Out of Balance: Our criminal justice system must demand better defense attorneys
I hear the talking heads on the different media shows discuss what they believe would create a better, more just criminal justice system. I believe wholeheartedly that if you want a better criminal justice system, then you have to demand better criminal defense attorneys. Period.
Let me explain. The system does not need tougher crimes or stricter sentencing guidelines or more minimum mandatory penalties. The system does not need any more hanging judges or myopic prosecutors trying to make a name. Nor does the system need more law enforcement officers, correctional officers, or jailors. Although the future of our society might be rooted in technology, the criminal justice system already is on the cutting edge of technology in many respects. No, society must demand far better from the criminal defense bar.
It seems counterintuitive, but it’s true. Better trained, highly skilled, trial-tested criminal defense attorneys with more relevant courtroom and appellate experience push the system forward when they ethically, but vigorously defend the accused. In fact, the criminal defense attorney[i] as a constitutional requirement is the glue that holds the entire justice system together as we know it. Putting aside the defense attorney jokes, think about our system of justice. Can you imagine a functioning justice system without defense attorneys? No because the question scarcely escapes its own statement. Without out ethical, skilled, and experienced criminal defense attorneys, the system as we know it, as we depend upon it, would collapse. This is not to say that the other components of the system like judges, police, jailors, or prosecutors are not important, but the constitution requires “effective assistance of counsel” and is conspicuously silent as to a good police force, strict laws, tough-on-crime judges, or hardnosed prosecutors ...etc.
By way of example, think of the decimation of the wolf population at Yellowstone National Park. Somewhere around 1930, the wolf population at the park was completely wiped out.[ii] At the time, it was believed that this was copasetic; however, over time, things began to change.
When the wolves were removed from the equation, the elk population began to swell out-of-control because the wolf was the main predatory of the elk. The wolf held the elk population in check. The surging elk population pushed the natural resources of the park to its limits. Without the wolf to hold the elk in check, the elk did what elk do, eat, and began to devour all the natural resources. There was no check to keep the ecosystem in balance.
As a result, the ecosystem was slowly thrown off kilter and began to plung into chaos. It was great for the elk as they thrived, but other animals and plant life began to suffer. Animals, like the beaver, and plants, like the willow strands, began to fail. This growing imbalance created by the elk caused the other animal and plant components of the ecosystem to wither. The imbalance even caused the streams to unnaturally shift course.
The beavers suffered because they needed the aspen and cottonwood plants to eat and build their dams. Without any check on the elks, these plants were overeaten and could not replenish fast enough to support the beavers. Without the beaver dams, the creeks and streams began meander and shift out of control as the water adjusted to complete freedom. This resulted in the fish and other wild life having to adjust. Each aspect of the system cascaded into the next causing a near cataclysmic collapse.
In 1995, a crazy idea was hatched. In January of that year, eight grey wolves were reintroduced into Yellowstone Park. The following year a few dozen more wolves were relocated to the park. With the wolves back on the prowl since their extinction in 1930’s, something strange started to change in the park. The beavers started to rebound as well as other small rodents and mammals. The wolves had changed the feeding habits of the elk. The elks were reverting to their original eating habits. With that change, came a wonderful trophic change to the park’s ecosystem. The beavers rebounded and made new dams. With the new dams, came the resurgence of various fish and birds. The streams and creeks began to shift back towards their original paths. Many things began to show major signs of improvement. The park remains on the road to recovery.[iii]
Okay, so what has the wolf reintroduction at Yellowstone have to do with our failing criminal justice system. It is simple, like the wolf example: there is a growing need to demand an improved defense bar.[iv] The hypothesis is this: a strong defense bar supports a just criminal justice system.[v]
A well-trained criminal defense attorney with relevant experience forces all the players in the system to abide by the constitution and the law. Keep in mind, the job of the criminal defense attorney is not “to get his client off.” On the contrary, the role of the criminal defense attorney is to ensure that the constitution is complied with above all.[vi] It is the job of the criminal defense attorney to make sure that the law enforcement follows the law when they initiate an investigation, conduct a search, effectuate an arrest, preserve evidence, or testify in court. In a similar vein, it is the job of the criminal defense attorney to ensure that the prosecutor seeks truth and justice, and not simply try to obtain a conviction. It is the job of the criminal defense attorney to work with the court. This includes professionally objecting when the attorney believes that the judge is not following the law or making a legal mistake. The more skilled attorneys are better at making a record to preserve an error for a higher court to review.
Essentially, criminal defense attorneys are the true gatekeepers of justice. Without criminal defense attorneys, our criminal justice system does not operate. Think Gideon v. Wainwright.[vii] Think Fourth, Fifth, Sixth, and Eighth Amendments. Think fair trial. Think “due process.” Who in our justice system do you think ensures that these constitutional principles are kept sacrosanct? Without criminal defense attorneys, how can anyone receive “effective assistance of counsel” or a “fair trial”?[viii] Without criminal defense attorneys, the justice system would fall into chaos. Or worse, the system would become a criminal injustice system or an inquisition.
Keep in mind that it goes without saying that better, more skilled and experienced criminal defense attorneys provide better representation to their clients on the average. There is no substitute for extensive trial and appellate skill and experience in this regard.[ix] In a current, alarming trend, jury trials are becoming less common (although that is why some would say we have courtrooms).[x] As a unfortunate, direct corollary with fewer trials, there are fewer attorneys that can competently try a case from the jury selection to verdict every year. Without “trial attorneys,” the jury trial will go the way of the dodo (and that is not acceptable in our society).
Make no mistake, the more skilled and experienced defense attorney is better equipped to assess a case and address discovery, witness, or evidentiary concerns pretrial. This attorney is usually more skilled and thoughtful in arguing pretrial motions, presenting a defense, and convincing a jury that there’s reasonable doubt as to the client’s guilt. Better defense attorneys hold the prosecutors to their ethical responsibilities. Not surprisingly, the more experienced defense attorney can properly evaluate a plea offer to determine if it is truly a bargain or create a trial strategy that puts the client in the best possible position to resolve their case amicably. Essentially, better criminal defense attorneys protect the system from the system.
Stricter laws, more mandatory minimums, or tougher sentencing guidelines are not the answer as time has shown.[xi] These things get a lot of media coverage and are flashy but end up hurting the system in many different unseen ways and unintended consequences. More law enforcement with a larger presence in the community is not the answer either as that usually creates more distrust and resentment.[xii] Larger prisons or jails to warehouse people has not been the answer either because it simply results in mass incarcerations and more recidivism.[xiii] More judges and prosecutors aren’t the answer for obvious reasons. A more effective justice system can be achieved by demanding better criminal defense attorneys doing what they do best - representing persons accused of crimes. In this regard, the criminal defense attorney is the best check on the system to maintain the constitutional balance.
The purpose of this blog is purely education/information and should not viewed as creating any attorney-client privilege between the reader and author. The opinions in the blog are the opinions of the writer.
Anthony Candela is a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles primarily criminal trials and appeals. He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. He was board certified by the Florida Bar in Criminal Trial in August 2008, recertified August 2013 and is pending recertification in 2018. He is also admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #agoodtampadefenselawyer
[i] In this article, the term criminal defense attorney refers to all defense attorneys whether they work for the public defender or are retained or appointed.
[iii] Some argue that the recovery is not complete and may never return the park to its original status, but nonetheless this improvement is noteworthy. https://www.usatoday.com/story/tech/science/2018/09/07/wolves-reintroduction-yellowstone-ecosystem/973658002/
[iv] Please do not misunderstand, the purpose of this blog is not to trash appointed attorneys or attorneys working in public defender’s offices. On the contrary, the writer was an assistant public defender for the better part of a decade and believes wholeheartedly in the defender system. In fact, many of attorneys working at any public defender’s office are by and large some of the most skilled, most enthusiastic in the profession. But there are a few problems with the current public defender systems are set up. In many states, the attorneys at the public defenders’ offices represent the bulk of the persons charged with criminal offense are paid pittance for their services. Adding insult to injury, these attorneys are routinely overrun with more clients that any person can humanly represent. Again, it goes back to the original premise – more resources into the defense part of the criminal justice system would ensure better representation.
[v] In other words, bring back the wolves in a sense.
[vi] Putting aside the specific ethical requirements.
[vii] 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
[viii] The companion argument is this: better skilled criminal defense attorneys with more relevant experience are less likely to stray from the requirements of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and more likely to properly represent their clients (outcomes aside).
[ix] No one would call a person a surgeon if that doctor had never performed a surgery. In the same vein, no one in their right mind would call a person a mechanic by-trade, if that person had never fixed a motor or tuned up an engine or repaired the steering or brakes on a car. The question scarcely escapes its own statement, but would anyone call an attorney a trial attorney if the attorney has never tried a case to completion? Or an appeal, if the attorney had never written a brief? Of course not. Relevant experience is always important in assessing the capabilities of any professional.
[x] https://www.pbs.org/newshour/show/jury-trials-becoming-less-common; https://www.nytimes.com/2016/08/08/nyregion/jury-trials-vanish-and-justice-is-served-behind-closed-doors.html; and https://www.law.com/dailybusinessreview/2018/06/01/the-ever-decreasing-jury-trial-rate-why-is-it-on-life-support/?slreturn=20180819000625
[xi] https://www.pbs.org/newshour/politics/5-charts-show-mandatory-minimum-sentences-dont-work; http://www.baltimoresun.com/news/opinion/readersrespond/bs-ed-rr-mandatory-minimum-letter-20170721-story.html; https://www.heritage.org/crime-and-justice/report/reconsidering-mandatory-minimum-sentences-the-arguments-and-against; and http://www.slate.com/articles/news_and_politics/trials_and_error/2017/05/district_attorneys_are_blocking_needed_reform_for_mandatory_minimums.html
[xii] http://www.justicepolicy.org/news/4829; https://www.nytimes.com/2018/08/20/opinion/the-police-arent-the-solution-to-chicagos-violence.html; https://psmag.com/social-justice/militarization-of-police-does-not-reduce-crime; and https://www.washingtonpost.com/news/monkey-cage/wp/2016/07/25/does-more-policing-lead-to-less-crime-or-just-more-racial-resentment/?noredirect=on&utm_term=.a377bb931346
[xiii] https://www.theatlantic.com/politics/archive/2016/04/ending-mass-incarceration/475563/; https://www.csmonitor.com/1982/0106/010644.html; https://www.brookings.edu/research/more-prisoners-versus-more-crime-is-the-wrong-question/; https://www.nytimes.com/1990/04/19/opinion/l-prisons-are-clearly-not-the-answer-to-crime-998590.html; and https://www.nytimes.com/2008/04/23/world/americas/23iht-23prison.12253738.html