To the Editors of the Yale Law Review and other interested parties,
I got into law for a silly reason. Different lawyers, I’m guessing, have their own silly little reasons for taking up this path. Mine is a commitment to the public good. That I choose to defend the accused already puts my commitment in a dim light for some in the general public. Yet for my peers, to whom all my attention is now directed, the public good is endangered not by my commitment to it but by my conduct in pursuing it.
It is difficult to ignore the scrutiny that the results of my work has attracted. And I can’t entirely blame anyone for feeling as they do. My “record number” of trial convictions, always absent of very easy and obvious plea deals of any kind, “give pause”; still more, they “raise concerns” among the “proper channels” lurking somewhere in the depths of the “American Bar Association.” Not that they have yet risen above the level of concern. This is owing, I think, to a certain dissonance as to the exact nature of my conduct. Some are prone to take the lazy route and lay it at simple incompetence. Some are more elaborate, I would say overelaborate, laying it at some kind of prosecutorial chicanery. Still others see something more intentional beneath my actions, going so far as to call me the “advocate’s devil.” I don’t know exactly what is meant by that but I admit it’s clever.
On a certain level, I appreciate these criticisms, however meritless some of them are. But I can only go so long in accepting these unsolicited gifts without rewarding the givers with a deeper gratitude, even at the risk of raising new questions on top of older, still unanswered ones. Nevertheless, I am confident enough in my defense that I will not deviate from my usual approach, setting aside certain technical details—Whether or not my credentials can be rescinded. Whether or not I have credentials to rescind. Whether or not I grasp the concepts of evidence, admissibility, or discovery. Whether or not I know what murder is.—to hit straight at the heart of the matter.
Lawyers are fond of the truism that law is language empowered. That truism is what drew me in; what kept me in was the discovery that it was truer than most seem to realize and, as such, is far more complicated. For crime is no less a language than law. And both languages are forever colliding into each other without being all that eager to understand one another on their own terms.
Let me illustrate this with an example of an early case: a man was let go from his job. By all accounts there was little compatibility between job and employee. This was not known, alas, by the employee until it was too late. A certain acrimony took hold of him and he began to appear in the middle of his employer’s front yard dressed in a clown suit and wearing a werewolf mask. Sometimes he was seen holding a balloon. Soon, the fired employee took to appearing wherever his former boss was, and always in that costume. It is not clear to anyone whether he was affecting the role of a werewolf who clowns or a clown who turns into a werewolf, but the impact was the same. And being myself hardly indifferent to clowns with werewolf characteristics (or vice versa), I felt a certain degree of that impact when I first met him at the precinct.
Of course I was not there to extend the echo of society’s prejudices any further; I was there to listen if nothing else. It was not easy at first given that he said basically nothing in the course of our association. But I had something like a hunch as to his peculiar eloquence, which I had confirmed when he appeared next to me at arraignment still costumed. And it was confirmed all the more when he showed up no differently attired at trial. This case was actually among my more conventional. I was able to provide evidence—both from eyewitnesses and from surveillance—showing my client so dressed even where his former boss was absent. He was a clown werewolf while mowing the lawn. He was a clown werewolf shoveling snow for his elderly neighbor. He was a clown werewolf dropping his kids off at school. He was a clown werewolf taking collection at church. And in some of those instances, a balloon was seen on or near his person, for whatever purpose.
By these accounts it was evident that “costume” was entirely exterior to my client’s understanding of himself. So for that matter was the “menace” felt by his accuser. The case rested not on whether an action occurred or did not occur but on the proper interpretation of the well-documented action. What I merely had to offer was an alternate interpretation in which one person’s “menace” was another’s “gratitude.” The gratitude no doubt carried over when my client undertook his probation in his now standard mode of appearance.
“Congratulations,” my critics are sure to say. “You were right exactly once.” That hardly justifies, in their view, taking the schematics of that case and running with them across the criminal world, on weaker and weaker foundations no less. It betrays a concept of law guided by any number of disorders.
Lawyers and lay people alike are prone to generalize about bad experiences without ever consulting the experienced. Maybe because they know intuitively that the response they’re likely to get will fall short of their desires. It seems even defense attorneys find no contradiction in criminals being both diabolical and credulous. It hardly occurs to them that what I have to offer may, for some of them at least, be exactly what they need. This sort of defendant also sees their situation in linguistic terms. They know that the law is a powerful language, and the law couches its power in abstruse, entangled verbiage; no word is more entangled than “justice.” Justice, in fact, is the first failure of judicial process, for all involved. A defendant who seeks me out is one for whom clarity is a fair, even preferable substitute. My clients are criminals insofar as they speak in crime. In my capacity I am their translator. If and when they undergo their sentence, they do so having used the full measure of their voice, some even for the first time.
Defendants who are still keen on justice qua justice are, of course, free to pursue it. But what they need is a butcher. The law has many fine butchers, and perhaps owing to my taking a different style, some butchers are making themselves known to me very distinctly. But if my words get even a few of them to lay down their cleavers, maybe I will have gotten some justice for myself and we may all be happy.
At least my fear of being butchered is eased by circumstantial ironies. I am compelled to fight against allegations that I don’t fight at all. Because I cannot defend others, I must defend myself. And a ray of credential shines forth into my midnight of disqualification. Irony-laced fear is just one more empowered language; a domineering one in its way. Looming over that of law and crime like a babysitter minding two spoiled children.