Monday, January 25, 2010

Got Guilt?

A couple of years ago, I attended a criminal-defense CLE—I don’t remember where or what it was about, or even who the speaker was, but one woman’s comment during a discussion period still resonates:

“I used to be a public defender,” she said,” and all I did was run around with too much to do, feeling guilty all the time.”

Wait, what did she say? Feeling guilty all the time?

But … you mean … It’s not just me?

I remember the waves of relief that washed over me. Until the woman’s comment, I hadn’t registered the constant guilt I felt—about the things I couldn’t get done in a day, the phone calls I hadn’t returned, the client I couldn’t help, the judges’ badmouthing of me behind my back, the constant criticism from prosecutors, the inability to be in two places at one time--and how much that unexamined guilt was abasing me.

I also hadn’t recognized, until I heard the lady’s comment, that the giant guilt turd I carried around was not my fault.

It is so ridiculous when you think about it—would you expect a doctor to schedule his own appointments, keep track of the branch offices, and then juggle visits, research and write memoranda, perform research in the field, and then in the middle of this, drop everything and go into surgery for a week or two?

I don’t have time to do everything I should do, and years of being conditioned to put out fires make it difficult to perform secretarial tasks when I have 45 minutes to spare between court appearances. Exacerbating the simple too-much-to-do situation, is a propensity for the other players in the system—judges, prosecutors, court administrators, even our own bosses—to blame the system's ills on the public defenders. Even when criticism is unfair, if it is constant, you will unconsciously start to accept it. And the next thing you know, you've lost your confidence and self-esteem. (Years ago, a prosecutor complained to me that she didn't like my "annoying bravado," which I thought was pretty funny, until guilt and stress made me fear I had lost said bravado.)

I’m sorry if this is a bit of a downer of a subject—believe me, I’d rather be funny—but this experience is at the heart of this blog and the proposed revolution. One of the powers of the internet is the ability to help us put our experiences into context. If it weren’t for the stories of other defenders across the country, I would probably think that it was just me--that I deserved to have guilt and criticism heaped upon me.  Maybe I wouldn’t totally accept the negative view of myself, but it would dishearten me enough that I wouldn’t put myself out in the world to reform something that might just be a personal problem.

I used to read PD blogs pretty regularly, but then got sidetracked with a few projects (wrote a novel, made shrinky-dink and other art) and only recently went back to find the PD blogs I had once read.  Most of the blogs were gone, but a few of the entries I found made me determined to get this PDR thing going.

From the last post on Defending Those People (August 2009)
"Despite the tragedy, the hopelessness, I think I savor the role of representing the underdog. Maybe I have a masochistic streak running through me? And not that I'm perfect, but I am good at what I do. I help people try to make better decisions. I make fewer mistakes than most, or at least feel that I do. I feel that I make a difference. Even if the difference is simply to help people understand what is going on and helping them choose from the limited decisions now available for them, that is good."
"And often nobody provides respect. Typically, the clients are most respectful. Not all of them, some of them are so unused to attention that they don't trust me, but many of them appreciate it, see that I am trying to help and are thankful. But overburdened prosecutors bite my head off. Judges often get so focused on moving cases they don't care about what must have motivated them to seek the bench in the first place."
Except for the word “overburdened,” which I would change to "asshole," I think, That’s exactly how I feel! It scares me, some of it, how exactly it is like my thoughts.

Maybe you think: I can survive it. I’m tough.

From the second-to-last post in Public Defender Dude:

"I am very burned out with being a deputy public defender. I used to enjoy the job, but now I don't. Suffice to say that I am an employee, and an employee who has been taught to fear for his job. Very sad that it has come to this.

"There was a time when I didn't care. But now I have kids to support. A mortgage to pay. I have to conform to what the bosses want. I have come to realize that I must do exactly what they say, or I will be fired. It isn't about protecting my clients. It is about satisfying my bosses."
And I know--have lived--exactly what this guy is saying, too.  OK, I don't do what the bosses say.  But I pay a price for it every day.

I did a little research about the psychological toll that PDs face (practice tip:  do not google "public defender" and "guilty" unless you want more results that you can handle).  I came across a law-review article that not only backs up these psychological effects that I mention, but also reinforces why the public-defender revolution is the only solution. In "Essay on the New Public Defender for the 21st Century," 58-WTR Law & Contemp. Probs. 81, Harvard Professor Charles Ogletree (who, after having read some of his work, I greatly admire), writes,
"The lack of institutional support for public defenders—coupled with criticism, often unfair, aimed at them from both sides—takes an enormous psychological toll on those in the profession. In order to understand the challenges faced by public defenders, one must examine the problems of insufficient institutional support, stringent criticism from the public and clients alike, and the psychological stresses resulting from these realities.” (Sorry, it's from Westlaw, so no link)
And I thought, Oh my goodness, He really has it down--a respected professor with this much insight and understanding of PD problems will make reform happen! 

Professor Ogletree continues:
"Of late, judges, legal scholars, and policymakers alike have noted the gravity of the problems facing public defenders. As a result, a number of people with substantial and direct knowledge of the inner workings of the criminal justice system have begun the task of proposing meaningful reforms of our present system."  Id.

Great, I thought, we don't need a revolution, the change will be happening forthwith!  Except, I left one thing out of the citation: the article was written 15 years ago, in 1995.

I wrote this post about the guilt I know we all feel to some degree, because I know that this whole PD revolution thing won't be easy. The guilt, stress, and demoralizing treatment drives defenders out of the system or leaves them riddled with doubt. Because when you’re the person that everyone denigrates, it makes you want to hide, rather than stand up for yourself. This crippling treatment, however, is exactly why we have to do it.  The choice we have is to band together and fight for reform using some powerful tools that are already in place, or put up with this bullshit for another 15, 20, 30 years.

So, come join me and the Public Defender Revolution:  I am not guilty, not that tired yet, and I know how to fight!


Jeff Gamso said...

Can a criminal defense lawyer in private practice join the Revolution? If it helps, I served on Ohio's Public Defender Commission for a term. If it hurts, I'll pretend I didn't tell.

carol d said...

Absolutely! (I even have some friends in private practice ;) ) S. Carolina PDs told me I had somehow hidden the email address: it's now under the Yep! icon, but also here: We're just getting going, but we're setting up a nonprofit organization, and we'll let you know the details.

Jamison said...

Welcome to the blawgosphere. You are off to a great start. I forget exactly how I ended up at this site but I think it was through a referral at Grits for Breakfast. I will be adding you to my blogroll.

I am a former PD from Philly. I remember sitting in my office with my former office mate just a couple of months before he left for private practice. He was a good, committed, effective lawyer and also a die-hard, do-good liberal.

He had just gotten off the phone with a client. I could hear just one side of the conversation but it was clear that the client was mad at him for something.

He put down the phone and looked at me. "I have gotten to the point where I absolutely hate our clients," he said. "It is time for me to leave." He was gone three months later.

Your post also brought to mind another story. My then 17-year-old daughter decided to come to court with me one day. I was running the list in a misdemeanor trial room and, between open cases and violations of probation, I must have had 40 clients on my list for that day. I thought I was doing a pretty good job, though the judge was mad at me for putting on what she believed was a frivolous motion to suppress on a case she thought should have pled.

Despite all her experience, the judge didn't seem to realize that many clients want to fight their cases no matter how poor the judge may think the case is.

I stepped out of the room for a while to convey a last minute offer from the prosecutor. When I returned, my daughter was ashen-faced. Later, during a break, I asked her what had happened.

"You won't believe the things they said about you when you were out of the room."


"The judge and the court people."

The judge apparently complained that I was taking so long to convey the offer.

My daughter left shortly thereafter, her faith in the American legal system forever shaken.

Later, when the gallery was empty right before adjournment, I complained to the judge about the things that had been said about me when I was out of the room. "At least, I said, you could have avoided saying those things about me when my daughter was in the room."

"Oh, that was your daughter? I was wondering who she was."

"Yes. That was my daughter." I had specifically alerted the court clerks that my daughter was going to be in the courtroom that day precisely to avoid this type of thing from happening. Apparently nobody passed that fact along to the judge before she took the bench.

"Well, you were taking so long to convey the offer, and we needed to get things moving again." The judge's personal assistant later told me, in the closest thing I came to an apology, that the judge was worrying about being late for a hair appointment.

I tried to explain how you need time to convey an offer effectively. It's a big decision, and it takes a long time with people (most people) who don't really understand the system. It's not in anyone's best interest to just jam it down their throats, even if it is a good offer.

"All of that should have been explained to the defendant when she came in for her interview."

Right. The last thing we needed to do with clients who already mistrusted us was to start talking about plea bargaining during the initial interview. Besides, most clients don't bother to come in for an interview. In many cases, we are seeing the client for the very first time on the date of trial.

Anyway, I thank you for allowing me to get that off my chest. I look forward to following this blog. Again, you are off to a great start.

Mary said...

I'm a little late to the party, but I appreciate what you said about feeling guilty. Too much to do, never enough time, wondering if I'll be ready for trial. I work way more than the 40 hours per week I'm required to put in...and then I dream about it at night! Yes, I'm a public defender. I wouldn't do any other job EVER. Still, I worry and stress about my cases. My office is way over the ABA suggested limits. I have several "life" cases and not enough time to prepare. I fear the worst for my clients...will I ever get it all done???

Anonymous said...

I have only just found this blog after many years - I don't know if you still read these comments. I totally know the feeling of guilt. But mine came from concerns that I had not done the best most perfect job on every case. If a client got convicted, I'd spend sleepless nights ruminating: was it because I should have asked different questions in cross, should I have articulated that point differently in my closing, should I have dealt with that piece of evidence differently, did I make that application or submission too early or too late or should I have phrased it differently before the judge etc.? I know there's the trial every lawyer runs - the one in court and the one in their mind that night. But do others feel 'guilt' like this? I hated losing cases. How do you deal with that, with the commitment to clients, and the perfectionism that a trial demands?