NATIONAL CRIMINAL
DEFENSE COLLEGE

How I Spent My Summer Vacation (Just kidding Helga*)

By
Jennifer Kearney
Staff Attorney
Lincoln Co. Public Defender
North Platte, NE

*[NOTE: Helga is the Executive Director of NCDAA]

            Let me start by saying this, Macon, GA, in the dead of July is hot. Not just hot but melt your face off your skull sweltering, and there is no relief, because it is hot twenty four hours a day. Even when it rains. Even when it pours. And the NCDC Trial College was two weeks of heat stroke inducing hell hole that required 18 hours of drive time to get there. For two weeks I ate chicken, chicken and more chicken as apparently that was what they decided we should be served everyday for lunch. I don’t think I actually watched more than 20 minutes of television and if I made it to bed before 1:00 a.m., I was slacking off.

            And the truth is, if I had the opportunity to go back tomorrow, I would. I would pack my bags, tune the car radio to a top 40 station where I would inevitably hear the same Eminem song over and over and I would drive the 18 hours of back numbing tediousness just to experience it all over again.

            I am supposed to tell you all the substantive things I learned and rather than provide you with a book report about what I did, I am supposed to tell you how this experience changed me as a lawyer and how it made my practice of law better. I won’t really know the answer to that until [the next trial term in] December, and I am hoping it will be a positive thing that I will be able to report. I can’t really tell you how this experience made me a better lawyer, not from any practical standpoint.

            I walked into my first day of class and immediately was hit with, “Oh, you are one of the Fiedler scholarship kids.” I know Tim Matas, my co-recipient was told the same thing. Invariably every time I heard that, and it was a daily thing, it was immediately followed up with some variation of the phrase, “You have huge shoes to fill.” For those of you, like me, who never had the pleasure of meeting Don Fiedler, I feel compelled to say that the man is a living legend, especially at NCDC. Most people hate lawyers, and most lawyers have at least one bad thing to say about every attorney they have encountered. Not one, not one attorney I met on faculty or staff had anything but amazing things to say about Don Fiedler. What started out as a weird and quirky comment eventually became a daunting realization. Don Fiedler, on his worst day, was a better attorney than I will ever be on my best day.
           
            And if I ever forgot that sentiment, there was someone there to remind me. I was told stories of his humor, his grace, his dignity and his immense talent. I was told by many (and all claimed to be his friend) how much he was missed and how much I was unfortunate for never having known them. I was told stories about things he would do for attorneys, no matter where they were and how, I should be honored to have been given his scholarship and to be carrying on his namesake. Tim and I both heard, on a number of occasions, that good things were being said about us, because being there on the Fiedler scholarship made people take notice. By the end of the two weeks there was a general consensus, I think the words of one of our esteemed faculty sums it up best, “Nebraska certainly brought it.”
           
            But this article is not about what I learned about Don Fiedler, as fascinating as that information was. This article is about what I learned about being a defense attorney, how this experience shaped me to practice law as a defense attorney and how I plan to use that information to become a better advocate, and overall a better human being. In no particular order, these are the top ten things that I take as benefits from my time at trial school.
           
            Prosecutors are boring, and too many of us take our lead from them. Prosecutors are trained to take the elements and shape their cases based on some set out rule that is encapsulated in a statute. If you have ever taken the time to read statutes, you know, they are boring. Because they are written by legislatures, who try too hard to make the law apply to every single possible, and even inconceivable set of facts. Our cases, as defense attorneys are not about some lofty laws, they are about emotional connections. Whether that connection is to our client, the jury, a judge or even just the public at large, what makes our job the one that people ask about at cocktail parties is that our cases are sexy. They are factually driven, not legally defined. People don’t tune into cases about land forfeiture or adverse possession. They don’t drool over their televisions when a trial comes up about a car accident. There is litigation, and there is criminal defense. And criminal defense, well, it’s by far the most fascinating career in the practice of law. And yet far too many of us treat our criminal defense cases like church sermons. We don’t engage the jury, we don’t involve the courtroom and we all too often neglect the theater and the beauty of what we do. Don’t get me wrong, we come out blazing in cross examination, but we forget that there are about 100 other things we are supposed to be doing in a trial, not the least of which is engaging the jury.

            And juries, honestly, can be our best bow in the quiver, if we play our cards right. I was indoctrinated from the outset of my career that juries are a crap shoot. There’s a lot of truth to that. But juries can also be our greatest ally, if we take the time to actually engage them. And this has to start from Voir Dire. Voir Dire is boring, it’s invasive and most judges limit it because overall it becomes like the first intimate encounter you had with the opposite sex, essentially a lot of unfocused groping around in the dark without taking the time to determine if your partner is actually engaged or enjoying themselves. And if Voir Dire is uncomfortable for juries, imagine what a trial is like. Juries sit in a box with no paper, listening to technical testimony that is often over their heads and are told to remember things that we could barely pay attention to if we weren’t emotionally invested in the case. We don’t take the time to entertain them because we, somewhere a long the lines, drank the kool aid that cases and trials are about clinical detachment from what we are doing. We are just the presenter, letting the jury know what the evidence shows, or what the reasonable doubts are, rather than engaged and active participants. Our clients deserve more, and the practice of law requires more. Creating a picture for the jury is not mumbo-jumbo, new age babble. It’s an absolute obligation and more importantly, it’s the only thing that sets us apart from our prosecuting counterpart. A jury doesn’t want to hear that on this day and at this time the officer saw our client do X. They want to know what drives our clients, why they made the decisions they did, and even in the worst cases, they want to know that there is some humanity to the person sitting at the defense table and they want to hear why that person deserves even an iota of their attention.
           
            Which brings me to the issue of our client management. I have been guilty of this more times than I can count. Tell me if you recognize this scenario: Client walks in, sits down at the conference table for the 15 minute interview you scheduled. You get his background information, his record, his education, all the things that you know you will need for a bond argument. You read him the reports, tell him where the weaknesses in the case are, and tell him what you will try to get as a deal, or why you think the case should go to trial. Then he’s hurried out the door while you go on to another case or make another phone call. Most of us, if we are lucky, may have a few extra minutes to discuss their kids or their jobs or some aspect of who they are, but rarely do we get enough time to really get to know our clients. And if we don’t know our clients, how can we possibly understand them. I realize there are clients that we will never understand, and probably never want to understand. But since returning from NCDC, I have realized that taking that five extra minutes to find out what drives them, what their fears are about their case, what they want to see happen can make the difference between a client who says you did everything for them, and the client who goes out and tells people that you suck as an attorney. I can’t do it for every case and I don’t do it for every case, but even taking the time with a few of my clients to get to know some aspect of them that no other attorney has ever asked them before can make the difference between cooperation and outright chaos. There’s a term at NCDC called rocking with your clients, it doesn’t mean partying obviously, but instead evokes the idea of sitting with your clients and rocking away on a porch in the fading sunlight. It’s amazing what we can learn about our clients and ourselves in this process.

            And it’s important that we learn these things about our clients, but also about ourselves. It’s no secret that the practice of criminal law can burn us out. But burn out isn’t really the term, it’s not that we are burnt out because of the hours we put in, the cases we handle, or the things that we see.  Those of us who make a career out of defending clients (indigent or otherwise) know that there are more profitable careers out there that wouldn’t require near the work or the dedication. We don’t do it because the perks are high or the value of what we do is immediately recognized, we do it because we are completely and hopelessly addicted to the work we do. We tell the best stories at cocktail parties, it’s true, I have spent time with transactional attorneys and believe me, they are not exactly tantalizing communicators. I used to say that my going to law school destroyed my ability to have a normal conversation. I was wrong. My being a criminal defense attorney has destroyed my interest in pretty much anything else. We are not burnt out, we are beat down. And the only cure for that is being able to look across the table at our client and know that we did everything we could for them, even when the odds were against us, and not because of some ethical rule, but because we took the time to actually get to know the person across from us and decided to take the time to fight for them. We provided for them the same defense, enthusiasm and advocacy we would want someone to provide for our own family members.

            Advocacy requires that we think, plan and discuss our cases. It requires that we open ourselves to every possible defense, every possible attack and every inconceivable consequence from our decisions in trial. Prosecutors think like prosecutors. They don’t think like defense attorneys. They refuse to, and they rarely if ever really listen when you point out the holes in their case. Defense attorneys, when we do it right, we think like both. And we should be. We should be taking the time to craft and present, even if just to another associate or partner, what the state’s side of the case will look like. And not, “I expect them to do this,” I mean really think like a prosecutor. How would I present this, what would be my argument, where are my strongest approaches? You cannot know how to defeat your opponent if you never take a moment to study your opponent. Football coaches watch videos of opposing teams long before they play them, and yet many of us fail to even consider the prosecutor’s side, often honing in only on our own defense. We develop our theory and run with it. I was told once that the best part of criminal defense is the ability to be creative, but that creativity cannot be limited to just our case.

            Thinking and planning also requires us to determine how to present our case. I would be a hypocrite if I didn’t admit this, my favorite part of trial work is cross examination. Nothing thrills me more than pinning a witness to the mat like a bug. Nothing excites me more than the possibility of being aggressive with some useless officer or some jailhouse snitch. But one of the worst parts of trial work, especially in cases involving violent crimes, is going after the victim. We all know the victim, no matter how despicable, is still a victim and we have to dance a tenuous two step in order to make sure we don’t offend the jury. We allow ourselves to be put on the defensive and we tiptoe around, when necessary, until the jury gives us the permission to do more. If there is any place where the prosecution has a leg up on us, it’s here. We can’t call officers liars, we can’t attack the victim, and some witnesses can wriggle free and redeem themselves, no matter how scathing the cross. And if we aren’t careful, we look like bullies. Why don’t we ever put the prosecution on the defensive? Why don’t we ever make them uncomfortable, or force them to attack someone that it’s not desirable to attack? Because, for the most part, most of us suck at direct. We don’t care about it, we aren’t interested in it, and we tend to prepare as if the prosecution couldn’t get past a half time motion to dismiss. And how many times have we been successful with that motion? Cross examination is a skill, but direct is an art. It’s a no-brainer to attack a moron witness or a slimy co-defendant. But creating a sympathetic defendant or a credible defense witness takes finesse, it takes genuine conversation before the jury, and it requires emotional connection. Most of us gloss over this process, but ask yourself, how much fun would it be to watch the prosecutor have to cross examine your delicate witness? And trust me when I say this, prosecutors don’t know how to do it. They are used to cross examining the awful defendant or his manipulative girlfriend, mother, etc., because we don’t take the time to humanize these people on direct. Direct has always been thought of as a prosecutor’s thing. We need to make it a defense thing.

            And when we are on cross examination, we need to stop fighting with the witnesses. I have had some painful witnesses to deal with; most of them are sarcastic and over the top with their saccharine goodness and their unvarnished halo. They don’t want to answer our questions and they aren’t happy until we get flustered and just move on. Far too often we forget why we are doing a cross in the first place, while we focus on what we are doing. Witnesses, when you really listen to them, can give you gold. Witnesses, when you ignore their flippant comments, can make a jury crazy. And witnesses who try too hard, as they are want to do because that is what they have been prepared to do by the prosecution, destroy their own credibility. We don’t need to do that for them. The cross examination is not their testimony, it’s ours. Losing control of it, well, is basically the same thing as losing the case. Punishing a witness should be reserved for when you get permission from the jury.

            And, as if I haven’t spent enough time talking about juries, there is something else here that bears mentioning. I can’t tell you the number of times I have had a prosecutor tell me that they don’t have to present anything on motive. They don’t need to tell the jury why, they just have to prove the elements and that’s enough. And most of us probably agree. But the thing we forget is, juries want to know why. They do, they can’t help it. They are drowning in overly dramatized procedural shows that always have some reason why the person on trial committed the crime. Every juror goes into a criminal case thinking it’s going to be something like Law & Order, and for some reason, we feel the need to tell them it won’t. Why? Why can’t a trial be like a play? Why can’t a trial have a beginning and an end and a climax and a central conflict that we, the protagonist, must deal with and explain? Juries want to know why, and it’s our job to tell them. We know the prosecution isn’t going to do it, and if they do, in the off chance that your prosecutor has taken even an hour to really look at their case, it’s always some ham-fisted explanation that is as flimsy as the plot of an M. Night Shyamalan movie. Just because the rules of jury service require that a juror doesn’t know anything about the case they are about to hear, doesn’t mean we have to prove that we don’t know shit about the case we are about to try. Every human being has a motive, a reason for something they did. Whether that’s actually committing the crime, admitting to a crime they didn’t commit or doing something else that is incredibly dumbfounding. Find that motive, and you find your explanation for a jury. Juries want to know why, and since the prosecutor isn’t likely to be able to give that to them, maybe we should try. It couldn’t hurt.

            While I was at NCDC one of our presenters talked about A.W. Shucks. He’s the lawyer we all know, and the lawyer that some of us may be at times. He’s the lawyer who sits back and never objects. He doesn’t know the rules of evidence, and if he ever did, he forgot them a long time ago. He lets damaging evidence in, he fails to object to even simple hearsay and at the end of the day, he’s distinguished by this phrase, “Oh well, you can’t win them all, it just wasn’t our day.” I’ll be the first to admit, I have had those trials and hearings. Some of them I will chalk up to the foolishness of youth and the insecurity of early practice, others I will simply say I wasn’t as prepared as I had hoped to be, or maybe I wasn’t as prepared as I should be based on the charges that were filed. And sometimes, and I can’t believe I am going to admit this, I was too intimidated by the charges to object when I should have. Whatever the reason, most of us have those moments. I am not talking about that, I am talking about the defense attorney who hasn’t read the rules of evidence since he studied for the bar, and we all know someone like that, the attorney who checked out of the case six months before the trial even began. If there is ever anything I hope to avoid in my career, it’s becoming that guy, because that guy, hell, he may as well go work for the prosecutor’s office since they seem to have roughly the same level of attention to detail. Look, trials are exhausting and grueling and hard work and sometimes our attention wanders and our desire to just get it done with is so overwhelming we are halfway through cross when we start imagining that cold beer we will inevitably imbibe too much of once the court adjourns for the day. But there is no excuse for us, the smart ones in the trial, to ever be caught resting on our laurels. As the NCDC t-shirt I coveted states, “The Prosecution may rest, but we never do.”

            Finally, (I know some of you are thinking thank God), this is the most important thing I learned and something that I think most attorneys forget if you take the time to really talk to them. I don’t know everything. Hell, I barely know anything, and that includes not knowing shit about how to run a trial. I am constantly annoying my boss, asking him questions and to get his advice, and while sometimes his answers infuriate me, most of the time I know he’s right, (just don’t tell him that, he already picks on me enough). While at NCDC I was told that I had become a member of the largest firm in the world, and so far, it’s proven to be true. Statistically, we are a dying breed, criminal lawyers. Look around at the next NCDAA meeting and tell me what you see. Young people who are just starting, or guys who have been doing this for thirty years. Rarely is there a substantial number of people in the mid range who have been practicing for 10+ years. It’s either newbies or, for lack of better terms, grey beards, and nothing in between. The reality is, this job can be isolating and disturbing, often times exposing us to things that we had never hoped or planned to see. Sometimes its isolating because our names ends up in the paper next to the name of someone who has done something totally heinous, and the social connections we have, they just don’t understand it. As if, we ourselves, had committed those crimes. No matter why this job isolates you, you are not alone. You are a part of a practice of people who live and die by the idea of what this system is supposed to represent. And it is always a practice, there are always new and interesting ways to do things, and there are always things that you just don’t know. And for some reason, when I attend NCDAA, the newbies sit on one side and the grey beards (please don’t throw cups at me at the next meeting, I tried really hard to find a different word) on the other. Don’t be afraid to ask for a different perspective. We ask opinions on what we should wear, watch and read; why don’t we do it when people’s lives are on the line.

            When I submitted this to Helga, I apparently did not submit the whole thing, and in her email back she made an interesting comment. She stated, “Don was a great guy–but also a human being, like the rest of us (and that includes those criminal defense clients).” There isn’t a statement that I could make that would better sum up this article.

            I will say this though. If you haven’t gone to NCDC, you owe it to yourself (no matter how long you have been practicing) to go. If you haven’t contributed to the NCDC scholarship to let a “newbie” head down there to carry on this tradition of protecting the rights of others, I encourage you to do so. NCDC changed my life, my career and my passion for what I do, even on the days when I am totally beat down. Because remember, prosecutors deal in boring, we deal in human beings, and at the end of the day, I’m a total addict.

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