Wednesday, September 7, 2022

Below is the text of a toast to the Constitution that I gave at a meeting earlier this year of the North Texas Federal Criminal Law Inn of Court of which I am a founding member.

Toast to the Constitution 

         About a decade ago, at a small dinner party at a neighbor’s house, I was chatting with one of the dinner guests I knew about one of my pending cases. Another guest across the table whom I didn’t know listened in for a few minutes and then interrupted. He asked me “what do you do?” I answered, “I’m a criminal defense lawyer.” There was silence for a beat and then he asked, “how do you look at yourself in the mirror every day? How can you sleep at night?” I was a little taken aback but I answered the way I always do when people ask me some variation of “how can you do what you do” -- I said “my job is in the Constitution and every single day that I do my job, I’m defending the Constitution.” He was unimpressed. By this point, the entire table was listening to the exchange. He stared back at me for a second. Then, in a loud combative voice, he announced “people like you make me want to vomit” and turned his back to me.

I was reminded of that unpleasant dinner exchange recently as I watched bits and pieces of now Justice Ketanji Brown Jacksons’s confirmation hearings. I watched Senators call her an apologist for pedophiles and imply that she’s sympathetic to terrorists because of her work on Guantanamo Bay cases. I saw Senators of the United States denigrate the incredibly meaningful work done by public defenders and make clear that in their view, anyone who does criminal defense work at all is somehow morally bankrupt and thus unqualified to be on the highest court in the land.

It's one thing for Hollywood to portray us as greedy, or broken, or incompetent, or corrupt. It’s another for sitting senators who ought to understand the Constitution and the role we play in defending it to say those things. Frankly, if anyone is morally bankrupt, it’s someone who would purposefully misrepresent and denigrate the incredibly difficult work that public defenders do just to score political points.

But just as I did at that dinner party, as I listened to Justice Brown Jackson’s confirmation hearings, I reminded myself that the Constitution recognizes the critical importance of criminal defense lawyers to the functioning of the Republic, and indeed, to its very viability. The Constitution recognizes the tripartite nature of a fair criminal justice system. Prosecutors ensure that the laws are enforced. Judges dispense consequences with dispassion. And criminal defenders ensure that the proceedings are fair to the accused. It’s a three-legged stool, and the weakening of one leg of the stool imperils the entire structure.

And let’s not kid ourselves. This constant drumbeat of negativity about defense lawyers absolutely weakens one leg of that stool and puts the entire structure at risk of tipping over. Each of us who cares about maintaining the structural soundness of our system of justice has an obligation to fight back against those stereotypes and to remind the public (and apparently our Senators) about the critical role of criminal defense lawyers to the functioning of the criminal justice system.

We criminal defense lawyers try to defend ourselves against these attacks, as I did at that dinner party, but of course we’re morally bankrupt, so who’s going to listen to us? But prosecutors and judges -- you who are held in the high regard that we are not -- I’d ask that you use a little of your political capital to back us up. At your own dinner parties, and soccer games, and on your social media, I ask that you stand up for the Constitutional importance of the work that we do. That you reiterate just how important it is to the continued viability of this American experiment that the three-legged justice stool remain balanced and strong.

A final postscript -- about a year after that unpleasant dinner party, my vitriolic dinner companion was indicted for theft – he had been stealing jewelry from friends’ homes at dinner parties and pawning it – I kid you not. As is his Constitutional right, he found a defense lawyer who apparently did not want make him want to vomit. But it wasn’t me.

To the Constitution.