First Let’s Kill All The Lawyers, But Start With Counsel For The Defense, Part I

THE OPEN MIND
Host: Richard D. Heffner
Guest: Jack Litman, Esq.
Title: “First Let’s Kill All The Lawyers …
But Start with Counsel for the Defense”, Part I
VTR: 12/14/99

I’m Richard Heffner, your host on The Open Mind. And my guest today is one of the criminal defense bars best and wisest practitioners. Certainly he is one of its most successful. For early on Jack Litman was a Manhattan Assistant District Attorney, then prosecuted the accused as vigorously as he defends them now. Always relishing the attorney’s obligation to give his client … the State or the accused his every best effort. To use his psychological insights, he oratorical skills, his ability to clarify, or perhaps at times to obfuscate as well as he can in order to prevail in our adversarial system.

But many Americans are made uneasy by defense attorneys as they do their darndest to serve their clients, to save their necks if you will, when most of us want to ring them, quite literally. Which must often make Jack Litman and his fellow criminal defense attorneys, the men and the women, you want to hate. Hence, “first kill all the lawyers”.

And again, this must make my guest awfully uncomfortable at times, or that’s my assumption, Jack. Does it or doesn’t it?

LITMAN: Well, at times it does. But I think all of us who are in the criminal defense bar have to accept our role, really, as the lightening rod to deflect all of the slings and arrows that our clients will otherwise suffer on to ourselves. It is a very, very important, and we think a very ennobling role to stand between the individual who’s arrayed against the forces of the State and to make sure that the State accurately and fairly and justly convicts those who are guilty and otherwise makes sure that those who are innocent are not convicted.

HEFFNER: What’s your basic assumption? That the State accuses many, many, many more than are guilty?

LITMAN: Indeed, that is the case. You can talk to people who have studied the problem. Some people say it’s as low as three to four percent. Others raise the level to close to ten to fifteen percent who are completely innocent. Now that number, if you multiply or just figure it … in New York in a year we arrest 200,000 people. That’s an enormous number of human beings who are completely innocent. And that, of course, does not deal with the issue of overcharging. People who are charged, for example, with serious robberies that may be at most larcenies. People who are charged with intentional murders, that are at most unintentional manslaughters. So there is a lot to be said for the factual accuracy and the issue that involves factual accuracy in our criminal justice system. But quite apart from that we need criminal defense lawyers to stand up to the State to make sure that there is no political agenda, social agenda, or otherwise in using the criminal justice system to convict those who shouldn’t be convicted. And if we do not have a vigorous criminal defense lawyer in every case, even where a person is 100% guilty, making sure the State has its feet held to the fire, then we do run the risk that in more and more cases, people who are not guilty, people who should not be punished, will in fact, be.

HEFFNER: Now the percentage that you used before. What was that again?

LITMAN: Some people think it’s as low as three to five percent of the people who are arrested and prosecuted are completely innocent. Some people raise the bar to close to ten to fifteen percent.

HEFFNER: And what percentage will stand convicted?

LITMAN: Oh, of those numbers? That number. I mean, for example …

HEFFNER: Are you saying those prosecuted and convicted?

LITMAN: Richard … look, look … let’s talk about some current facts … of course, you cannot extrapolate this anecdote into exactly what happens throughout the United States. But let’s talk about the city of Chicago. And the State of Illinois. Now this not some little hick town in America. This is an extraordinarily sophisticated metropolis of the world. Let alone of the United States. And in the last ten or twelve years, or twenty years in Illinois since they’ve had the death penalty, for example, reinstated, there have been 22 convictions for the death penalty. And since those convictions, 11 of those cases … 11 … more than 11 people because in some cases there were co-defendants, have been totally exonerated. And found to be not only “not guilty”, that is there’s no proof beyond a reasonable doubt. But totally innocent, totally innocent. Fifty percent of the people who were placed on death row, and thank God it was discovered before they were executed, a full 50% in death penalty cases … cases where you would assume there would be the most scrutiny … 50%.

HEFFNER: Alright, now I have to ask you to explain that as best you can.

LITMAN: Well, it’s hard to say, and it really is hard to explain. I mean I am shocked, as should be the rest of the United States. And thank God there is an enterprising Professor of Journalism out at Northwestern who deserves a lot of the credit because each year he gets students involved in the Journalism School … this is not even in a law school … who go out and re-investigate these cases. How does one explain it? Well, in capital cases, where the crimes are lurid and horrific perhaps the law enforcement people, the police usually, the prosecutors on occasion, feel an enormous pressure to bring someone to justice. And on occasion, and in the example in Illinois, that’s 50%, that’s more than just on occasion, obviously corners are cut and they are cut so severely that one can no longer recognize the polygon, and what we have at the end are innocent people who are put on death row. There was a Commission really just recently established in Illinois to try to answer the very question you asked. “How is it possible”, and many of these cases are from the city of Chicago, Cook County.

HEFFNER: It is your assumption that with that same kind of academic presence and those same kinds of students to investigate, to look into these cases, you could find the same thing in other major centers of American law?

LITMAN: Well, I can’t say and I should … I mean I would pray that it’s nowhere near 50%. That would be such a calamity that the whole system of criminal justice would be exposed as a fraud. And I certainly don’t say that’s the case. But if it were, if these type of analysis existed down in areas where both Federal and State funding has been cut down in the South, for example, where some lawyers are drafted to handle capital cases, who are just out of law school and have never handled cases before, then I dare say that you may find certainly other instances. Let us all hope and pray that it is nowhere near that statistic.

HEFFNER: Are there any threads running through these cases in Chicago that you can identify? Inadequate representation? Inadequate legal representation on the part of those who were convicted?

LITMAN: I’m sure that in, in part that is a fact. But I think that the main elements are … look, if you’re sitting on a jury and you’re faced with the strangulation, rape murder of a child … everyone on the jury wants to convict the person who did. Whether or not they want to send that person to the, you know, to the electric chair, or lethal injection, whatever the mode of capital punishment happens to be in the State of Illinois … there is a desire to punish for something so terrible. And it just seems to be that the police in many instances. I mean they just had a case out there where they tried several of the police officers, and indeed, a couple of the prosecutors for completely making up evidence. I mean this is not something that has existed in total isolation. But let us hope that in fact that this is an aberration what happened in Illinois, but it’s hard to say that that’s the case.

HEFFNER: Jack, you’re beating around the bush. You’re being very polite, and you’re being very circumspect. Certainly you can’t believe … well, maybe, maybe it is true, this is Chicago … but that’s the question I’m asking … are we talking about Chicago, or do you, as a defense attorney who gets around a great deal in this country, believe that we could uncover something like that, elsewhere.

LITMAN: Well, we have. I mean there is a wonderful project run by Peter Neufeld and Barry Scheck called “The Innocence Project”, out of Cardozo Law School that uses forensic science, and specifically DNA … and they have taken sixty to seventy people off of death row throughout the country because the results of the DNA analysis which didn’t exist at the time of the conviction showed that these people are completely innocent. What I can tell you is that this unfortunately exists throughout the United States, which is why we need vigorous criminal defense lawyers. And think prosecutors, and good prosecutors would be the first to tell you that they want good and vigorous criminal defense lawyers to represent the accused. To give society an assurance that the people that we are putting in jail, and we are putting in jail for extraordinary terms, and we have more people in jail per capita in this country than any country in the world, let alone the civilized world. And we want to make sure that we’re doing the right thing. So I can’t tell you again, to repeat myself, that it is anywhere near the level of 50%, but I dare say that the numbers are a lot higher than some people believe and it’s something we must protect against.

HEFFNER: What about the quality of the criminal bar, as it’s changed over the years.

LITMAN: That’s very difficult to say. There are many, many people, we’ve had fortunately an influx of women in the criminal defense bar that we haven’t had before. As is true with the prosecution, which has expanded the number of people who are available because in many states, and New York unfortunately has this problem as well … the Chief Judge of the our Court of Appeals, Judith Kaye, has just started a commission … not just, it’s happened a while ago, to look into the rates that are paid to lawyers, who represent people in felony cases. They are getting paid $25 an hour for out of court work and $40 an hour for in-court work, and you can’t run a legal practice doing that. And, as a result, some people claim, and I certainly haven’t surveyed it, that some of the lawyers that are doing that work aren’t up to the quality that they should be. Of course, where can you find a lawyer who can actually practice, have a law office, have partners and associates and people who can help out, I mean that person’s attention can’t just be directed to one case … getting paid at those rates. So, it is very difficult because there’s been a cut in funding, by the States in many, many instances that has to be reversed, if we expect to have it because most of the people who are charged with criminality are poor and cannot afford attorneys.

HEFFNER: So you’re talking about court-appointed representatives of the accused.

LITMAN: Well, many, many … most of the people who are accused of crime in the United States are poor. That’s a reality of life.

HEFFNER: And are represented by court-appointed attorneys?

LITMAN: And are represented either by court-appointed attorneys, or by funded organizations like Legal Aid Society and public defender organizations. But the people who represent, who are attorneys, who represent people and are court-appointed, in many instances are getting paid, such ridiculously low rates that it is impossible, some say, to attract the best lawyers to do that kind of work if nobody can afford to do it. You can’t pay rent in the City of New York, hire a secretary in the City of New York and do what else you want to do getting paid $25 an hour for work you do out of court.

HEFFNER: When the late Chief Justice Warren Burger talked about representation, he was very concerned about the level of legal representation generally, wasn’t he, it wasn’t just the pro bono business. What was your own fix on the Chief Justice’s attitude toward legal representation in this country?

LITMAN: Well, he made those remarks some 30 years ago. I think that as time has gone on … at least among younger lawyers, and certainly a perspective that has been promoted at many of the important law schools in the United States, the stigma of being a criminal defense attorney has lessened, however it’s being portrayed in the media. So that people view it as an honorable and an important and as I’ve said before, an ennobling role that a lawyer can play in society.

HEFFNER: What was that “aside” about the media?

LITMAN: What was that “aside” about the media?

HEFFNER: Yes, come on.

LITMAN: Well, my goodness, you just started the program by saying, “let’s kill all the lawyers”, and the media looks at criminal defense lawyers and says, “let’s strangle them”. By the way, as an “aside”, Shakespeare said, “Let’s kill all the lawyers” because in the sense in which he says that, or in which one of the characters says it, there is plot afoot to create a conspiracy of corruption. And the idea is you’d better kill the lawyers because if the lawyers are around they are going to uncover the plot and make sure that justice is done. So if want to make sure there is no justice, you kill all the lawyers. You don’t’ kill all the lawyers in order to make sure they don’t obfuscate …

HEFFNER: Now, Jack …

LITMAN: … you kill all the lawyers in order to make sure that justice is not done.

HEFFNER: Do you think that with a lawyer son, as I have, that I would really mean “first kill all the lawyers”? You know that I’m not unsympathetic. But I’m interested in you’re saying “the media”. Come on, do you think this is an attitude … forget about Shakespeare, that this is an attitude that is prevalent in our times. After all, lawyers don’t rank very high when we begin to poll the American people to see …
LITMAN: And I do think it has something to do with media’s representation of lawyers and typical television shows. Now, historically, if you were to go back 30 years and ask people what they thought about lawyers, and specifically lawyers who practice in the area of criminal law, the heroes would be criminal defense lawyers. If you had asked the average American 30 years ago, maybe even today, “who are the great people who practice criminal defense law, both for the prosecution and the defense, who are your heroes in that regard. Now maybe they could name some prosecutors, perhaps. Or at least say, “Oh, that guy on Law and Order on television”, or on one of the other shows that proliferate on the screen. But if you asked 30 years ago, everyone would basically tell you Clarence Darrow. In fact, if you had asked 30 years ago no one could give you the name of a prosecutor. No one knew a prosecutor. Clarence Darrow, for whatever faults one may ascribe to him, was viewed as a giant, an important man, a man who spoke against capital punishment when it was rife throughout the United States. A man who spoke about the importance of helping the downtrodden. A man who spoke to the fact that the criminal justice system shouldn’t be used as a supercop, it should be used to fairly adjudicate cases. A man who represented people who we forget were completely guilty. And yet did a good and hard and earnest job. He was viewed as a hero.

HEFFNER: Then what happened?

LITMAN: The times have changed. What happened … I leave that to you …

HEFFNER: No, no, no, no.

LITMAN: I mean, but Richard you have much better insight into the media than I do. But perhaps it’s as simple as if you only have a half an hour in which to explicate a difficult problem, you don’t deal with issues like burden of proof, which are very important, as I said before … to hold the State’s feet to the fire in order to make sure that you do the right thing in all the other cases, in addition to this case. If you have a half an hour you have to show “is the guy guilty or not guilty before the second commercial”. And if you have a lawyer who stands in the face of something as simple as “did he do it or didn’t he do it” when they show you in the opening two lines that he just shot somebody three times, that lawyer, by necessity is going to look … like the bad guy. As an obfuscator at best.

HEFFNER: You know, that’s what I tell my students … that impact of the media, and I describe it very much that way. But I also know that that can carry just so far, Jack, that when something else has happened. And I don’t know whether it’s something that’s happened in the bar or whether this is a reflection of the level of crime in our country, which has gone down the last couple of years. But when you were here almost ten years ago, and we spoke about this, you were here at the time when the level of crime in our lives and concern about crime …

LITMAN: Was very high.

HEFFNER: … was enormous.

LITMAN: Enormous.

HEFFNER: Okay. So do you think that that is what had happened?

LITMAN: Oh, I am sure you are correct. I didn’t certainly mean to say that the media has the overarching affect on this. Clearly … if the level of crime is such that people perceive their lives at risk, when they go to work, when they walk in the streets, when they go about their daily lives, if they cannot even feel safe in what they normally do, then anyone who is associated with helping the people who are charged with committing the crimes has to be viewed negatively. And I would agree with that. As the level of crime comes down, then the notion of the criminal defense lawyers obligation, the notion of what the importance is of the Bill of Rights elevates. It’s only when we have too much crime that people say, “my goodness, let’s get rid of the search and seizure and privacy protection. Let’s get rid of the defendant has a right to silence. Put him on the witness stand, let’s see what he has to say”. Then we tend to lose sight of it because of the overwhelming fear. Hopefully now, as crime has come down, and hopefully will continue to go down, then people will appreciate more what a criminal defense lawyer does and hopefully appreciate more what’s critical to all of us, which is the Bill of Rights and our Constitution.

HEFFNER: But you’re not going to make a bet on that, I’ll bet.

LITMAN: Well, it’s hard to make a bet on it because given our history, it is hard to imagine that the level of crime is going to come down, for example, to what it is in other civilized societies, where the notion of aggression and violence is so foreign to their normal way of life that their level of criminality is so much less than it is here.

HEFFNER: Which leads me to ask you about respect for defense attorneys, defense procedures, etc. in other countries. And you have to tell me whether we’re just way down on the list in terms of acceptance of the defense attorney’s role.

LITMAN: Well, it’s hard to generalize as to other countries, as a general proposition. First of all one of the reasons that the defense attorney in America is under such scrutiny and therefore gets, on occasion, very much negative publicity is that he or she is very much out front and center. The role of the criminal defense attorney in America is a very pro-active role. I mean we are asked, after all, to help gather the facts on behalf of the defense. And we are very active in the courtroom, at least in those cases that get tried, which is a very small percentage. Most as you know are resolved either in dismissals or guilty please. But in those cases that are tried, which is what American understands as the American criminal justice system. The criminal defense attorney is extraordinarily active. In most of the other countries in the world which do not share the adversarial system of criminal justice, the criminal defense attorney plays a far less active role. And in many places is hardly existent at all. Even in the country as civilized as France, the criminal defense attorney does very little. She doesn’t gather the evidence, judges do. She doesn’t even interview witnesses before the trial. That’s not even permitted. And in the courtroom she doesn’t even ask any question other than at the sufferance of one of the judges and there and then only rarely. So the role that is played by criminal defense lawyers in other countries is so minimized in comparison to the out-front, pro-active role played in America that it doesn’t create the impression of being the lightening rod which is what we actually are here in America.

HEFFNER: With what result in terms of guilt or innocence, in terms of justice done?

LITMAN: Well, now that’s a very difficult proposition. The two are not synonymous … guilt or innocence and justice done. If you look at many countries in the world, for example, they do not have jury system. So they do not deliberately select the ordinary human being who, together with 11 other fellow members of society reflects not just a, a trier of facts, but also comes forth and represents a conscience of the community. That doesn’t exist in most countries throughout the world. So in most countries throughout the world you have what is called professional judges. Judges who routinely handle case after case after case. And the level of guilt, or I should say, verdicts of guilt that occur in those places is higher than it is in the United States. Far higher. But that doesn’t necessarily mean that more justice is done.

HEFFNER: … justice is done.

LITMAN: But you get more guilty verdicts.

HEFFNER: Now, it may not mean, as you suggest that more justice is done. What does it mean, however. What does it mean in terms of the good life. Of a good society?

LITMAN: Well, you see the answer to that question I think comes back to “what do you expect of the criminal justice system?” If you think the criminal justice system is there as a bulwark against this … the evil forces of criminality and that the criminal justice system should be the primary defense to criminality. Then I think we’re never going to win and we become more and more oppressive, with time. There are a million other things, and maybe I’m just the old dyed-in-the-wood, knee jerk liberal from the sixties who believes that society should do a whole variety of other things to make sure that we don’t have people engaged in aggressive, violent and otherwise criminal behavior. The criminal justice system is there properly to adjudicate the guilt or innocence of people. The fairly adjudicate the level of guilt and fairly render punishment, if punishment is necessary. It is not there to reform society and to deal with the social problems which create criminality. As I’ve … as you and I have discussed many, many times, the reality is that your child and my child will never commit a violent act, not because in New York the statute says, “if you kill another person you’re going to go to jail for the rest of your life. And if you do it so maliciously and so wantonly you may actually get capital punishment. That’s not what stops most people from committing crimes. They are brought up in a certain way. They are viewed to a certain aspect of life. They do not view violence as a way to solve problems. It is only when we ask too much from the criminal justice system, when we ask judges to be supercops, that we run into the problems of diminishment of civil liberties and at the same time a failed expectation that we create in society that if we just put more people in jail and turned the key, crime is going to disappear.

HEFFNER: I didn’t know what you mean about ask more of … too much of judges …

LITMAN: Well, we can …

HEFFNER: What less can you ask of judges?

LITMAN: Well, we can ask judges to do their job properly without worrying about the political slings and arrows of elected politicians who are looking for quick fixes. “How they got this guy out on bail, this is an outrage.” This guy is going to go out and do this, that and the other thing, and they don’t understand what the purpose of bail is. How can you get this man only 30 years in jail and not put him in jail for the rest of his life. This is an outrage. That judge ought to be thrown off the bench. Politicians who are looking for quick fixes to solve criminal problems, put judges under terrific scrutiny. They only seem to criticize them when they give quote/unquote “liberal” decisions, rather than applauding them for doing the work they do on a daily basis with a very, very heavy case load. When you create that kind of perception in the public, then judges are dispensing not justice, but they’re coddling the criminals.

HEFFNER: Okay. Okay, Jack, now that I’ve got you all riled up, we’ve reached the end of the program. But if you stay where you are we’ll do another one. Okay?

LITMAN: If you wish.

HEFFNER: Thank you, Jack Litman. And thanks, too, to you in the audience. I hope you join us again next time. If you would like a transcript of today’s program, please send four dollars in check or money order to: The Open Mind, P. O. Box 7977, F.D.R. Station, New York, New York 10150

Meanwhile, as an old friend used to say, “Good night and good luck”.

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.