News Archive
It's Been a Helluva Ride
Jan 02, 2006
Donna Elm
Look how far we've come. It was just a few years back that the defense bar had almost no clout, and we were routinely ignored when the criminal justice pie was being divided. I remember (regrettably) buying into the mind-set that the Defense was the unwanted but clinging bastard child of the system. The only people flourishing in this negative pursuit were toughs who reveled in being thorns in the State's side; the substantial number of defenders who were not outspoken radicals found no refuge. No wonder the branches of government walked all over us! The judges and even the Supreme Court routinely cast us as the scapegoat. The prosecution beat us black and blue in litigation by stacking the deck with shamelessly pro-State laws and ruthlessly pro-law enforcement policies. Legislators, too, advanced their own political agendas by trumpeting the "crime of the month" while standing on the necks of our clients. We got No Respect in a Big Way.
It's not that we didn't deserve respect, but it's clear that we didn't demand it-or command it either. We failed to make the rest of the justice system appreciate and credit us. Now that we're gaining ground, we can see just how important that is to us and our clients. We are a major and indispensable player in criminal justice and a force trying to repair a society that is unhealthily out of balance.
Rightfully so. We're not just an aggravating impediment to our country's current love affair with victims. We are grounded in constitutional roots deeper than American history itself. We are part of those "inalienable rights" that all persons are entitled to: Life, Liberty, and the Pursuit of Happiness. Liberty is what we are all about. We need to remind ourselves and others that that's a good thing.
We got the attention of the justice system by organizing, by speaking persuasively and with one voice, and by insisting on being heard. Maricopa County Public Defenders were the first to send a defense lobbyist to the legislature, where the prosecutors have been directing the course of legislation for years. APDA followed suit, and now AACJ, which always had a few members who would speak out at the legislature, has hired its own lobbyist. We've stopped bad legislation, that would have sailed through before, dead in its tracks. This year will be a milestone: the first time the Defense has initiated and sponsored a bill. The bill is to get defense representatives on the Arizona Criminal Justice Commission, a legislatively appointed council made up of prosecutors, probation officers, cops, and judges-but none of us-which holds the purse strings for enormous amounts of political funding within criminal justice. Jim Belanger's committee furthermore started the process of getting the ABA Standards for Death Penalty Representation adopted in this state. If we succeed, Arizona will be the first state in the nation to have done so.
We've also used reason and the law, with some political savvy, to make headway with the Governor's office in matters such as the Office for Highway Safety's outrageous anti-defense lawyer DUI ads. Our Governor has also been great for diversity, including diversity of practice, and has been re-populating the bench with good defense lawyers. We placed defenders on bar committees, task forces, commissions, and some policy-makers' speed-dials. We were instrumental in stopping the much-reviled Continuance Panel and in developing saner approaches to reducing delay in Maricopa County. Moreover, we've been improving access to jails for the Defense throughout the state.
Our amicus brief in the Hamm matter reminded the Supreme Court of the perspective it should maintain (that rehabilitation is worth something); indeed, the Court's ruling was consistent with our philosophical position, rejecting the rehabilitation-doesn't-matter position of the State Bar and Andrew Thomas. We offer a voice of reason and a reminder of humanity in everyone. We have come a long way to be sure.
We have also brought about changes in how some of our society feels about us; they honestly appreciate and what we do. We've done that through public speaking, the media, and teaching, and, never forget: educating our juries. One unintended benefit from the huge number of trials the Defense has been putting on is, compared with a decade ago, my jury pools now have several folk who have sat on juries before where they came to a decision to acquit, or they concluded that the defendant was wrongly accused. They have a keen understanding of what we do.
I taught in some Criminal Justice classes at NAU the other day. I must've spent half of every class explaining why what the Defense does isn't bad. Intellectually, they were hip, but some harbored lingering doubts. Frankly, for a generation raised on Law and Order, it's amazing that any young adults these days appreciate that there's a Defense function - other than negotiating a plea! One student wanted the Defense to try only cases where the accused was innocent, arguing that defending the guilty is "two wrongs don't make a right." "That's funny," I responded, "I never thought of our Constitution as a wrong." We are, after all, part of what made this country great, embodying the ideals of liberty and a limited government.
Sometimes we convert those you'd least expect. A detective I had had cases with ran into me off-duty once and, with no defendants for us to take sides on, we got into the predictable discussion. "I could never do what you do," he started. I encouraged him, "Sure you could." As he protested that it just wasn't in him, I pointed out that he's a good cop because he believes in what he does, and he sees his job as protecting people. "That's exactly what defense attorneys do." Then I reminded him of his victims who sometimes were scummier than my clients, pointing out, "- and you still protected them, because you don't protect just the 'good people,' you're sworn to protect victims no matter how reprehensible they may be." Just like we do: rich or poor, strong or weak, innocent or guilty. He finally saw it. Years later when his son was indicted, he came to me, asking for help protecting his boy, and I did.
In little inroads and big dramatic developments, the Defense is gaining ground. One of the more important changes is occurring with AACJ's re-structuring to get more representation and involvement from the rural counties. There is a quiet but influential strength in our members from these parts, and they add geographic juice as well as access to the political system that has been invaluable. The organization is indebted to John Stookey who took the lead in the process of change, and voices like Ralph Ellenwood, Perry Hicks, and John Minore who reminded us how crucial a part the rural counties play in moving the Defense to the forefront.
AACJ has focused on making the organization much more valuable to its members. This website, borne of many hard hours of work by Joe Keilp, Tyler Francis, Kristi Adams, and Ellen Salvesen can be a crucial link to resources, information, and dialog for us. As members start filling our brief and transcript banks, we'll offer an incredible leg-up to the Defense bar. AACJ continues to create and work with practice groups, units of lawyers expert in fields like immigration, cybercrime, or sex offenses, who keep abreast of developments and can consult, offer motions, and direct organized litigation on behalf of the defense bar.
These are heady times for the Defense and AACJ, and I have been honored by your allowing me to lead the charge over the past year. When I started as President, I noted that the posse was assembled, and it was time to saddle up and ride. Well, it's been one helluva ride! And it's not over yet. We're switching horses, but not in mid-stream. to Joe St. Louis has his feet planted firmly on the shore, and is committed to continuing the pursuit and the mission. Your contributions, in big and little ways, to these developments will get us there.
Ride on, compadres, ride on!