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Sunday, February 12, 2012

Defending Those People and Sleeping at Night

I’ve seen my share of courthouses and haven’t walked into one yet that didn’t smell of a complex blend of antiseptic and morning breath and standard-issue misery. Even the new ones acquire an odor that seeps into the pores of that low-bid government tile and is one of the peculiarities of practicing law that they can’t recreate in law school. A trip to one courthouse is more or less a trip to them all, all places where lawyers stride in and out of conference rooms and clients shamble aimlessly at their heels and jurors loiter in hallways checking their watches.

I know this by virtue of a previous incarnation as a journalist, but mostly I know it because I am a second-year law student with one foot in the classroom and the other in the courtroom, where I carry the coat of a criminal-defense lawyer and soak up the subtleties I always missed from my place in the cheap seats. It’s what I do with some 20 hours a week not spent enumerating the advantages of a revocable trust or parsing the intricacies of healthcare reform. If you’re a law student, regardless of where your proclivity lies, the criminal-justice system is not a bad window on how all this academia works on the ground. As fields of expertise go, it is the law the most closely situated to the heartbeat and it is also the law that most closely resembles a street-corner shell game. Or at least that’s the way it looks from my vantage point, unjaded by years of dreary deal cutting and more than a little prone to outrage. People who will need fulltime work in the not-so-distant future should be wary of carving out niches, but I do like it when the stakes and the adrenaline are high, and my limited exposure to criminal law affords me at least that much.

I’m idly running all this through my head as my boss and I pull onto the interstate and head for some county courthouse where he is to try a DUI case and I am to observe. He thinks it will be good experience for me. Now the law is crafted to cover all contingencies, and generally does until some aberrant set of circumstances demands it be tweaked or scaled back, broadened or honed to a finer point. But there are contingencies from which no artful language can save you and for which the legislature is of little use. These are the stalled engines and the vomiting toddlers and, in our case, the expert witness clutching his chest on an emergency-room stretcher an hour prior to trial. The lawyer hangs up the phone and rethinks his strategy aloud. There is reason to believe the court will not take kindly to a continuance and so the defense must prepare to go forward, witness or no. If our client has followed direction, he is waiting hat in hand to have his day in court. I can see the gears turning in that lawyerly head as he articulates his stance, and then takes up the government’s racket and nimbly returns his own serve. Jesus, I ask him, how did that even occur to you? Just thinking the way they think, he shrugs.

As a person accustomed to taking two adverse positions and carving some truth out of the middle, I have had to work at this notion of aligning myself with one side or the other, using strategy to accentuate the positives and eliminate the negatives, whatever they may be. It’s important to know the other side so well that you could turn on a dime and argue their wrongheaded, unfounded position for them if you had to. It’s a technique I have the luxury of honing in the undistracted solace of the law library or at my kitchen table. To watch it done behind the eight ball in rush-hour traffic and against a ticking clock is to marvel at the skill of, say, an accomplished skater, when you’re still clinging to the rails.

That’s when it occurs to me that, at some point in your second year of law school, there is a subtle shift in the dynamic between the law-clerk you who is dispatched to the courthouse to fetch this or file that, and the would-be lawyer you, who is not a lawyer at all and who nonetheless has developed a sort of plucky hubris that says you get the idea and can take it from here, thank you very much. But this is the moment for which the law has been biding its time, the moment in which it gets to remind you that you don’t know one damned thing about one damned thing.

I’m learning, though. I’m learning the fine distinction between innocent and not guilty. A person who is not guilty is perhaps not innocent in the traditional sense of the word, but is culpable in a lesser way or for a different lapse in judgment than the government would maintain. A criminal-defense attorney is not always in a position to defend his client’s actions, but he has to defend his rights. It’s a maudlin sentiment more fitting for the pageant runway than for life in general, but a sovereign that wants to put a person in jail should at least be required to prove its case. And society deserves as much protection from overreaching prosecutors wielding a machete where a scalpel would do as it does from its own criminals.

We get to the courthouse and he explains to the client that there might or might not be a trial, but that he is ready nonetheless. As it turns out, though, the universe craves balance. A prosecution witness is sidelined as well, and the judge herself is hospitalized with some kind of swollen eyes. A stand-in judge tells us to come back another day. My boss laments the wasted trip. He tells me it’s always a victory when your client walks out of the courthouse with untethered wrists, but it’s hard to settle for a rained-out game when you knew you had a home run in you. I have not gotten to see a trial, but, just as he predicted, it has been good experience.

The law may be black and white at the margins, but is altogether gray in the vast landscape in between. And if you don’t buy into that theory, just give it time. Before law school is through with me, I’ll be crawling up into your head and arguing with myself.