Contrary to so many lawyers, Wishman is reflective about his work. As a prosecutor, Wishman realized he was not making the world safer from criminals. Consequently, the ideal of a safer world was replaced with the more instrumental goal of learning the skills of the trade, becoming a craftsman, and taking pleasure in getting the experience and credentials he needed for private practice. [Seymour Wishman, Confessions of a Criminal Lawyer, at 15]

(i) Are there instances in your own life in which you have replaced a worthwhile ideal with a more pragmatic instrumental goal?

(ii) The problem, and one might argue, Wishman's saving grace, is that his instrumental goals do not completely block-out his concern for justice. He relates one incident that puts his sense of justice to the acid test. Wishman, "elated" at yet another victory, realizes that he has prosecuted and helped convict a man that may be innocent.

[A]fter the initial excitement of winning, I looked at what I had done. I had been so caught up in the contest, the adversarial battle of the trial, that it hadn't occurred to me that I might have been responsible for the conviction of an innocent man.... On reflection, after the verdict, it seemed to me that the defendant might have been telling the truth. [11-12]

Wishman confirms the defendant's story and sets out to rectify the injustice of the wrongful conviction. It turns out to be more difficult than he contemplated.

With my hands sweating as they clutched the papers, I ran down the courthouse corridor to the judge who had presided over the trial. I had expected him to be as upset as I was. The judge said I had no business meddling with the conviction; our adversary system had separate roles: a prosecutor should prosecute and a defense lawyer should defend, and if I had doubts...they should have been resolved before the conviction. [12]

To Wishman's dismay the judge seems to have no interest in correcting, much less exposing, the state's complicity in injustice. The judge (typical of those who hold power) is interested in saving face. The judge sees the failure in the legal system as an embarrassment to be ignored or covered up rather than an injustice to rectify. [For another "saving face" story, see Anthony D'Amato, Rethinking Legal Education, 74 Marquette L. Rev. 1, 30-35 (1990)]

The trial judge finally agrees to reopen the case but the public defender who represented the defendant does not pursue the matter and leaves the public defender's office to enter private practice. Six months later Wishman learns that the conviction has not been set aside. He contacts the new attorney assigned to the defendant and urges him to move for a new trial. Eight months after the trial the conviction is vacated.

Wishman speculates that the trial judge's reaction in the case is not out of line with the approach Judge Barrett might have taken. Wishman speculates that Judge Barrett "would have maintained that legal ethics required me to continue the prosecution of the case, leaving it to the jury to make the final decision about guilt" (p. 13). Judge Barrett, devoted to an abstract professional role, would analyze matters such as the incident Wishman had with Mrs. Lewis and the prosecution of an innocent person without letting his "personal" feelings intrude. Wishman speculates that Judge Barrett would have justified the prosecution by distinguishing between "the possibility of his innocence" and a "substantial belief" that he was innocent. Since Wishman had only the former, Judge Barrett's notion of legal ethics would not demand that he seek to have the conviction overturned. [13]

Wishman explains his own response as fear that an innocent man might be convicted. It was "upsetting from a personal standpoint." [13] Wishman finds that it is indeed his "personal" feelings about the situation that made it possible for him to pursue justice for the innocent defendant who had been found guilty. (Note that it was the absence of personal feelings that made it possible for Wishman to humiliate Mrs. Lewis.)

Return to: Seymour Wishman's Reasons

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