I posted a blog yesterday about a smear campaign against #JudgeJaneKelly, nominee to the U.S. Supreme Court, who was a federal public defender before she came to the bench of a federal appellate judge in the 8th Circuit.
I also covered in that blog the filibustering of President Obama's nomination in 2014 of a civil rights attorney who was blocked from taking a position of chief of Civil Rights Division in the U.S. Department of Justice because he was too good of a civil rights and criminal defense attorney.
One thing needs to be pointed out that is overlooked when a criminal defense attorney is running for or being nominated for a public office - an equally rare occasion. Unlike a prosecutor who can boast convictions (even wrongful convictions, even convictions on coerced pleas and while using false and fabricated evidence) as the prosecutor's "record" of "fighting crime" when running for or being nominated for the bench.
As my professors and mentors always taught me, a criminal defense attorneys does not "win" the case - the prosecution loses, because the burden to put the case together, and the burden of proof are entirely upon the prosecution.
Criminal cases rarely come to trial.
Most of them are resolved through either plea bargains, dismissals, or resolutions reducing a crime to a non-crime.
I would like to talk about the latter.
When a criminal charge is dismissed before trial, that is a big win for the defense, but in that case, the criminal case disappears, the record is sealed, and the criminal defense attorney does not have a right to brag about the case.
I clearly remember how surprised (at first) I was when I saw that clients for whom my husband, a criminal defense attorney at the time, won dismissals of cases, sometimes would not recognize my husband in the street, walk right by him.
And then some of them called him, apologized and explained that they did not want other people to know that they know my husband, a leading criminal defense attorney in the area.
So, criminal defense attorneys have no bragging rights about dismissed cases, even though such dismissals before trial saved the client money and especially the stress and heartache of the trial, the stress of possible conviction at trial and the uncertainty and expense of the appeal.
When a criminal charge is reduced to a non-criminal charge, the case is similarly sealed, and thus, again, an attorney loses bragging rights for the attorney's "win", as opposed to a prosecutor.
In New York, such a situation will arise if, for example, a charge for a misdemeanor or a felony (a crime) is reduced to a violation (not a crime), or if an eligible young defendant is given a youthful offender (YO) status.
Often criminal defense attorneys also represent people in child abuse/neglect cases and in domestic violence/"family offense" cases in Family Court.
Wins in such cases are also sealed, as all Family Court records, and there are, similarly, no bragging rights when such an attorney would consider running or being nominated for a high public office.
I just want the public to be aware that when a criminal defense/family court defense attorney is running for office, most of his or her wins and accomplishments may not be revealed to the public simply because they are sealed.
Thus, the balance is between sealed accomplishments of criminal defense attorneys and known record of convictions of prosecutors, likely created by drumming up coerced pleas.
The public needs to be aware of this imbalance, especially where the majority of judges in this country came from prosecutors, and where judicial misconduct may be the natural continuation of a prosecutor's mentality - just charge and intimidate, and you will be immune for anything false and criminal you are doing during the trial.
Unlike a prosecutor, a criminal defense attorney is not given as many resources, must fight against tremendous odds for his or her client, including the unfair publicity that the police and prosecution often create before the case is heard by the court, and must be a quick and effective thinker.
For a prosecutor, given that most judges are former prosecutors, too, a victory is often presumed, and a loss is usually the result of either the prosecutor's or the police's extremely sloppy work, or the result of an outstanding work of the criminal defense attorneys where even a judge cannot help but rule against the prosecutor despite the judge's usual bias against the defense.
I think, we need more of criminal defense attorneys in public office, not less, and I think, we need to be extremely alert to smear campaigns against criminal defense attorneys who run for public office - like the one going on now against the U.S. Supreme Court nominee #JudgeJaneKelly.
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