Everyone Deserves a Decent Defense

Sorry if I am going overboard on the case of Officer Slager’s shooting of Walter Scott. I just can’t help it. If law school exams had been this interesting I would have enjoyed them much more. Real life is so much more interesting than anything you can make up. Even when it’s tragic.

What has me going this time is the behavior of Slager’s original Lawyer. I am very tempted to rant about what this lawyer did. Instead I will try to simply state what he did, according to news reports, and I will then point out what I would have done differently. He won’t be able to sue me that way.

First, the lawyer gave an interview. I try to avoid those unless they are clearly going to help my client. In the interview he stated that he withdrew immediately upon seeing the video of the shooting. I would never do that. In addition to making it a practice to avoid giving interviews unless they help my client in some way, I would never dream of discussing the fact that I withdrew from a case immediately upon seeing evidence that apparently makes my client look guilty. I would think that approach might not be especially helpful to my client. I would also not withdraw from a case just because I decided that suddenly there was compelling evidence against my client. That would be especially true if I had just finally bothered to look at the video of the shooting that was all over TV. I also would not care if representing a client might make me look bad just because I thought my client looked guilty on tape.

In fact, this would be incomprehensible to me. In virtually every criminal case there is going to be some pretty strong evidence against the accused by the time they are charged with a crime.

That’s because at some point there has to be some form of independent review of the evidence that leads to the defendant being charged. The procedure varies from jurisdiction to jurisdiction. However, you just don’t charge someone with murder based on a gut level feeling — at least you are not supposed to. It can happen. Just ask Amanda Knox. However, even when charging decisions are made responsibly that does not mean that the defendant is automatically guilty. Evidence can be wrong. That is what jury trials are for. Cases have to be proved beyond a reasonable doubt to a unanimous jury.

Regarding this incident, I already pointed out in a prior post that the video that apparently concerned this lawyer so much actually provided a possible defense. Which brings us to the second thing I would never do: the lawyer began talking publicly about the case before he had seen the most critical evidence.

Initially, he talked about a lack of evidence when he apparently had no idea what the evidence was. I would consider it to be a rookie mistake for me to talk about a case, even privately with the prosecutor, before reviewing as much evidence as possible. You box yourself in by doing that. The lawyer then flipped his prior position, proclaiming his client’s innocence, “immediately” (his words) after watching the video. He immediately withdrew and then talked to the media about that.

He apparently had not scrutinized that video as thoroughly as I did in just a few minutes — while I was simultaneously watching a basketball game (if it had been my client on that video the game would not have been on). But even with seriously divided attention, I could see Mr. Scott apparently batting the taser out of Slager’s hand before running away. That does not make me a genius. It just makes me competent.

The third thing I would not have done is to go public about my reasons for withdrawing from a case in a way that arguably would violate my ethical code.

I would also worry that I would be making yet another rookie mistake. Before describing how he withdrew immediately after watching the video, Slager’s lawyer said, “I really can’t comment”. Then he made his comments, apparently not believing that he was hurting his client. I would be very worried that I was. I would be afraid that it made my client look bad. It would not take a brain surgeon to figure out why a lawyer withdrew from a case immediately after viewing evidence for the first time. I would worry that people might think that I concluded that my client was guilty the minute I watched the video and that I decided that I did not want to be associated with him. Why else withdraw?

The fourth thing I would worry about would be appearing that I was clearly putting my own personal best interests ahead of those of my client. That is not what we are supposed to do, at least in my opinion. Other lawyers disagree with me. I have had this argument many times.

They say, with some validity, “Someone is going to jail at the end of the day and it should never be the lawyer.” I disagree. I would gladly go to the clink (and be greeted as a hero no doubt) rather than take a position that hurt my client just to avoid negative consequences for myself.

Just my personal code perhaps, but if we don’t put our clients first no matter what, what good are we? My wife hates it when I say stuff like this, but, again, I just can’t help it.

With that in mind you see why this bothers me so much. Criminal defense attorneys are all that stands between our clients and a prison cell. We are expected to sacrifice ourselves rather than throw our clients under the bus.

We work long hours, have extremely stressful lives, and have to accept the responsibility of having our clients’ lives in our hands. It ain’t easy. Nor popular. I’ve lost count of the number of cases I have had where the entire community was against me, especially when I was a public defender in a small rural community on Whidbey Island. My clients were not always well liked, to put it mildly.

But never in a million years did I turn against one of my clients in order to avoid that backlash of public opinion. Quite the opposite in fact. I relished it. It might have something to do with seeing “To Kill a Mockingbird” as a kid.

That Gregory Peck character was my hero. Ironically, I just began re-reading that book after seeing that Harper Lee has a new book out. I love reconnecting with Atticus all these years later. I see now that perhaps he influenced my career more than I knew. As the only lawyer in a small town willing to stand up for an innocent man falsely accused he was the model of what a hero criminal defense attorneys can be when they simply do their jobs, working hard to protect the rights of the accused. When they don’t they can easily become the villains in the story, even when their clients allegedly fill that role.


Originally published at www.seattlecriminallawyerblog.com on April 15, 2015.