Professional Responsibility

 A Criminal Lawyer's Inner Damage

Seymour Wishman
New York Times, July 18, 1977

I surprised my client near the end of his testimony by confronting him with the photographs of his two-year-old daughter lying naked on a slab, her little body showing whipping scars, cigarette burns and pieces of flesh torn away.

"Did you do this? Did you do this to your own daughter?" I asked accusatorially.

"Some of the marks. Yes. My wife also beat her."

"How could you do such a thing?"

"She kept crying. She'd mess in her pants, things like that. I had to teach her," he answered tentatively, taken aback by my anger. "I thought that's what you're supposed to do."

From the far end of the courtroom, my voice charged with emotion, I screamed, "Did you love her?"

"Yes," he said softly, looking at the jury, "I loved her very much."

The jury, at last, heard barely restrained pain and remorse from my client. The male foreman of the jury wept. It was very effective.

One cost of the administration of criminal justice is the damage it does to the emotional and spiritual life of the lawyers. The criminal process, is, surely, worse for defendants, and still worse for victims; but I am concerned here with lawyers like me who have, over a period of years, tried too many cases like this one, and are, I believe, scarred by the process.

My world is filled with deceit, incompetence, aggression, and violence. I've had to adjust.

Many of my clients are monsters who have done monstrous things. Although occasionally not guilty of the crime charged, nearly all my clients have been guilty of something. To deal with shocking behavior, the mind creates a separating distance. In my murder case with the little girl, I constantly resisted calling her "it" in front of the jury, but "it" was usually what I thought.

It seems, at times, that everyone lies to me. Virtually every client has, at some point, lied to me. But not only criminals lie; witnesses, paid experts such as psychiatrists, prosecutors, even some judges lie. Many cops, I suspect, can no longer identify the truth.

As a result, I have grown more distrustful of people. I automatically search for motives and reflexively recall all prior inconsistent statements, however trivial, good habits for a criminal lawyer, if only they didn't carry over, insidiously, into my personal life.

I am surrounded by incompetence. On one side are the clients, each a failed burglar, rapist, murderer, or whatever. If they had been successful, they wouldn't have needed me. On the other side there is an astounding array of professional incompetents. The client accused of killing his daughter was acquitted of murder because the cops had improperly searched his apartment, the police photographer had lost the most gruesome close-ups, and the medical examiner could barely speak English.

To be effective in court I must act forcefully, and, often, brutally, I must frequently, for example, discredit witnesses, destroy them if possible. Surely not every witness I have humiliated was as despicable as I had tried to portray them. Yet, to function successfully, and with less guilt, I began years ago to regard the cross-examination as an art form, nothing personal, and I have been complimented by judges for my skill.

The successes also make it difficult to leave behind in the courtroom the arrogance and inflated sense of control over people. The trial itself is ritualized aggression between combatants. Fighting as vigorously and resourcefully as possible to win for one's client is in the highest tradition of the profession. The less worthy the client, the more noble the effort.

But this "professionalism" that makes a virtue out of noninvolvement with the client fosters an attitude of dissociation that can distort other parts of your life.

The detachment needed to function dispassionately widens the distance between one's natural emotional and intellectual reactions. This detachment is exacerbated when intellectual judgments require conjuring up emotional reactions in the courtroom that are deceits in themselves.