I’ve enjoyed movies involving criminal trials as much — well nearly as much — as the next person, especially before I became a lawyer. (Afterwards, my interest devolved into seeing how many mistakes about courtroom procedure, the practice of law and the office life of lawyers I could find in what I was seeing, which was fatal to that temporary but willing suspension of disbelief essential to viewer appreciation.)
It’s true I entered law school at the age of 51 principally to be able to earn enough money to finish raising my two trusting children as I thought they should be raised. But I did feel I might be a good trial lawyer because I’d always been a big talker. As a seasoned movie-goer, I visualized myself mesmerizing juries with my words. Then I discovered mesmerizing juries came last. There was a lot, a lot, a lot of other stuff that preceded it, especially in civil litigation, where 90% of cases settle on the courthouse steps, if not before. As for crime in its less than murderous aspects, much of it is plea-bargained before it reaches fact-finding in court, which is what jury trials are all about, at least until the penalty phase.
[Before moving on, are we clear about the difference between civil and criminal litigation? Civil cases are claims of harm brought by one party against another that don’t involve alleged violation of a federal or state statute, or of a municipal regulation. The plaintiff (complaining party) seeks either injunctive relief — “Court, make him/her/them stop it!” or “Court, make him/her/them do it!” — or else money damages, as compensation for the alleged harm done. No one goes to jail or prison or is condemned to death. Criminal complaints, on the other hand, always allege statutory or regulatory violations, are brought against the defendant(s) by state district attorneys or federal assistant attorney generals acting on behalf of governmental entities and, if proven beyond a reasonable doubt, do result in jail or prison time, or — as in the recent Boston Marathon bomber trial, brought under federal law — a death sentence.]
Okay, back to me. What kind of future did I have in mind when I applied to five law schools in the greater Boston area and entangled myself in considerable federally-backed loan debt? Candidly, I was hoping for any kind of job I could get at what everyone thought of as “my age.” Lawyer husbands of neighbors counseled that after I had passed the bar, I should set up shop at any small local law firm that would give me a desk, and then represent anyone who came in: this potential client population, they anticipated, would consist of friends, or friends of friends, seeking divorces or separation agreements or modification of custody agreements, or perhaps a new will. No salary, of course. Just a percentage of whatever I brought in.
Theoretically speaking, there would have been an alternative to this unappealing prospect right at the outset, although no lawyer husband of a neighbor mentioned it. Any member of the bar can sign up at any Massachusetts trial court to represent indigent defendants and be paid by the Commonwealth. It’s not much per case, but probably more than a percentage of any domestic dispute fees I might have been able to generate. I could also have applied for a job as a county Public Defender and, if hired (despite my “age”), become a “regular” employee of the Commonwealth. These two avenues would have been open to me because criminal defendants are legally entitled to representation by counsel and few, other than members of the Mafia or those accused of white collar crime (that is, of playing footsie with the federal and state securities laws) can afford to retain private defense lawyers. Therefore the government which has indicted them must also provide a defense.
Perhaps not surprisingly, public defense work never crossed my mind. Defend criminals in order to send my darling children to good colleges?
I know, I know. Under the Anglo-American system of law, you’re not a criminal until it’s proven. Accusations can be wrong. You’re entitled to a defense. Even if there’s seemingly compelling “proof” that you’ve done what the criminal complaint asserts you’ve done, there may have been legal flaws in the way such evidence was obtained which should preclude any verdict based on it. I do believe all this. However, I’ve never believed it enough to step into a jail cell, even with a prison guard right outside, in order to confer with a sullen client, perhaps not guilty of the particular offense with which he was now charged, but only perhaps. (Although a defense attorney wouldn’t really want to go into that, because unlike in movies, the job after indictment is not to find truth, whatever it might be, but to identify flaws in the prosecution’s case.) I would have been especially reluctant to step into that cell if the sullen client were known to be generally comfortable with wielding knives and punching people even if he may not have done it this time.
That’s not to say I don’t admire lawyers who do step up to bat in order to preserve what they can of how our legal system is supposed to function. I know a wonderful woman, married to a man with whom I shared a secretary when I practiced law, who emerged from Harvard Law School with a stellar record, held a prestigious federal clerkship, and then turned down a great offer from a major law firm paying major money to go defend criminals in Suffolk County, which includes downtown Boston and its slummier corners. At the start, she earned barely a living wage walking into those prison cells alone. But her defense work, which is now in the federal system and supervisory, has since that humble beginning been praised and commended by the entire Massachusetts judiciary and bar. I might add she continues to correct you if you happen to use the word “criminal” in connection with anyone in her client base. “Alleged criminal,” she says quickly, with a smile.
So how about the other side? Nina Mishkin, tough on crime? Criminal Law was one of the five mandatory courses of the first-year curriculum at Suffolk Law School when I enrolled in 1982. I found it confusing. But then I found the other four courses confusing, too. (Constitutional Law most of all.) I suspect everyone did, but being twenty-two and twenty-three, they all played it cool and pretended it was a breeze. At 51, I sweated bullets. Going to law school “at my age?” What had I been thinking?
I did like the Criminal Law professor, though. She was about as old as I was but had gone to law school at 39, after an early marriage splintered into divorce. Then she practiced in the Middlesex County District Attorney’s office for eight years, building up trial experience. (I found out all this later, of course, not while her student.) She was also attractive, wore great suits which I much admired, and had good legs. She must have had the legs before she became a lawyer but they did add to her appeal as a role model. When the results of the Criminal Law exam, given in December, were posted in January, it appeared that sweating bullets had been of some merit as a methodology for learning law. I finished first in the class: 1/345.
Encouraged by early success, I made a mental note to take, in due time, the other course she taught, a third-year elective called Criminal Practice. Which, in my third year, I did. This was not, as you might imagine, simulated courtroom practice in a classroom, although there was some of that — to somewhat prepare us for what awaited in a real court. (“Objection!” “Objection!” “Objection!”) No, no. We would actually be thrown to the lions. Had I considered carefully, I might have had second thoughts. I have never done well with on-the-spot stress and angst. (Stress and angst that I can take my time with, although not good, is part of life. By contrast, thinking fast on your feet doesn’t come up very often.) But I already had a job offer for when I would pass the bar. (God willing!) And so, with carefree abandon, I registered. What the hell. That was exactly the right word. For me, hell is what it turned out to be.
It was then possible to offer live courtroom practice to students under a statute I can no longer cite permitting them to represent the Commonwealth in Massachusetts District Court (not to be confused with the federal District Court) under the supervision of an Assistant District Attorney. This court had jurisdiction over only a few relatively minor criminal offenses. (Complaints involving weightier matters were brought in Superior Court.) The two I now remember were “‘Larceny Under” (thefts of under $100 in value) and “OUI”s (“Operating Under the Influence” — that is, drunk driving). Over the semester, two OUI’s came my way. I knew nothing of adroit cross-examination, how not to lead the witness, how to rephrase, or when to make my own objections. Truth to tell, despite the 1/345 I knew nothing, and neither did any other law school student or graduate, about how to practice law, or how to try cases.
I nevertheless prevailed. Bottom line: Nice-looking middle-aged lady in navy blue nunlike skirt suit actually won. Both times. In front of two separate six-person juries. The second time, even the hitherto dour judge smiled approvingly. But the stress and angst to reach that result, the splitting headache that left the premises with me, were too high a price for prosecutorial triumph. At the end of the semester, I accepted the job offer from a (big) civil litigation firm, which provided plenty of stress and angst of its own, but spaced out over the next twelve years. Those two little OUI trials therefore became the only true war stories of my legal career — good examples of what thinking outside the box and life experience can do for you when opposing counsel and a not particularly friendly judge seem about to shut you down.
You want to hear? My pleasure. Another time.