Friday, October 8, 2010

This is Public Defense

Sometimes Trial Chicken is a warrior, ready to take on the world!
And sometimes the world wins.


I met my client Kim (not her real name) for the first time at her arraignment this summer.

I arrived late for the 8:30 docket call, like most days lately, having lost the ability to care about things like lateness as much as I should. I skimmed the docket posted outside the courtroom, looking for my name, because I hadn’t had time to stop by my office to check my calendar or grab the file. Slightly in my defense, the hearing was an out-of-custody arraignment that required nothing more than the entry of a not-guilty plea, which I was fairly confident I could handle without a file.

I saw my name near the bottom of the list, as the lawyer appointed to represent Kim Templeton, charged with Arson in the First Degree. My interest was piqued by the charge, because I didn’t get a lot of arsons, except for the bullshit arsons the state liked to lay on special needs kids who threw matches in trash cans at their group homes.

I tried to be subtle finding clients I hadn’t yet met in the courtroom, only as a last resort calling out names. I counted 4 women sitting in the court’s audience section. Two looked 60, but were probably meth addicts in their 40s; another was pregnant and scarcely 18; the last sat in the front row, and I could only see her pony tail and the back of her white summer shirt. I went back and checked the docket, because it also listed defendants’ birthdates. Kim, my new client, was born in 1977, making her 33--I would try pony-tail gal first.

I slid into the row behind her, touched her shoulder lightly, and asked, “Kim?” When she turned, I considered apologizing and turning to the meth addicts, because her beauty startled me. I have debated whether her beauty is necessary to this story; but—how do I say this nicely? —there isn’t a lot of beauty at docket call, which made her appearance all the more stunning. Her features were perfectly arranged and symmetrical, in a way that made you feel like you were looking at art, but something, maybe the light freckles on her nose and cheeks, made you think she would be nice. No smile touched her eyes, but her face wasn’t hard, rather somewhere between sad and serene. Dozens of purple-red scars crosshatched her forearms.

While we waited for her turn to say “not guilty,” I read through the affidavit of probable cause, wondering what this sad, beautiful woman had burned. Oh, for fuck’s sake, I thought once I read the summary of facts, the state had charged Kim with arson for trying to commit suicide by setting herself on fire. Because nothing will help a suicidal, depressed person like charging her with a felony.

I had planned on scheduling an appointment with Kim in a week or so—I didn’t have the police report yet, and I wasn’t up to anything more complicated than an arraignment after yet another night of fighting at home.

As we walked out of the courthouse into the sunny morning, I said, routinely, “Nice day, huh?”

She shrugged. “I guess.”

I cringed, feeling like an ass for trying to make bullshit small-talk, when I could tell that meaningless chatter wasn’t the way to handle this gal. I stopped walking and said, “I remember what it’s like to look at the blue sky on a beautiful day, and think, I remember I used to enjoy a beautiful day, but I can’t seem to remember why … or what it feels like.” I could remember this feeling because I was experiencing it at that moment. It had been a long time since I’d enjoyed anything.

“I want to remember ...” she said.

“Me, too.” I started walking again. “Let’s go over to my office so I can get some background and tell you what will happen next.”

I tried to keep my tone professional in my office, but Kim’s arms made me want to weep. Jesus, I thought, how much pain must she feel to do that? I felt ridiculous for feeling sorry for myself with my middle-class life and professional job. I was despondent and felt like someone had poured pudding in my brain, but I wasn’t cutting or burning myself.

“So, where are you living?” I asked this because the attempted burning of herself had rendered her house unlivable.

"With my soon-to-be ex-husband. Not the greatest arrangement ..." I was encouraged by the irony I heard in her comment.

"Oh, I'm doing that too," I said, trying to ignore the voice of a therapist who had lectured me about over-sharing and boundary issues. “It’s fucking awesome, isn’t it?"

She looked straight at me for the first time, trying to figure out if I was messing with her.

"In fact,” I said, “I might need to borrow a razor." I hoped that the pain I’d been slogging through was apparent enough to make the joke OK. After assessing me for another moment, she let out a loud laugh, which made me laugh too, partially in relief.

"You carry razors with you, right?" I asked. “Like in case of an emergency?"

"Of course. I’m ready for any suicide emergency.” Ah, irony and beauty coexisting in one person. My heart melted a little and I laughed loudly at this strangely hilarious conversation—so inappropriate, and yet …

Still laughing, I couldn’t stop the joke now. "Maybe you could market … a suicide emergency kit …” I prayed that I wouldn’t snort. Sometimes I snorted when I laughed really hard.

“Only if you’ll help with the legal paperwork,” she said with a delightful giggle. “Can I get a package deal on a business license and a last will and testament?”

I snorted. Loudly. And a snorting, inappropriate lawyer must have been the funniest thing that Kim had ever encountered, because she began rolling with laughter, which caused me to snort again, which caused us to begin laughing so hard we were crying; both of us, I suspected, from something other than sadness for the first time in a long time. I wondered what we might look like to an outside observer: an attorney and her client, cracking the fuck up, not based on the lawyer-client relationship, but on a connection formed from mocking a shared, if unequal, affliction.


And so, my public-defender friends, it’s been a little rough lately. A depression that I had been fighting off for a while hit me hard this spring and summer. I experienced it twice before, the first time about six or seven years ago, when a lot of things in my office began to suck, and the second time in 2008. With the Great Sadness 1, I had no idea how to cope with the despairing feelings, so I started getting up and writing every morning at 4:30 a.m., and ended up with a draft of a public-defender novel after a couple of years. Even back then, I knew that I was writing more to save myself than to tell stories.

I probably started this blog to fend off a new depression I sensed coming--there were so many fucked up things in my life and I felt powerless against most of them. I was sick of getting beat up for doing my job or for not grinding cases away fast enough on the plea-assembly line. I was mad at myself for not always being the best lawyer I could be. I was pissed that our system didn't care whether I was a good lawyer or not. A dismaying unionization fight had polarized our office, and the vibrant place I loved had become a dreary crypt where lawyers kept their doors shut and their eyes down.

I also had to take on some judges in fights, which is labor intensive and draining, and even if you win one of these fights, you’ll pay in the long run. On top of that, my marriage was grinding toward its painful end. Finally, and perhaps most distressingly, I had lost a couple of important friendships through a complicated collision of the above and my own self-pitying neglect of the relationships. I’m not trying to say I’m a victim or nothing was my fault—just that everything pretty much sucked.


When I felt myself slipping, despite the blog and the solace I found in connecting with other public defenders, I should have posted a “Back in 3 Months” sign. I couldn’t post that sign, however, because every new day was going to be the day I started to write again. But my thoughts were disjointed and sluggish. I could barely write an email conveying basic information.

Maybe it was time to quit this crazy public-defender job? But the few moments of beauty that I had were with clients or their families, and as much as going to work was killing me, even a long weekend at home made me feel worse. Kind readers and friends said, “Forget the blog and writing, take care of yourself.” But writing is how I take care of myself. And it’s no good when I can’t do it.

I told myself not to write about this, to simply make a breezy excuse and get back on that blogging horse. When I wrote about refusing to do a trial I wasn’t ready for six or so months ago, another legal blogger derided my description of my “panic” after the judge denied my motion to continue a serious trial I wasn’t ready for. I thought about responding—something like, How wonderful it must be to never experience doubt or worry! But, his world is different than mine, his audience different, and I mainly felt like he was yanking my pony tail. In the back of my mind, however, his criticism must have festered. Because I didn’t want to write about this. It’s too emotional. Maybe I am being too much of a girl for writing a whole (long) post about feeling sad.

The problem is, I do my best writing when I get as close to the truth as I possibly can. My process is to vomit all of my thoughts on the page, edit out the bullshit, and use what is left to help me find what I really think and want to say. When I tried to skip writing about The Great Sadness 3 by publishing the breezy post about being back from vacation and ready to go, it was just bullshit, which was a disservice to all you nice people who come to read this, but most of all to myself. It doesn’t matter whether I want to write about this (and believe me, there are other reasons not to: potential employers, prosecutors, bosses, friends, family, clients, etc. The internet is forever, man)--it comes down to this: If I want to write, I have to write the truth the best I can, and this is it.


I actually like to be upbeat. I think my baseline personality setting is pretty optimistic and happy, although I’m starting to wonder. I try to put a ridiculous positive spin on everything (Jurors deliberating for 8 hours is almost a win!). I have to admit that I was pleased in the past when I saw that bloggers or commenters had praised me for not engaging in the whining they described as prevalent in most PD blogs.

Several times over the years I’ve overheard prosecutors talking amongst themselves complain about some PD “whining” to them. I think they’ve even said it to my face, that they took my plea for mercy for a deserving client and categorized it in a neat box called “whining,” which excused them from analyzing how they were fucking with people.

While I agree that gratuitous whining should be avoided, there are also legitimate complaints that should be aired, wrongs that should be exposed, or experiences that should be shared—and these stories should not be suppressed for fear of being labeled “whining.” Just because the prosecutor dismisses my client’s tragic life story as whining, doesn’t mean I stop telling it. I may try different ways of relaying the facts, or adjust my attitude to one I think the prosecutor will respond, but I can’t stop telling the story because people don’t want to hear it. The problem isn’t that my client’s story is whiny or untrue or unsympathetic, or my client undeserving, the problem is that the people who should be listening don’t have any desire to hear about my client as a human being, and the more tragic the story, the more they don’t want to hear it.

We shouldn’t be afraid to tell the truth about what’s going on in PD offices and how it affects us and our families because some might call it “whining.” I’ve talked to enough PDs out there to be able say: Most PD offices in this country do not encourage and promote ethical, zealous advocacy—and it’s not the fault of the idealistic new lawyers who go into these jobs—it’s the fault of a system that sets up an impossible paradigm, and of the legal and judicial establishments, the bar associations, the law schools, and everyone else who claims to care about justice, but blame the lawyers rather than the system, or bemoan the problem without being willing to take on the political forces that shape the system.


Among other sins of pride I have committed, I’ve prided myself on being tough. I’ve brashly conducted back-to-back trials, thinking it a sure sign of nerve—until I realized the second (or third or fourth) client was getting screwed. I’ve volunteered to take tough cases I didn’t have time for. I’ve stood up to judges, and well, almost everyone. I think most of us consider ourselves tough, and we probably need that toughness in order to take on the cops and the establishment. I love the chutzpah, the bravado, the sick jokes that synthesize into the je ne sais quoi of PD offices.

But that toughness screws us, too. Because it becomes a point of pride not to crack under pressure—when maybe we should be cracking. It becomes a point of pride not to ask for a break in your caseload because that would be admitting you couldn’t take it. Or, we mock PDs who can’t handle the hard cases, or break under pressure, or ask for an easier job assignment to save their sanity.

Recently, a successful civil-litigation lawyer from Seattle flew to town for my client’s sentencing, because he was a friend of my client’s family. He had actually helped me immensely with the case, because he had been a public defender some 20 years earlier, and was able to reassure my client’s parents about the advice I was giving. At lunch after the sentencing, I asked the lawyer why he had decided to leave the PD’s office.

“I had two back-to-back robbery trials,” he said. “I was thrilled when I won the first one—I had thought they had my client dead to rights, but the jury hadn’t convicted. The second one, though, was innocent. Innocent except the jury found him guilty. I kept thinking—why didn’t I have the innocent one go first? That night, I remember sobbing in the arms of the woman who is now my wife, because I couldn’t take it any more.”

Shortly after that night, he left the PD’s office, opened his own shop, and started suing the police. He later moved his practice to a respected law firm where he is a partner and successful litigator. Sometimes, I thought after he told me his story, it’s not a personal or moral weakness that causes us to crack, but rather a system that gives us too much to do, inadequate resources, with too much at stake. In many cases, we probably should be cracking, and stubbornly refusing not to do so isn’t so much a show of strength as a sacrifice of our clients and ourselves.


When I was facing the Great Sadness 2, I came across an obituary regarding David Foster Wallace’s death by suicide. I had admired him as a writer, his essays are masterpieces, but I have to admit I never made it through what is widely considered to be his masterpiece, Infinite Jest. I had first discovered him when I came across "Shipping Out: On the (nearly lethal) comforts of a luxury cruise," in Harper’s Magazine, which confirmed my vague instinct that I never wanted to go on a cruise ship. When I read about his death, I cut out his obituary photo and stuck it on my bulletin board, where it remains:

I didn't really think about why I put his picture up, at the time I wasn’t thinking about a lot of things. Something touched me, and I pinned his picture on my board, and then looked around for other works of his to read. Ironically, the work I found that provided the most comfort wasn’t a written piece, but rather a commencement speech he gave in 2005 at Kenyon College, "This Is Water: Some Thoughts, Delivered on a Significant Occasion, about Living a Compassionate Life."

He begins his speech with "a standard requirement of U.S. commencement speeches, the deployment of a didactic parable-ish" story:
There are these two young fish swimming along and they happen to meet an older fish swimming the other way, who nods at them and says "Morning, boys. How's the water?" And the two young fish swim on for a bit, and then eventually one of them looks over at the other and goes "What the hell is water?"
Wallace tells the graduates that the real value of education isn't knowledge, but beginning to learn how to harness your thoughts to create your experience of life:
The liberal arts cliché about teaching you how to think is actually shorthand for a much deeper, more serious idea: learning how to think really means learning how to exercise some control over how and what you think. It means being conscious and aware enough to choose what you pay attention to and to choose how you construct meaning from experience. Because if you cannot exercise this kind of choice in adult life, you will be totally hosed.
His speech resonated with me, because I had been trapped inside my head, where I felt like a prisoner of my own thoughts, but hadn't been trying to exercise discipline or will to get out.
The capital-T Truth is about life before death. It is about making it to 30, or maybe 50, without wanting to shoot yourself in the head. It is about simple awareness--awareness of what is so real and essential, so hidden in plain sight all around us, that we have to keep reminding ourselves, over and over: This is water, this is water … It is unimaginably hard to do this, to stay conscious and alive, day in and day out.
Maybe you are thinking: perhaps you shouldn’t seek life advice from a depressed writer who killed himself. But then, if you think about it, of course this is where I should seek guidance. Maybe what’s most important isn’t the ultimate result, but the struggle. David Foster Wallace wasn’t a failure, I like to think, because he ultimately couldn’t vanquish this thing. It must have been too strong from the beginning. Wisdom, I am told, is gained through experience and adversity. I don’t want advice about coping with despair from someone who never faced it; I want it from someone smarter and more talented than I am, who was fighting a bigger monster than mine.


There were days this summer when the only way I could get to work was by promising myself that I could quit before noon. I apologize for the last post, because, like I said, it was complete bullshit. But I was bullshitting myself more than anyone. I did take three weeks off, but only because I knew I had to get away and had arbitrarily marked the time off on my calendar. I had lots of things I wanted to do, definitely too much, but in reality I lay on my couch and watched the sunny days pass by. When I felt better, usually around midnight, I made jewelry, which helped a little. I didn’t write a word.

A few weeks ago I was thinking, I wasted a summer, and I love summer up here. But now I wonder, is anything ever wasted? Maybe future summers will be better appreciated for this lost one … or maybe that is just more of my Polly-Anna-ish delusional thinking. If it is possible to be both optimistic and depressed, that’s how I am. Gee, I would think, I know something is terribly, terribly wrong with me, but I bet it will be better tomorrow! Finally, on the last day of the third week, I remembered that during the Great Sadness 2, I had finally called my doctor in desperation and asked for antidepressants. I had resisting taking them, but was finally so tired of the constant bleakness that I was willing to do anything. I wish I had decided this the first day of the three-week “vacation” rather than the last day … but so it goes.

It appears that I am finally getting back in gear. I’m not quite there, although I’m not quite sure where “there” is. But the fact that I’m writing speaks volumes.


I saw Kim the other day—I hadn’t seen her since our last meeting—I had been buried at work, and, well, depressed. She looked brighter; not happy or anything, but like a slightly brighter sun was shining on her. Her tone was definitely less flat, which made me become a clown in an effort to get her to laugh again. “You will observe once we step into the courtroom that I am going to run around looking frantic and disorganized as I attempt to juggle my clients while the judge is calling the docket. This is all an act to keep the prosecutors off their guards. Please do not be fooled.”

She put her hand on my arm, and smiled with one corner of her mouth, a beautiful, ironic half-smile, “Don’t worry,” she said, “I stopped at the hot dog stand before I came in, and the hot dog guy said that you’re good.”

“You’re kidding! The hot dog guy said I was good??" I held out my arms the best I could with my files and briefcase, and looked up to the heavens. “By God, I’ve finally made it!”

“Of course you have,” she said. “It was a fucking great hot dog.”


I was lucky that the last week of September was unseasonably gorgeous. Sunny, 80 degrees, flowers were at their peak, a moment from fading, but not quite, leaves were on the verge of falling, but hadn't yet. That week, for the first time, I started taking my dog, Millie, on walks again rather than only throwing the ball for her to fetch. Last Monday was such a bright, sparkly summer/fall day that I went home at lunch and walked Millie through a historic park near my house, where the formal gardens were lush with flowers, and the dahlias, my favorite, were magnificent. I tried to let go of thoughts of the lost summer, lost marriage, maybe lost career—to let go and be present in that moment with my dog, who had been with me through it all—always happy to play fetch although she’d rather go on a walk, always came to me when I cried—she was so excited to have me back walking. Surrounded by the bright sky, giant pine trees and exuberant flowers, it was easy to be just in that moment—feel the sun, marvel at the colors, absorb Millie’s enthusiasm, and as I walked along, I felt what I faintly recalled as joy, and repeated to myself, This is water, this is water …


I don’t know how much longer I’ll be able to remain a public defender. Like I said, some days I’m not sure I’ll make it to lunch. But it seems like every time I make up my mind—I’m out of this place!—a client will say something about the hot-dog guy, or whatever, and I know I’m in for another day. Or, a couple of times a neighbor or acquaintance has made hollow jokes about the soul-crushing emptiness of his job. The best thing about being a public defender is that we never have to search for meaning in our work. Because as impossible as some of this is to bear, a job where you feel that your efforts are ultimately without meaning would be worse. This pure purpose we have—to fight against the forever-overreaching power of government and to do the best we can for our clients—is something we should remind ourselves of every day--that our mission is righteous and the need is great. This, my public-defender friends, is water.

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