On Bedtime Stories: How Criminal Defense Attorneys Explain Their Jobs To Their Children

by Jamison Koehler on September 13, 2010

D.A. Confidential did an amusing entry the other day in which he described talking with his still young children about his job as a prosecutor. While Mr. Confidential initially enjoyed the fact that his children think of him as some superhero fighting the bad guys and putting them in jail, he eventually decided that this notion was a bit too simplistic even for such young children:

And so, not more than a couple of weeks ago, I came up with a nuance.  Here’s how it came out: “Did you put any bad guys in jail today, daddy?”

“Actually, no.”

“Why not?”

“Well, you know, not all people who do bad things are bad guys.”

Stunned silence.

“Okay,” I say.  “Sometimes we put bad guys in jail.  But most of the time we try to change bad guys into good guys.”

“Why?”

“Well, it’s better to have more good guys and fewer bad guys, isn’t it?”

“Sure.”  Pause for thought.  “Because with more good guys you can catch more bad guys and put them in jail?

Reading this led me to point out to him that, if he struggled with how to explain his role as a prosecutor to his children, he could imagine how much more difficult the same conversation would be for a criminal defense attorney. Always game, Mr. Confidential asked me to explain.  So here’s my take, with the caveat that my children are quite a bit older than his.

My children always found it pretty cool that, as a public defender, I used to represent the type of people depicted on the old HBO show “The Wire.”  This was something they could understand. Occasionally, they would also come across me in my study listening to a 911 call, watching a videotape or studying some crime scene photographs, and they thought that was cool too.

But I have to admit that, for the most part, my children have not devoted a whole lot of time thinking about what it is that I do.  They know that my wife and I are both lawyers, that we work on just causes, and that we both work pretty darn hard.  But, being children, they are too preoccupied with their own lives to worry much about what motivates us and whether or not we derive satisfaction from our careers.

Occasionally one of my kids has asked me the old cocktail party question:  How can you defend a person when you know the person is guilty?  To this, I have given the same response I normally give at cocktail parties; namely, the whole thing about putting the government to the test, letting a hundred guilty people go free so that one innocent person is not falsely convicted, blah, blah, blah, so forth and so on.    But I have to admit that, just as when I have tried to use this at a cocktail party, my heart has never been into it. My motivation is in fact far more complicated – and self-serving — than that.  And if people at a cocktail party can sense this, you can be sure your children do too.

So what answer would I give to my children if I were truly honest?

Of all the things I have read recently in the blogosphere about why it is we do what we do, Mirriam Seddiq has come the closest to describing my own motivations.

Seddiq talks a lot about sticking it to the man and, while I admire Seddiq’s defiance and her bravado, I generally have to part ways with her on this part of the description. I have no problem with the system as such.  I occasionally complain about individual police officers, judges, or prosecutors but for the most part I think that these are generally good people who are just trying to do their jobs.  I like to think of most prosecutors, for example, as being just like DA Confidential.

Where Seddiq’s description resonates with me is when she talks about that odd and self-serving mixture of competitiveness and ego. For me, yes, it has always been about competitiveness. I have learned to tone things down a little bit as I have gotten older, both personally and professionally, but I can’t get away from the fact that I hate to lose at anything.  There is something particularly challenging about defending someone against the enormous resources of the government.  And no matter how I feel about the strength of a case when I first begin to work on it, by the time it gets to trial I am not only convinced that I will win the case, I am also deeply convinced that I should win.

I have always had a weakness for the underdog and so yes, there is some of that in the mix. And for me, like Seddiq, there is a very healthy dose of ego wrapped up in it as well. There is, for example, nothing more gratifying than that moment when you walk into a cinderblock room at the prison, the smell of disinfectant all around, and see that look of relief in the client’s eyes, the look that, yes, help is here, we are going to get you out of jail, we are going to fight this case.

I realize that all of the motivations I have described above have far more to do with me than the client.  And my reluctance to instill the same sense of egotism in my children makes it difficult to explain this part of my motivation. Making the conversation even more difficult is that nagging sense that, even though I don’t believe that my approach toward defending a criminal defendant is unethical or immoral in any way, this approach as seen through the eyes of a child might very well seem so.

First of all, there is the difficult question of the truth. How do I explain to a child that for me the truth is a relative and malleable concept that depends solely on the evidence that is introduced at trial?  How can I justify my belief that my client didn’t commit the offense unless the government can prove beyond a reasonable doubt that he did, and even then I may still not believe it?

How can I explain that the question of whether or not my client actually committed the offense for which he is being charged has absolutely no significance to me and that, no matter how hard I try, I just can’t bring myself to care?  Doesn’t that sound immoral?  How do I not sound too cynical when I say that I never lose a wink of sleep at night worrying about objective questions of innocence or guilt and that I believe this should be the prosecutor’s concern, not mine?  After all, I will have done everything in my power to secure an acquittal for my client.  If an innocent man eventually goes to prison, it will be on the prosecutor’s head and not mine.

How can I justify the satisfaction I derive from delaying, tearing things down, throwing up smoke screens, and skewing and confusing things whenever it is in the client’s best interest to do so?  How can I justify the pleasure I get from the very simple and straightforward duty of loyalty I owe to the client, secure in the knowledge that I can push the boundaries and get away with things I might not otherwise be able to so long as what I am doing is in furtherance of this duty.  If there was one thing I learned as a public defender, it was to be creative and to try different things.

How can I rationalize the indifference I feel toward the suffering of the alleged victim and family members and how I believe, again, that this is the proper concern for the prosecutor and not for me? As Seddiq puts it, “we have to know that there is something a bit odd about a person who would kill anyone who harmed one of their own family members, but would fight to the death if someone was accused of doing that same awful  sort of thing to someone else’s family member.  It is a contradiction, it’s hypocritical.”

How can I explain the mix of ego and competitiveness that is involved in being a criminal defense lawyer and how, in an Adam Smith/Invisible Hand kind of way, I think the defense lawyer is actually more effective because of this self-serving egomania, not despite it.  After all, some of the best criminal defense lawyers have always been raving egomaniacs. When you think about it, you realize there is nothing more compelling, more effective, in achieving any objective than self-interest.

So, yes, DA Confidential, I envy you the simplicity of the conversations you are able to have with your children and I admire your willingness to introduce a little complexity into the equation as you and your wife concern yourselves with their moral development.

When my kids were younger, my in-laws were always concerned whenever I talked about my job in their presence.  My in-laws were concerned that the kids might mistake the empathy I feel for clients with a validation of the bad decisions the clients have sometimes made.  Even today I feel the need to tread lightly in discussing these things. After all, how do you explain this to anyone without giving the impression that you are cynical, immoral, uncaring, and bordering on sociopathic?  It certainly is not the type of mindset you want to model.

As a result, maybe there is a justification for continuing with the pat explanation about letting a hundred guilty people go free, yada, yada, yada, both with my children and with people at a cocktail party.  You just have to get used to the puzzled, slightly disbelieving look you get in return as the conversation naturally and politely moves on to a different topic:  So then, tell me, what is it that you do for a living?  It’s a simple explanation.  It’s harmless.  And, while maybe not complete, it is also true.

12 Comments on “On Bedtime Stories: How Criminal Defense Attorneys Explain Their Jobs To Their Children

  1. I’m ok with the borderline sociopath description, and I think you describe it to your kids exactly the way you’ve laid out here. I think kids can understand more than we think. I don’t think you should make excuses for what you do. Ever. In any way, shape or form.

  2. We’re all alone at one point or another; a CDL is your last and best friend.

  3. I disagree with your statement that if an innocent man goes to prison it is on the prosecutor’s head, not yours. How do you reconcile this with your post that stated that if a client violates probation it’s a reflection on us? Seems that if an innocent man gets convicted we’d better look long and hard on what went wrong.

  4. Mirriam: There are many contradictory things about my feelings toward being a criminal defense lawyer, but I don’t think this is one of them. There is a difference between knowing something intellectually and accepting it emotionally.

  5. Damn. Since you are not buying the misdirection, I guess I will really have to answer the question.

    Assuming I have done everything I possibly can, then no, I do not think it is on my head if an innocent person I have represented is found guilty. But that is a big assumption and, even when true, it doesn’t mean that I don’t start second-guessing myself. The decisions that would have seemed so brilliant had I won now seem woefully mistaken. And when I said I don’t lose a wink of sleep at night, I was referring only to the question of innocence or guilt. It doesn’t mean I haven’t lost sleep during preparations before trial (have I missed something?) or after a lost trial (what should I have done differently?).

    Apart from the celebrated cases in which DNA exonerates someone after 30 years, it’s also difficult to say how often this happens. Again, I don’t devote any mental energy wondering whether a client is innocent or guilty and, besides, innocence or guilt is often a question of degree.

    How do I reconcile all of this with my earlier assertion that we bear some of the responsibility when a client violates probation? With difficulty. But we have already discussed this, and, apologizing at that time for having been glib, I back pedaled considerably. http://koehlerlaw.net/2010/07/on-lindsay-lohans-legal-representation/. Norm Pattis concluded that discussion, if I recall correctly, by noting that you can lead a client to the courthouse but you can’t make her think. So let me try this tactic: What do YOU think?

  6. I have had innocent people plead guilty before, haven’t you? Innocent of the crime with which they were charged but having evidence enough to convince a judge or jury they did it or the stakes were simply too high.

  7. Yes, I have had clients who, despite asserting their innocence, have ultimately agreed to a plea deal based 0n the reasons you describe. But I’m not sure how that is relevant to what we’ve been talking about here.

  8. Great blog post, Mr. Koehler. To address only the portion of your commentary dealing with explaining your profession to children:

    My dad is a veteran criminal defense lawyer in Los Angeles. When I was very young, pre-school age, he explained to me that his job involved getting people out of jail. I started thinking of him as Robin Hood, specifically the fox from the Disney animated Robin Hood, freeing the poor animal citizens who were imprisoned for failing to pay unjust taxes.

    I understood his work a little better when I read To Kill a Mockingbird in junior high school.

  9. Ms. Sheahen: Thank you for the interesting perspective. I found it very re-assuring.

  10. Wow- this article was amazingly helpful to me both academically and personally. I say academically because I’m currently working on a research paper defending the morality of the office of a defense attorney, and I say personally because I am seriously considering aspiring to that career someday. I have argued two mock cases on the side of the defense and won both, as well as receiving “outstanding attorney,” awards- I have simply been hesitant as declaring that my goal to myself or my peers due to the fallout I have anticipated as to the morality of it- this article was tremendously helpful and I thank you for it Mr. Koehler.

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