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Paper Title

-- By CeciliaWang - 22 Feb 2010

The Question that Sparked this Paper

An interviewer posed to me this hypothetical: "How will you handle your work in a case you believe is wrongfully prosecuted? For example, a domestic violence victim who struck back at her abuser." I cannot recall my answer as well as the question, though I remember declaring my faith in the integrity of my assistant district attorneys, in the high standard of evidence and persuasion held by the criminal justice system, and the right of all to representation. The question bothered me because soon after leaving I substituted a more likely, and less sympathetic, hypothetical involving a kid getting charged with a litany of offenses on a relatively minor incident, facing several years or life for stealing a slice of pizza.

The Superhero Ideal

As a kid, I did not get to watch a much American superhero cartoons as I might have liked because of Chinese school on Saturday mornings, but I did love the superheroes enough for the idea that the world is made up of heroes and villains to stick. The world of superheroes the evidence is always convincing and heroes never have to struggle to convict against a high standard of proof or have to defend their evidence gathering methods and warn villains against self-crimination. The confessions they obtain are always admissible, and in the superhero world we in Southern California would not have been bewildered by the acquittal of O.J. Simpson. The villain escapes mode of injustice, in comparison, was far more prevalent in real life. The New York and Los Angeles Times newspapers probably publish as many stories about successful convictions as about acquittals and successful appeals. Injustice is simply more memorable than justice. I believe that is because we inherently believe in justice, so when justice is done - a murderer is put away, a heinous criminal punished and victims vindicated - we take the result for granted as the due course of nature. The incidents of injustice are the ones that deeply jar our preferred view of the world and take us farther from what we want the world to be. The convictions are reported without a shadow of a doubt; the evidence is always presented overwhelming.

Blame Politics?

Fear is justified.

Few are those who have not suffered an unpunished crime or fear of law enforcement's failure to capture neighborhood criminals. My family's car windows have been smashed while parked during daylight hours in downtown Santa Monica. I know of students who have been mugged and worse by standard-description teenagers who have never been charged for those particular crimes, and I know of a group of youths who were caught but released because the victim just did not want to deal with the process and the fear of retaliation. She would have participated if they had sentenced to more than a couple months maximum. Charges would have been pressed had NY Penal Law called for minimum of two years for taking her wallet; they would have been safely locked up until her graduation.

The solution to public fear is to broaden the reach of criminal statutes.

Citizens can be protected by a strong, visible and alert police force; by a healthy social, educational and economic structure; and by locking away all the dangerous elements. The last is perhaps the easiest. Sentences can be increased for crimes that are easily proved and likely linked to other crimes (such as drug laws), and legislatures can broaden the reach of criminal statutes. Those actions have been taken.

Law students becoming law enforcers, integrity and sense of justice

Many will face the same pressures of competition and prestige

Success as defined in the law school can be dangerous when carried past graduation. Law school encourages pursuit of status symbols. What drives law students towards the pursuit of the best law firms, what drives them towards the pursuit of the most prestigious U.S. and district attorney offices to practice in, will push lawyers towards the pursuit of whatever status symbols prosecutors have among themselves: highest conviction rates, the highest sentences; the most publicized and challenging cases. I was shocked to see how brief are the descriptions of crimes in the New York Penal Law. The vagueness of statutes allows for creative, expansive application. An ambitious lawyer can do so much injustice, by choosing to charge a felony instead of a misdemeanor, by plea bargaining a weak case, as the result of overzealous exercise of decent, law-abiding citizens’ right to security.

"Those young ADAs, they think they are God"

An attorney at the Legal Aid Society made that accusation. Law school is a disempowering experience, or maybe just first year, with severely limited freedom of choice and anonymized individuals, set towards one competitive goal like racing dogs. At the same time, because of the impossibility of specialization at this level of learning, I find myself easily replaceable. Even work for voluntary pro bono projects showcase how useless a first year student is; the work usually involves helping someone fill out government forms and presenting an obvious case against an absent adversary. It must be exhilarating to be a first-year attorney with the power to charge and prosecute and to win. Every client deserves zealous advocacy. For most lawyers the client is an easily identifiable individual or entity whose goals are so clearly defined that the lawyer’s work is bound by their boundaries. Not so much the lawyer whose client is the state. They are supervised. They are in many ways constrained. They also have freedoms and powers over the indigent, over people who for various reasons walked into the criminal justice web, that only they could control.