Criminal Law: Quo Vadis?

June 22, 2013 Criminal Defense

Is it time to start lamentations on the death of the classic tough-as-nails criminal lawyer? I read in the New York Times that Gerry Shargel closed down his practice to join the white shoe law firm of Winston & Strawn. Shargel made his name representing the likes of John Gotti and Salvatore Gravano (Can you imagine Sammy the Bull traipsing down their marble hallways?) and Oscar S. Wyatt Jr., the Texas oilman who paid kickbacks Saddam for Iraqi oil contracts. Winston & Strawn has more than 900 lawyers and usually only hires former federal prosecutors. Its chairman is Dan K. Webb, the former United States Attorney in Chicago (who is an excellent trial lawyer with many victories in tough cases).

One of the articles noted: “Winston & Strawn’s gross revenue rose 0.1 percent to $755 million in 2012… The firm’s profits per partner increased 3.5 percent, to $1.49 million from 2011, and its revenue per lawyer increased by nearly 10 percent, to $895,000. Meanwhile, the firm trimmed its overall headcount by nearly 10 percent in 2012.” This sounds more like a corporation more than a law firm. Criminal law firms don’t report their “gross revenues” or “revenue per partner.” Just like the advice we give our clients – we remain silent. We don’t even give out the names of our clients.

So, is Shargel’s departure a cop out? A loss of confidence? An abandonment of principle? Have we forgotten why we got into this business: Fighting for people; Defending Rights; Willing to battle no matter the odds? Where will the Don Quixotes come from? The disruptors, the agitators, the mavericks? Is this the death of the independent criminal lawyer willing to take on all-comers?

Criminal lawyers should be like Raymond Chandler’s private detective:

“…down these mean streets a man must go who is not himself mean, who is neither tarnished nor afraid. He is the hero; he is everything. He must be a complete man and a common man and yet an unusual man. He must be, to use a rather weathered phrase, a man of honor—by instinct, by inevitability, without thought of it, and certainly without saying it. He must be the best man in his world and a good enough man for any world….  He will take no man’s money dishonestly and no man’s insolence without a due and dispassionate revenge. He is a lonely man and his pride is that you will treat him as a proud man or be very sorry you ever saw him.” Is it just coincidence that this comes at the same time we are abandoning trial by jury?  “The American jury system is dying. It is dying faster in the federal courts than in state courts. It is dying faster on the civil side than that on the criminal side, but it is dying.” William G. Young, U.S. District Judge for the District of Mass., Address at the Florida Bar’s Annual Convention (June 28,2007).

And the evidence supports his claim – The Bureau of Justice Statistics of the Department of Justice reports that in 2005, 96.1% of federal criminal cases were resolved by way of a plea bargain and the number of cases going to trial has dropped by 70%. The “modern” criminal justice system relies on plea deals not trials. 94% of state convictions are pleas and the Supreme Court notes “is for the most part a system of pleas, not a system of trials.” Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012); Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012).

And the reason for this is clear – criminal lawyers are afraid of going to trial. The Sentencing  Guidelines, with the draconian sentences called  for in federal criminal cases, minimum mandatories, and the abolition of parole, intimidate most lawyers and their clients from risking a trial and instead make the best deal they can. Today, the lawyer’s “ability to persuade the judge or the jury is . . . far less important than his ability to persuade the prosecutor” during plea negotiations. United States v. Fernandez, 2000 WL 534449 (S.D.N.Y. May 3, 2000) at *1.

And what will be the future of the criminal courts if we don’t demand trials for our clients? Once the world has shifted on its axis it will never come back. Who will aggressively defend the criminal accused? The criminal justice system is designed to keep the conveyor belt from arrest to prison running smoothly. Are we now the grease instead of the wrench?

Excellent advocacy is the hallmark of the great trial lawyer. Are we losing it? Are we losing our trial skills? Criminal lawyers today are more fixated selecting the right deal instead of the right jury. Young criminal lawyers are taught the rush to the United States Attorney’s Office rather than the rush of arguing to a jury.

But perhaps all is not lost. F. Lee Bailey, on his 80th birthday, was re-admitted to practice in the state of Maine. I called to congratulate him and found out he already has a criminal case set for trial. Bailey is a grizzled old-school criminal lawyer: Brilliant yet deeply flawed, his private life a shambles, always short of money no matter how high the fees, and anathema to the organized bar which tried to destroy him. But phoenix-like he has arisen.

The criminal trial will always be the ultimate thrill. The big case chronicled on the front pages. Man against the machine. Fighting against the odds. The federal government, the alphabet agencies — FBI, DEA, IRS, ATF etc — the state and local police, the crime labs. It is scaling Mt. Everest without oxygen. Can we live up to the history or has our day passed? Do we still have the heart, the desire, the nerve to take on all-comers?