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The Defense Rests -- Permanently


Risky business: A jubilant Ben Brafman after getting Sean Combs acquitted.  

Because the guidelines mandate serious prison terms, many criminals facing these double-digit sentences don't want to go to trial. It's too risky. They'd much rather plead guilty and make some kind of deal for a shorter sentence.

This gives prosecutors unparalleled power and has turned judges, many lawyers argue, into little more than functionaries. Federal judge Jack Weinstein, who actually had refused for a period of time to handle drug cases because of the lengthy mandatory sentences, says that while judges do still have some latitude -- "We have a variety of devices available to us to exercise discretion and to depart from the sentencing guidelines," says Weinstein -- prosecutors have the upper hand. "Where the power has really shifted to the prosecutors is because they're the ones who can offer a defendant a deal."

"Defense lawyers really feel like they have no job anymore. It's like all the lawyering's been taken out of being a lawyer," says Ellen Yaroshefsky, a professor at Cardozo law school.

And, of course, it means that the demand for high-price legal-defense talent has dried up. Not only do the lawyers get to try cases much less often, but their fees have been steadily falling as well. Since many accused criminals know as soon as they're arrested that they're going to make a deal, why spend a lot of money to hire an expensive private attorney?

It's also taken much of the challenge -- and all of the sport -- out of defense work. "This work used to be fun," says Rudin, "but the fun was in competing head-to-head on a relatively level playing field with the prosecution, trying to be the best advocate you could for your client. But that's no longer realistic because the prosecutors hold all the cards and the opportunities for success are so small. It's become virtually impossible to fight the system."

Consequently, Rudin says, very few people do. "Prosecutors are shocked, shocked, when someone comes in and wants to fight for his client in the old tradition as an adversary. Many defense lawyers don't even know how to fight a case anymore. For twenty years I've been marching down to the prosecutor's office to beg for mercy, and I'm sick of it. I can't do it anymore."

Laurie McPherson, who spent eight years as a defense attorney, concurs. "Very few criminal cases get to trial," she says. "Everybody's cooperating, and I got sick and tired of just writing sentencing memos."

In the last criminal case she tried, McPherson says she represented a man in his sixties accused of distributing marijuana. "They never found so much as a seed directly connected to my client," she remembers, "but the government brought in three thugs, convicted felons, to testify. As a result, my client got 27 years, a veritable life sentence." The prosecutor, she adds, even asked for a longer sentence. "It's tough, it really wears on you, and the rewards just aren't there anymore." McPherson has given up criminal law for the most part, concentrating on civil work.

Some of those who've stayed have become so uncomfortable representing cooperators that they've actually begun to refuse to do it. "I view my role as a criminal-defense lawyer as a buffer against the state and a watchdog on abuses by the prosecution, the police, and the judges," says Diarmuid White, who's been practicing nearly twenty years. "When you represent a cooperating defendant, you're actually sitting down with the government and helping them make cases against other people, and I don't think that's good for our democracy. I won't do it. I lose business, but I sleep well at night."

Rudin argues that the pursuit of punishment at all cost has caused those in the system to lose sight of everything else: "Loyalty to friends, to family, is an important value. So what happens to the person who gets set up by some desperate informant who'll say anything to save his own skin? Now that person is in the same position, being asked to give up friends, family, anybody to save themselves. The system acts like this is the highest virtue. And if someone has too much loyalty to do this, or simply doesn't have anyone to give up anyway, the system will then destroy him. I really don't want to be a part of that system any longer."

Rudin is certainly not alone in his feelings. Among defense lawyers all over the country, the rumble of discontent has been growing louder for some time. Law journals and trade-association publications regularly carry articles by defense lawyers railing about the problems they face. These diatribes cover everything from serious legal issues (the erosion of a defendant's rights and the enormous increase in the prosecutor's power) to business problems (a shrinking client pool and smaller fees) to the increasingly degrading way they're treated by the courts (since September 11, defense lawyers are no longer allowed to enter many courthouses through the same entrance as judges and prosecutors, which often means long waits to go through security). "We have been emasculated by the system," says Hugh Mo.

"I'm angry, I'm frustrated, and I'm upset," says Lawrence S. Goldman, president-elect of the National Association of Criminal Defense Lawyers. "This has become a less pleasant profession, a less remunerative profession, and a profession in which it is far more difficult to be successful."

"We went through a twenty-year war on crime and a twenty-year war on drugs," says activist and lawyer Gerry Lefcourt. "And the result is what I call the Tyranny of Small Decisions. Everything has gone their way. From the appointment of conservative judges to the extraordinary budgets for every aspect of law enforcement, to the astonishing volume of criminal-justice legislation put forward every year by politicians frightened of being labeled soft on crime, each decision has pecked away at citizens' rights and served to promulgate the multifaceted intimidation of the defense bar."

Even the gregarious Murray Richman has lately taken a distinctly gloomy view. "I now tell young people not to go into criminal law," says Richman, whose own daughter Stacey has been practicing with him for five years. "I tell them it's a dead end, that there's no future in the criminal-justice system for a young lawyer today. To me that's truly, truly heartbreaking."

Ron Kliegerman, who has spent the past 30 years as a lawyer and whose practice includes representation of the firefighters union, goes one step further. "If I had it to do all over again, I wouldn't even go to law school."

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