Friday, May 6, 2011

The End of This Week and Thoughts about the Morally Ambiguous Job of Criminal Defense

It is Friday evening, and I am very glad to be at home. The weather is very good outside, the view of the mountains is really great, and I don't have any responsibilities to tend to right now.

I am tired. I am not sure why I felt so tired this afternoon as court ended for the week. But, something about the back and forth of cases, the back and forth with judges, and even the back and forth with clients had me worn out. By the "back and forth" I guess I am trying to talk about the emotional tension involved in trying to do my job as a criminal defense lawyer in the criminal justice system.

Working as a lawyer with the Public Defender's Office is not the easiest job - not just because we have a lot of clients to represent, but also because it is a job which is morally ambiguous. We do our work as those who represent the poor who are charged with crimes because we believe that the poor are entitled to a real defense when charged with a crime. We take pride in our public defender's office knowing that we provide better representation for poor people than most private attorneys in our county provide to clients who can afford to pay for legal services. But, we don't get to choose our clients.

And, clearly when you are representing a lot of people charged with crimes, it happens at times that you are working hard and offering your legal skill and knowledge to help someone who is hurting others. Of course, there are many cases in which the question of guilt is not clear or in other cases, an innocent person has been charged, arrested and put on trial when they did nothing criminal at all. But, there are a good number of cases where the charge is valid, where a person has stolen or broken into a house, or harmed another person in some way. Of course, there are many crimes where the person might be guilty, but there is no real victim (possession of illegal drugs or possession of legal drugs without prescription).

As a criminal defense attorney, it is your job to zealously represent your client's interest, which means "try to beat the case if you can within the bounds of the ethical rules, whether it is a good case or not." Of course, if your client says: "I just want to plead guilty, and don't want to fight the case even if it might result in an acquittal," that is their choice. But, most defendants, when threatened with jail time, etc., want to try to beat it if their chances are pretty good, and the risk of trial is not too great.

And, having practiced criminal law now for almost 17 years, I can tell you that the breaks often come to the least deserving, and the hardest results often come to those who really deserve a break. If you want to try and convince me that everything that happens in criminal cases is "God's will" you are going to have a very hard time, unless you can first drug me so that I lose my mind. I have been there; I have been in the middle of it; I have seen horrible injustices, but, then again, some good and just results as well.

But, one thing that makes my morally ambiguous job easier is that often the crimes charged are crimes that people shouldn't be punished for - or, at least shouldn't be punished so harshly as the law requires. So, that makes it very easy to do everything possible to "beat the case." I can't believe any society in the world would decide to lock up people who are 20 years old for drinking beer, or for smoking marijuana. Personally, I really detest marijuana because of experiences I have had living with people that smoked it all the time in college. But, objectively, I have seen people do a lot more harm while drinking too much and I have never seen anyone taken to the hospital for marijuana overdose whereas I have for alcohol poisoning. Still, why are we locking people up for getting a buzz? That is crazy to me.

Why don't we save our jails for people who are going around robbing people or raping people or breaking into houses, etc.? Why do we want to put people in jail for decades for selling some substance to another person who wants it? I understand that drug abuse is a big problem, but so long as millions of people are out there who want to use a drug, some poor people are going to be willing to sell it to them while working for some rich people who make money off of this selling and don't have to face the risk of apprehension and jail.

But, then there are cases in which I really sympathize with the victim or victim's family: murders, sex offenses, robberies, burglaries, felony thefts, identity theft.

There are cases in which I would like to be the prosecutor, because I feel like I would know how to prosecute the case and get the defendant who is dangerous in jail for a long time. But, I am not a prosecutor, but a defense attorney. I have a personal preference for defending other people, not prosecuting and punishing them. But, over the years, I have had a few days when I have really wished the attorney on the other side would do a better job prosecuting. There are cases that the defense should win, and cases that the prosecution should win (of course, the overwhelming majority of cases are worked out by negotiation and agreement in which prosecution and defense compromise). And, the very large majority of those agreements involve a plea of guilty and some type of sentence for the defendant. There is a sense in which most people charged with crimes get a chance or two before "the hammer really comes down on them." But, this is not always the case.

It would leave my soul at peace if the State would win when it is truly just, and the defense would win when it is really just and that negotiated agreements would be truly just. And, when it is really just, for me, does not always mean when the State has charged a defendant who is guilty is found guilty, nor does it mean simply that a defendant who is innocent is found not guilty (though it surely includes that). No, justice means when the result in the end is the will of God. And, God is not bound by human laws and systems of justice.

I do remember that God is merciful, and the God "who raises the dead." Sometimes human beings get another chance in life, a second chance. I like to see people get second and even third chances in life, just as I like to get second chances in areas of life where I have failed. I know there are cases where it seems to risky for the rest of society to let some individuals have a second or third chance at freedom. But, I have to trust that the rest of society will look after that. I am one who advocates for people having second and third chances in life, whether they seem to deserve it or not. There are surely enough straight-laced moral people in society who will be against that to keep the few of us who continue to advocate for those who are considered unworthy of being part of society in check.

Before I start a big trial, I pray: "O God, let your justice be done. Not the justice of human beings, but let your justice be done." I never know for sure what that might be. I try to do my job the best I can, abiding by the ethical rules, to "beat the case," and hope that something truly good and right is accomplished as the prosecutor tries to do her job the best she knows how and the judge and jury try to do theirs. And, as a system, we fail often, but not always.

It is easy to criticize the criminal justice system. We could do better. But, there is always going to be a lot of arbitrariness in it beginning with selecting whom to charge with crimes, to how seriously to prosecute those charged with crimes, to the zealousness and ability of attorneys who defend those charged, to the particular way a situation appears to a judge or jury who decides the fate of the one charged at trial and sentencing.

A good number of us who work in the criminal justice system (judges, lawyers, police officers) still really appreciate our Constitution that provides that no one can be deprived of life or liberty without due process of law, that anyone charged with a crime has the right to a jury trial, that a man or woman has the right to remain silent in the face of the demands of government to answer questions, and that anyone charged with a crime is entitled to have an attorney represent them - whether they can afford it or not. Our country's Constitution has built into it a strong suspicion of governmental authority. When government wants to charge someone with a crime and lock them away, we say: "you've got to prove he or she is guilty beyond a reasonable doubt - otherwise, they walk."

A real respect is shown to individuals through these constitutional rights and their implementation in our criminal justice system. It is a system where many mistakes are made, where there are certainly some corrupting influences, but perhaps more than any other system in our society, it reminds us of the importance of each individual person in our society. Because when we treat the most despised person in society with respect and fairness, it secures our commitment to treat all people with respect and fairness. Maybe the core values of our criminal justice system are really not that morally ambiguous at all.

Tuesday, May 3, 2011


I am grateful for a certain distrust of human authority that was passed on to me with a deep and sure confidence in Divine authority.

If you look at the Ten Commandments, there is the Great Authority, God, above all. And, then there is at the human level only one authority established: parents.

That's about enough authority for me. Every other form of authority is simply necessary as a practical and organizational matter, but not essential to life.

I just don't buy that it is to be assumed that there is Divine legitimacy to political authorities and authorities in society. I know this emphasis about all authority being established by God is included in Scripture - most particularly in Romans 13 - but so much of Scripture is critical and even undermines this teaching about "rulers of this world." Even Paul's own teaching in 1 Corinthians, chapter 1 seems all about challenging every human authority in light of God's revelation in Jesus' death. Also, consider the Bible's view of the authority of Pharoah in Egypt, or of King Ahab in Israel, or the Roman authority at the time of Revelation to John. And, consider how Paul dealt with Roman and Jewish authorities and ended up in prison again and again for it. So, I have to interpret what Paul wrote in Romans 13 about respecting authority in context of what he wrote in other letters, what he did, and what is written in other parts of Scripture. As I interpret passages like this, I also seek understanding from the experience I have in life of God's guidance and truth in dealing with authorities.

Authority and authorities play an important role in human life. The real trick I guess is to figure out how any particular authority is in relation to the Great Authority to determine if that authority has a measure of legitimacy. It is also important to realize that each one of us has to exercise authority in our lives whether we recognize it or not. I might say that all authority is to be suspected, but then what about my "parental authority" or "pastoral authority" or the authority I have over certain matters in the legal system. Yes, we all have a sphere in which we exercise authority. And, yes, it is good to be a little suspicious of all authority, even our own. Because there is only One who has authority that is beyond question.

Sunday, May 1, 2011

Being Part of a Church

I have been the pastor of a church since late June of 1989. I have been with my current congregation since the first Sunday of September, 1995.

A lot of weeks have come and gone, with Sunday acting as a center of gravity for so many weeks over the past 22 years.

For better or worse, I have been shaped into who I am by being part of a church, especially this church I have been with for almost 16 years. I have been preaching sermons for many of these people for all these years, and leading Bible studies, and talking with people about their sicknesses and their children and legal issues. I have been in hospitals, and funeral homes and at grave sides. We have worked on stopping leaks through sanctuary ceilings, assuring people in sorrow and trouble that we cared for them and still valued them. We have discussed our children and parents. This group of people walked with me and held me close when my father was very sick and when he died.

I have made it through the changes of life over the past couple of decades much better than I would have without my church: First United Presbyterian Church and now Fourth United Presbyterian Church.

It can really mean something to be a part of a group of people that gathers together to read the Bible, try to make sense of it, and comes together to worship God in the best way they know how. And, a group of people that has an unspoken but deep determination to never give up on each other.

As we have turned to God over the years together the best we have known how, I have come to the conclusion that this determination that manifests itself in small acts of kindness and understanding and trust is really an experience of the grace of God.