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Washington Lawyer

Legal Spectator: Two Good Books, Lots of Great Tales

Legal Spectator: Two Good Books, Lots of Great Tales

From Washington Lawyer, September 2013

By Jacob A. Stein

spectatorYears ago, many years ago, the criminal bar was located on 5th Street between D and F. The  judges appointed the 5th Streeters to represent criminals who could not afford to hire counsel. Despite the fact that there would be no payment, we eagerly took the assignments. We wanted to be in a courtroom, and in the very serious cases, we might get our names in the newspapers, the Evening Star, the Post, and the Times Herald.

One of the local judges said that we like to take a lost cause and ride it horseback over the rim of hell. All that has been changed by the Public Defender Service.

Nevertheless, there are today criminal lawyers working solely on their own, or in a small firm, who like to take that horseback ride. They do not want to write memos or give advice to wealthy people. They don’t believe that is the real practice of law. The bigger the LLP, the less justice.

Abbe Smith and Monroe Friedman, two very distinguished lawyers, have just put together a book titled How Can You Represent Those People? published by Palgrave, MacMillan. It is a collection of essays by those who have taken that horseback ride.

For instance, Barbara Babcock (Yale Law School, clerk for Henry Edgerton of the D.C. Circuit, and assistant attorney general for the Civil Division of the U.S. Department of Justice) says about “Those People:”

I always wanted to be a criminal defense lawyer, which was even more unusual for a woman in the early 1960s than wanting to be a lawyer at all. Reflecting back now, I have no insights on the source of my ambition. Maybe it sprang from my Christian upbringing, my innate sympathy for the underdog, my love for the Robin Hood stories. Nothing really adds up. Criminal defense was a rare goal for men, too, at the time, especially at elite schools like Yale. Along with this set ambition, I also had a fixed belief that lawyers had a high moral duty to defend—the more heinous the crime, the greater the duty.

Tucker Carrington, in her essay, describes her work at the Public Defender Service. She says the work she did there was one of the most significant things in her life:

A few weeks before I left PDS, I tried my last case. Like every other case I handled, I wanted the best possible outcome for my client. But I also wanted something else out of it, too: Something for me. What I wanted was some sign, a capstone even, that my time as a public defender had been well spent—that I had become a skilled advocate, exhibited unwavering fidelity to my clients, and met the standard set by PDS: “The best representation that money can’t buy.”

Smith, the book’s coauthor with Friedman, says she represented a defendant who was convicted of murder, attempted murder, and car theft, and was sentenced to life in prison. Here are her interesting observations:

I like guilty people. I do. I can’t help myself. I prefer people who are flawed and complicated and do bad things to those who are irreproachable and uncomplicated and do the right thing. Flawed people are more interesting.

She says there is always something in the criminal’s background or rearing that gives an insight to the crime. Her clients were not wicked. They grew up in abusive or neglectful homes, falling prey to drugs or alcohol or gangs, were lacking in judgment, and had mental health problems.

She refers to Clarence Darrow (1857–1938) who “sought to make even the most hideous of crimes comprehensible. . . . [t]here were no moral absolutes, no truth, no justice. . . . only mercy.”

Well, believe it or not, the same day How Can You Represent Those People? arrived, I received another book titled In the Clutches of the Law/Clarence Darrow’s Letters, published by the University of California Press, edited by Randall Tietjen, a practicing lawyer.

Tietjen says, and proves, that Clarence Darrow was and remains the most celebrated lawyer in American history. Darrow has been referred to as the Attorney for the Damned.

Darrow wrote long, interesting letters. Here is a letter written to his close friend, Mary Field Parton, dated Thursday, November 25, 1920. He tells his friend what this most famous lawyer was doing:

I, like you, find nothing new from day to day. My office is filled all the time mainly by poor clients in trouble, people who have got money against the rules of the game & are trying to stay out of jail. People in all sorts of troubles: their wives crying & begging me to help as if I could do any thing if I only tried: how I wish I could but I can’t. Lord what an awful mad house the world is, and it is Thanksgiving day and all the damn fools in the world are giving thanks that they are alive. Well I am not.

Now, back to 5th Street in the 1950s. Whenever there was a big murder case and the defendant had no money, the judges called in Charlie Ford, the best criminal lawyer on 5th Street. In one of the cases, the defendant shot a man three times in the chest and three times in the back and reloaded the gun twice.

Charlie repeatedly asked his followers, “What do I say to the jury? They will bring in a first degree murder verdict and give him the chair. What am I going to say?”

We had no suggestions. Came the day of the trial, we saw Charlie’s closing argument. Here it is. Charlie stood up behind the defendant. Charlie put his hands on the defendant’s shoulders. He rested his hands there and rested them there for three minutes. Then Charlie screamed, “Sir, you are nothing but a second degree murderer. That’s what you are, and this jury knows it.”  

The verdict—second degree murder.

Reach Jacob A. Stein at jstein@steinmitchell.com.