Professional
Responsibility
Giving Reasons
In Confessions of a Criminal Lawyer (1982) begins the book with the story of his confrontation with a woman named Mrs. Lewis, a woman he had humiliated during cross-examination in a rape trial. In looking back on the case, Wishman begins to consider the possibility that Mrs. Lewis was telling the truth and that his humiliation of her had been unjustified. In a part of Wishman's book you were not asked to read, Wishman notes that
If a witness's testimony hurts his client's case, the lawyer, whose primary objective is to win, considers it his duty to discredit the witness's testimony, even when it may be truthful. He may try to confuse an overly cautious witness or intimidate a timid one, bait an irritable witness into appearing obnoxious, or tempt an arrogant one into exaggerating himself into an indefensible position. By the content of a question, or merely by the way the question is asked, a witness can be shamed, embarrassed, harassed, or angered into saying something that is or sounds untruthful. [174-175]
Wishman advances a number of different reasons to explain what took place
in his cross-examination of Mrs. Lewis, although some of the reasons emerge
not in his discussion of Mrs. Lewis, but from his comments about his life
as a lawyer:
<1> I did it, Wishman says, "to be effective in court,"
to be "an effective counsel." A lawyer must at times "act
forcefully, even brutally. . . ." [6, 7].
Wishman says of his earlier work as a prosecutor, "I was good at
it and getting better all the time." [15]
But this business of being "effective" is rather complicated. There are times, Wishman recognizes, when there are good strategic reasons for avoiding an attack on a witness's credibility:
"For although it may be possible to shake a witness's credibility, even a truthful witness's credibility, it is a difficult and risky endeavor. There is always a strong chance of failure and of alienating the jury in the process." [175]
Wishman makes clear that there are endless opportunities for a lawyer to make it appear that a witness is lying:
It is not unusual for a truthful witness to appear to be lying. When a witness testifies on direct examination, he is questioned by a friendly lawyer who wants his story believed by the jury. He has spoken to the lawyer in advance and has been told what questions will be asked. So it is not surprising that the witness should sound sincere and likable, answering the questions promptly and candidly. On cross-examination his attitude might seem entirely different. He might react nervously, creating the impression he is evading or lying. He might suspect--with good reason--that traps are being laid for him by this professional manipulator who knows all the rules. The witness may begin to take time to think about the questions, even simple questions, before answering. He may appear to be stalling for time to think about the questions, even simple questions, before answering. He may appear to be stalling for time by asking that a question be repeated, or complain that the lawyer is being unfair or the question cannot be answered with a simple yes or no. He may ask the judge for help and the judge may threaten him with contempt for not answering the lawyer. He may not look the lawyer in the eye, but stare at the jury, fearing they will not believe him. He may make a feeble joke. No one will laugh. He may ask the lawyer a question and be told abruptly to just address himself to the lawyer's questions. The lawyer can yell at him, shoot rapid-fire questions, be sarcastic, or accuse him of being a liar. And the jury will see a witness who could very well be evading, or withholding evidence, or lying. [173-174]
<2> "I had been trained in law school" to do it. [6]
<3> He says he regard what in did in the cross-examination of Mrs. Lewis as "an art form." [6]. "I would confess over the years, to . . . the joy of good craftsmanship: plotting out an intricate strategy, carrying off a good cross-examination, soaring through a moving summation. . . ." [17]
<4> "[T]here was nothing personal in what I was doing." [6]. Wishman notes that Judge Barrett, whom he had clerked for, would have been far less "personally disturbed" by the encounter with Mrs. Lewis than he had been." [9]. And still later, Wishman observes that when he tries to impeach the credibility or embarrass the policemen who lie on the witness stand, "even when I yell at them, they don't take it personally either." [133]
Wishman goes on to suggest that there was indeed something personal in the way he handled the Lewis cross-examination. He tells a story about being a prosecutor and learning that he had prosecuted an innocent man; it was, he says, "upsetting from a personal standpoint." [13]. He contrasts his own concern about the unjust conviction with the response of the trial judge who told him he "had no business meddling with the conviction" because the "adversary system had separate roles: a prosecutor should prosecute and a defense lawyer should defend" and that Wishman should have resolved his doubts before the trial. [12]. Wishman characterizes what happened in the conviction of an innocent man as a "miscarriage of justice" and for a man like Wishman, a "miscarriage of justice" is something to be upset about, something to act on, something which personally reflects his character. The trial judge in the Mace-spraying case is simply not going to let the conviction of an innocent man personally disturb him.
Finally, after reviewing the situation with Mrs. Lewis, Wishman concludes:
I had to admit that I was getting more out of what I was doing as a criminal lawyer than money or the intellectual satisfaction of supporting the legal system. I would confess, over the years, to ego gratification and the joy of good craftsmanship: plotting out an intricate strategy, carrying off a good cross-examination, soaring through a moving summation--and the sound of a jury saying "not guilty"--are all thrilling. But why did I find it so thrilling. I knew, but only vaguely, that on a personal basis my courtroom performances also had something to do with a need for power and control, respect and admiration. [17]
* * * * A good cross-examination was the hardest part of the trial, and when I was doing it well, it was thrilling--I was dominating the witness, the audience, the moment. Whatever self-doubt I might have as to whether I was really controlling the proceedings as I had thought, would be eliminated by the acquittal, if there was an acquittal. Where else could I find a place to be so decisive and powerful.
The fact that the lawyer's performance was in front of an audience added an important dimension to the enjoyment of the experience. All eyes were focused on me. The jury was composed of twelve critics to be persuaded; they watched me every moment. Spectators filled the courtroom to cheer their favorite players. . . . I could feel very important and special. A friend of mine once told me, "When I'm trying a case, standing there in front of a jury, it's the only time I feel totally alive." [200-201]
One way that Wishman (and we) insure that our work is not "personal" is to compartmentalize our personal feelings and our professional judgments. For example, Wishman says:
When Wishman concludes that the encounter with Mrs. Lewis has "changed things" for him, he concedes that it has indeed been "personal" after all.
A bell had been rung for me. Her outrage and pain after the trial had made a joke out of my posturing and my claims that there was nothing personal in what I had done. There damn well was something personal. If she had been telling the truth, I had stripped her of what little dignity she had left after my client had finished with her. [69]
<5> It was a "reflex," says Wishman.
[A] good trial lawyer has to act almost by reflex at times. When an adversary is asking something improper or when a witness is starting to say something he should not be allowed to say, a lawyer may have only a fraction of a second to make his objection before the jury hears the damaging testimony. The rules and the procedure have to become so much a part of the lawyer that he has to be on his feet objecting, cutting the speaker off, sometimes even before formulating the precise basis for the objection. [9]
Wishman later says that he acted reflexively to protect Williams, a child killer, who he had disliked and found disgusting [166]; and that he "had formed the habit of automatically sizing up character and trustworthiness" of others; that he had "developed a reflex of recalling all inconsistent statements, no matter how trivial. . . ." [239]
Wishman goes on to say that in had also been "swept up as a partisan. . . ." [50; see also 69-70].
<6> The humiliation of Mrs. Lewis on cross-examination was "merely
an aspect of my professional responsibility. . . ." [6-7].
"Maybe I hadn't done anything unethical--legally unethical. In fact,
I might have been doing what I, as a lawyer, was required to do."
[69]. After the encounter with Mrs. Lewis, Wishman
finds no "comfort" in what is now considered an abstract concept
of responsibility. "[P]art of me shared, or wanted to share, my judge's
conviction [Judge Barrett, who Wishman had served as a
clerk] that justice was served by a lawyer's skills, ethically
employed. . . ." [10]
<7> "[T]he trial was a fascinating process, a game, and I was
good at it and getting better all the time." [15].
Wishman talks about the "object of the game" as a defense lawyer
[15] and in a later passage in the book, as a "partisan"
who has his eye on winning. [50]. "And above
and beyond the pleasures of the game, the trial was a contest for high
stakes. The lawyer was literally playing for someone's life." [202]
Charles Reich, in the The Sorcerer of Bolinas Reef 27 (New York: Bantam, 1977) talks about colleagues at his Washington law firm who viewed winning and losing cases as if the practice of law were a game. But the irony, says Reich, is "they did not play it as if it were a game."
| Imagining the Practice of Law as a Game |
<8> I had, says Wishman, never connected the ideals that took me into law and my "feelings of justice" with "the anger of a humiliated witness." [7]
I had applied to law school with a deeply held belief that I could satisfy some high, even noble, expectations as a lawyer. Although I had never articulated what those expectations were, I knew I cared about the poor and the underdog; although I may have had only a hazy idea of what justice was, I did have an acute, albeit intuitive, sense of injustice. I didn't talk out loud about such things, because I didn't want to sound self-righteous or naive, but the truth was that beyond vague, grandiose feelings, I had never really thought it through, even for myself. [7]
D. T. Jones, the lawyer in Stephen Greenleaf's novel, The Ditto List 12 (New York: Ballantine Books, 1986), says of Jerome Fitzgerald, a fellow lawyer:
Jerome Fitzgerald had been one of the students he most despised in law school, one of those who had always known they wanted to be lawyers and had always known why--money and power and deductible vacations. No cause, no principle, no reformist zeal, just a respectably lucrative job. Less pressure than medicine, more fashionable than real estate or insurance, less risky than wildcatting or drug dealing.
We might expect someone with Fitzgerald's notions about life to act with disregard for the feelings and dignity of others. But many law students, with ideals more laudatory than Fitzgerald's, take pleasure in learning to justify as ethical conduct an uncivil and demeaning act to another human being--conduct that ordinary common sense suggest is an affront to ordinary morality.
<9> Wishman makes clear that his ego was involved. He recognizes that he had a "need for power and control, respect and admiration." [17][See also, Confessions of a Criminal Lawyer at 38-39, 200, 207, 220, 221, 227, 231]
My involvement with the process of a trial could make me feel wonderful. Sometimes I experienced a sense of power and control over events and people that is often lacking in everyday life. I could decide to make heroes and villains of people, and then go ahead and do it. I could decide to make people fear me or like me or respect me, and go ahead and do it. I could want to move a jury to tears, and go ahead and do it. [200]
Wishman does not comment on the obvious contradiction in his effort to rationalize the humiliation of Mrs. Lewis by asserting on the one hand that there was nothing personal in it and then admitting he had a deep psychological need to do what he did.
<10> Wishman also points to the judge he clerked for as helping explain his treatment of Mrs. Lewis. But the connection with Judge Barrett, "a gentleman of humor and intelligence and decency" is not altogether obvious, either to Wishman or to the reader. Wishman tells us that Judge Barrett had a "sense of justice" and that he held the judge in high esteem. Wishman admires Judge Barrett because he is a man of convictions. "Of course, he was guided by statutes and opinions of higher courts, but the details of a case often required interpretations that could be made only by relying on his personal convictions." Wishman watches the Judge struggle "with the more profound human questions" which he answers "with a consistency that seemed well-considered intellectually and satisfying emotionally." Wishman finds Judge Barrett to be a man of "integrity and conviction" and wishes to be that kind of man himself. [All quotes at p. 7]
Judge Barrett is, Wishman tells us, intelligent and decent, and he has a sense of humor. He is strong, emotionally stable and is a man of personal convictions and integrity. He is also a religious man and a gentleman. He has great faith in the legal system. Wishman wants to think that if he'd been more like Judge Barrett his confrontation with Mrs. Lewis would have bothered him less than it did. Wishman admires Judge Barrett for "his ability to prevent difficult and, at times, harsh decisions from disturbing other parts of his life." [8]
Wishman speculates that if the enraged Mrs. Lewis had confronted Judge Barrett, he would have simply found a way to relate her reactions to "the obligations of vigorous advocacy in our adversary system." [9]. And even if the Judge had been "personally distressed" by such an encounter, Wishman assumes that Judge Barrett would have been far less distressed than he was. The reason, Wishman suggests, is that Judge Barrett had a "dispassionate perception of the adversary system as an inherently worthwhile, if at times flawed, institution. . . ." [9]
One might pause at this juncture and ask whether Judge Barrett's character is as admirable as Wishman suggests? Wishman tells us that Judge Barrett
believed our penal system was inhumanely harsh, yet he sentenced defendants to long periods of incarceration. He held no higher value than the sanctity of human life; yet I watched him impose a death sentence without any apparent emotional conflict. And because a police officer had failed to knock on a door, I saw the judge, without hesitation, dismiss the case against a brutal rapist. [7-8]
And how does Wishman explain the Judge's actions? "Judge Barrett believed in our system of justice, in its principles and its process, to such a degree that his commitment to that system required and allowed him to put aside any other personal feelings about a particular case." [8]
Is it possible to act, in any role, as an actor in any system, with disregard to our feelings and not do some irreparable damage to the self? [See Wishman's account of how he deals with his personal feelings, Confessions of a Criminal Lawyer at 42, 148, 151-152, 153, 167, 207, 210-211, 215, 218, 225-246]
One can imagine an argument in support of Judge Barrett. The constitutional requirement of a search warrant violated by police officers in their zeal to arrest a rapist may require that evidence obtained incidental to the arrest be suppressed. Outraged as we may be by the possibility that any criminal may go free because of a mistake by the police, our outrage could equally be directed at the police for making a senseless mistake. It is not Judge Barrett's willingness to extend the protection of constitutional guarantees to the rapist that disturbs us so much as his ability to compartmentalize his intellectual and emotional life, his personal convictions and legal thinking, his highest ideals and his professional role as a judge.
| On Judge Barrett |
<11> "I began trying one case after another. . . ." [10]. Doing what he was doing to witnesses like Ms. Lewis got to be a habit.
<12> "I tried, as an act of will, to limit my vision to what I actually did in the courtroom. . . ." [15]. On limiting his vision, Wishman observes:
One of the more satisfying aspects of trying cases had been the escapist nature of the involvement. Totally losing myself, I would focus all my attention and energy on the events as they were unfolding before me. Although that kind of concentration was necessary throughout much of a trial, it closed off any opportunity for me to reflect on my own behavior, apart from the way it directly bore on my effectiveness as an advocate. I had to start paying closer, but wider, attention. [69-70]
<13> He wants to "win" his cases. [15]
<14> The practice of law as a defense lawyer is, "among other things, a business like any other business. . . ." [15]. "Within a year [after becoming a defense lawyer], I was working between sixty and seventy hours a week and earning a good living and that work had continued in the busy years that followed." [15-16]
<15> "I had done what a criminal lawyer was supposed to do." [18]. This point was confirmed by the trial judge who commended Wishman for his "brilliant" treatment of Mrs. Lewis in his cross-examination.
