Jared Lee Loughner mug shot
I rarely write about criminal defense law, since it isn’t what I do. But today it’s worth taking on the subject in light of the attempted assassination of Rep. Gabrielle Giffords and the murder of Judge John Roll and five others. I write because it deals with the heroism of lawyers.
Several people have already been properly placed on pedestals due to their split-second actions in the face of great danger that saved the lives of many others. Had Bill Badger, Patricia Maisch, Roger Salzgeber and Joseph Zamudio not acted swiftly, Jared Lee Loughner would likely have continued his rampage.
But there are others that we also need to celebrate. And this likely includes his new defense lawyer, Judy Clarke, who defended the Unabomber and has been involved in other high profile defenses. I assume she will have the assistance of others.
Why celebrate the defense lawyer? Because here is a person that will:
- Represent a hated individual;
- Receive death threats from other wackos out there;
- Be outgunned by the Department of Justice;
- And move from a private practice in Southern California to Arizona in order to do it, and do it for public dollars as opposed to more lucrative private ones.
In other words, she and her team will voluntarily take on one of the crappiest jobs in America, and do so at great personal risk. Whatever personal risk may usually exist for the criminal defense bar — and it surely does for many who represent some tough characters with even tougher frenemies — it will likely be magnified a zillion-fold in a case like this.
I would have left this subject alone until I was reminded by an Above the Law story yesterday by David Lat of some of the risks. He discussed how attorney Tali Farhadian has moved to a prosecutor’s office after being reviled as one of the “al Qaeda Seven.” The “al Qaeda Seven” was the name Liz Cheney used to describe those lawyers that had the audacity to defend accused al Qaeda terrorists. While Cheney’s contempt of the Constitution was repudiated by many in the public eye, you can be sure there were many people hailing her conduct. That is just the type of spewing that can set off unstable people, and in a nation of 300 million, there are a few out there.
If you want to know what motivates a lawyer to take the risks of stepping into the malestrom, the answers will be many. For some it will include a deep appreciation for the Constitution, or a passion about an injustice being done. But those aren’t the only answers. The “How can you represent a guilty person” question is the classic cocktail party query that defense lawyers get (and us PI guys are spared), and I’ll leave it to others to more fully answer how they handle that: See, for example, Bennett, Greenfield, Kindley, Spencer, Koehler, Seddiq, Tannebaum, Horowitz, and Gamso.
But suffice it to say from my outside-the-criminal-defense bar perch, that I am continually impressed that there are people out there that will take great personal risks for people so universally reviled. This is not about the run-of-the-mill drug bust, DUI, or even a murder. I’ve always been impressed with those that had the courage to take the extraordinary heat simply for doing the job they were trained to do.
And since my personal definition of a hero is a person that sacrifices safety or comfort and goes to a place of danger, and does so for the benefit of others, then these defense lawyers will fit that bill.
Will it benefit the lawyer also by being associated with such a high-profile case? Sure. When it’s all over, there will likely be plenty of people wanting their services. But they have to survive the crazies first, and in a case like this, they are likely to be crazier than usual.
I have a lot of doubts about the altruistic motives of the attorneys taking this case. With as extended as this is likely to be they will make plenty of money, although I guess the first questions that need to be answered are (1) who selected this firm and (2) who is paying the tab. (if the tab is being paid by Arizona taxpayers, they have a right to be outraged at use of an out-of-state firm)
The publicity for their firm will be huge – you can’t buy enough advertising to equal the publicity boost the firm will get out of this case
I really see nothing heroic in this particular endeavor, just smart marketing
I have a lot of doubts about the altruistic motives of the attorneys taking this case.
I didn’t make any comments about altruism, but about courage. The defense lawyers I linked to have interesting comments about the issues of how and why they do criminal cases in general.
With as extended as this is likely to be they will make plenty of money…
I think it’s fair to say she would make more in private practice than in public money. She likely has sacrificed income in order to do this.
if the tab is being paid by Arizona taxpayers, they have a right to be outraged at use of an out-of-state firm
The tab would be the same regardless of whether it is an AZ public defender or a SoCal public defender.
The publicity for their firm will be huge – you can’t buy enough advertising to equal the publicity boost the firm will get out of this case
This is true. But the point of the post is: What is the cost to the lawyer when defending someone so reviled, as it brings out the crazies and with that, the potential for harm to the lawyer?
If this were Mississippi in the 1930s with a white lawyer defending a black man accused of some heinous crime, I don’t doubt that considerable risk would be involved. Under the current circumstances I think the threat is minimal. Courage manifests itaelf in the response and reaction to real threats – the threat here is hypothetical and perhaps does not exist at all
You miss the point on the use of a non-Arizona attorney – the tab may be the same, but the California firm will pump most of the money into California’s economy – the Arizona firm would pump much more of it into Arizona’s economy thereby more directly benefitting Arizona taxpayers
He missed that point because it isn’t germane to anyone except you. Loughner is being prosecuted on federal charges. That means that the fee will come from the federal budget, of which Arizona, with its wrecked economy and its border issues, is a net recipient.
@Patrick –
but not nearly to the extent that would be the case with a local law firm. If you think the point isn’t germane then speak with some taxpayers, if you can condescend to do so
I’m always taken with a comment that uses the word “condescend” to impugn the motives of the person with whom the commenter disagrees. The mere tossing out of such an epithet leads me to believe that its user is far more correct in his argument than mere fact or reasoning would suggest. @Avenger, you have won my heart and mind by your employment of “condescend” to smear Patrick to the core.
On the other hand, pumping money into the Arizona economy doesn’t strike me as a core concern here, particularly given that it’s not Arizona money going in and the pressure on any local attorney to defend so despised a person would be (to anyone who condescended to find out) overwhelming.
And yet, Avenger, I’m constrained by your wisdom and word choice.
Yes – I picked a much milder word than what I originally planned to use
@Avenger – “The publicity for their firm will be huge – you can’t buy enough advertising to equal the publicity boost the firm will get out of this case.”
This is a questionable assertion. Data (or at least prior anecdote) would help.
I for one, am a law student and have been reading a lot about this case (and Ms. Clarke in particular) and to be honest I don’t even recall which firm it is that she works for. I’m sure I read it somewhere but hardly even considered it important.
What do you believe is the advantage of Loughner receiving a defense comparably less robust than the zealous prosecution the media has all but assured him? What is more important to you: justice or revenge?
@Avenger – With as extended as this is likely to be they will make plenty of money.
Sorry for the double reply but this comment is too shallow to be ignored. From the NYT “Defense Lawyer is Known as a Master of Strategy” 1/11/11 p. A17 “After Ms. Clarke completed [toddler-drowner, Susan Smith’s] case, she returned to [South Carolina] the $82,944 fee…saying it was needed for the defense of other indigent people facing charges.”
When I served on the federal indigent defense panel in Los Angeles, the feds were paying lawyers $104 per hour. For death penalty cases, I think it goes up to $116 per hour or so. That’s almost 4 years ago now, but I doubt the rates have skyrocketed.
It is good advertising? Maybe. Somewhat. But I’m skeptical. See, you can display excellent lawyering in a high-profile federal death-penalty case. But the people who will recognize it as excellent lawyering are mostly other lawyers. People with a lot of money accused of crimes about money (securities fraud, money laundering, etc.) aren’t going to seek you out because you did well in a high-profile death penalty case. They tend to seek out a guy in a nice suit and a nice office, maybe a former prosecutor, who will make them feel like they really aren’t a criminal and it’s just a big misunderstanding. People with only a little money might seek you out — if they notice you. But people with a little money often aren’t following how well-lawyered big death penalty cases are.
Mostly what you’ll get are more invitations to take on tough death penalty cases at government rates.
Lots of people get by on less than $116 per hour. By the standards of the vast majority of the planet, it’s a princely sum. But it’s not big bucks for a lawyer. First-years at firms can make that much. (And they won’t have to fill out the paperwork, get their hours cut back, and wait for payment, like panel lawyers do.)
Anyone who believes criminal defense attorneys take on any particular case to get rich just hasn’t ever been, or worked with, a criminal defense attorney.
I once calculated that, taking into account clients who don’t pay those of us silly enough to let them do a payment plan, and the county refusing to pay us what we bill (they always find some reason to reduce the bill, no matter how small), I probably average around $30 to $50 per hour after taxes and overhead.
Still better than a lot of other people living in my area, but I’m never retiring, let alone getting rich.
By the way, the reason for the range of $30 to $50 is that some years I do better than others.
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