 —\u00a0 and financed directly or indirectly by anti-American billionaire George Soros.\u00a0 He typically promises public safety and concern for crime victims, but in fact couldn’t care less about either.\u00a0 His aim is to advance the interests of criminals, either by not prosecuting them at all, or prosecuting them on scandalously reduced charges, and then recommending some sentence like anger management (if any sentence at all). 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