TO WIT: I NEVER PROMISED YOU A PLEA BARGAIN
I am not a criminal lawyer, nor do I have any desire to be one. Notwithstanding my preference for a civil existence however, I have in the past been caught up in the dragnet of the President Judge on those occasions when he needed a warm body to preserve some semblance of due process eo instanter. Feeling all too much like fodder for the cannon of incompetent counsel, I am thus far most fortunate that the poor souls whose lots have been so recklessly hurled in my direction take a beneficent pleasure in showing me the ropes. One such client, a certain Guiseppe Recidivisti, patted me gently on the shoulder following his conviction and allowed as how he was kind of looking forward to seeing his old friends anyway.
For the better part of my career though, I have successfully resisted any foolish impulse to participate in the dispensation of criminal justice. I have seen far too many comrades-in-lex fall in defense of the oppressed, the downtrodden and the guilty. Recently for example, a long time colleague of mine was obliged to take an extended vacation. He had been slogging it out in the pits for so long on behalf of clients who consider the cigarette to be legal tender, he has taken to answering “guilty” to any question put to him which required an honest answer. He was finally propelled beyond the pale by a six-week trial in successful defense of a client charged with counterfeiting. The only flaw in his whole case, he later recalled, was that he accepted his entire fee in tens and twenties.
Although I suspected early on in my career that criminal law was not exactly my forte, I nevertheless did a fair amount of indigent criminal appointment work. As was and is my wont, I took on each client with the greatest of convictions, and that was usually just what each got for my efforts. I assuaged my nagging self-doubts with the notion that any person who could simultaneously attain the status of indigent and criminal could also accept a called third strike with philosophical resignation. It was only after the local Chiefs of Police Association nominated me for the Safe Streets Award that I steered my professional course for calmer waters.
The practice of criminal law today is a highly specialized field. The criminal lawyer must learn to cope with unusual problems far beyond the unavoidable proximity to elected officials, for there confronts him a bewildering array of procedural anomalies unique to those who fact the Commonwealth across the “v”. If for instance a client has an alibi, the criminal lawyer is obliged to so inform the prosecution in advance of trial. The civil practitioner is not bound by such foolish concepts of fair play, thus enabling his client to make up an alibi at the last minute.
The criminal lawyer must further contend with the rules concerning speedy trial, the “majestic instancy” of criminal due process. While this judicial tether of 180 days within which to prepare for trial may burden the busy practitioner, it at least has the virtue of avoiding “overdue process”. It further enables the penal institutions throughout the Commonwealth to schedule their admissions with some degree of certainty six months in advance.
Until quite recently the civil practitioner had no such arbitrary time limitation imposed upon his caseload. He or she was thus able to pursue for the client a more deliberate justice, to leave no stone of discovery unturned, to forge ahead with craftsman-like diligence, and to bury the dogs so far down the trial list, Holmes himself couldn’t find them, Sherlock or Oliver Wendell.
Now of course civil practitioners are confronted with a comparable rule, the 240 day rule, at the expiration of which time one is obliged to file what has euphemistically been styled THE CERTIFICATE OF READINESS, stating quite simply and with a straight fact that one is actually ready to try the case. While I welcome this innovative new concept, I had hoped the rule would have mandated a statement more in keeping with the hard truth of litigation. I suspect however that the dignity of the profession might have been needlessly imperiled by the more appropriate CERTIFICATE OF READY AS I’LL EVER BE.
Finally, should my young criminal colleagues desire some advice in serving those for whom the price of liberty is eternal bail, I would like to offer, with apologies to Gilbert and Sullivan, a modest but exceedingly clever little ditty which could have come from the Pirates of Penzance if its authors had been more familiar with a common plight of the criminal lawyer:
When a felon’s disengaged from his employment,
and leaves it to his lawyer to suppress
the burglar tools from which he’s had enjoyment,
but now could bring him five years, more or less,
our instincts we must somehow learn to smother.
The State’s swift sword it is our task to blunt,
From those whose fate depends upon our labor,
We mustn’t fail to get the feet in front.
© 1978, 1980 – S. Sponte, Esq.