Book Review: A Lawyer Reflects On Defending Guilty People

By U.S. District Judge Diane Humetewa | February 10, 2020, 6:11 PM EST

This article is part of an Expert Analysis series of book reviews from judges.

Judge Diane Humetewa

In "Guilty People," Abbe Smith brings the reader into our nation’s courts and prison systems in an attempt to show that the people in those systems are no less ordinary than those living outside of them.

One by one, Smith vividly recounts the individual lives and circumstances of some of her most notable clients. Most are notable for their seemingly ordinary lives that are forever changed once they enter the criminal court system. Others are notable because their personal circumstances appear to set them on an inevitable path toward an often unforgiving justice system. And still others are notable for the lessons, often hard ones, they leave behind with the author.

As a career public and clinical defender, Smith’s professional experiences took her from handling a misdemeanor caseload, to defending sex crimes offenders and murderers, and more recently, to working as a law school clinician seeking to free prisoners through various state parole systems.

"Guilty People," by Abbe Smith. UBC Press, 219 pages.

Ultimately, by frankly discussing her clients’ crimes, and their individuality, she aims to show the reader that many who are guilty are neither bad people nor incapable of redemption, and that the “excessively punitive nature of the criminal justice system” makes it, for some, virtually impossible to achieve redemption.

Smith begins the book by describing her early experiences in misdemeanor court, where her cases were processed rapid-fire, most in about three minutes' time. Smith attributes a host of reasons as to why these matters do not receive the type of due process afforded felony cases.

For example, she observes that that many offenders don’t claim to be innocent; she also notes that many, regardless of guilt or innocence, often plead guilty just “to get it over with.” She observes that many people do not realize that a single misdemeanor conviction often carries significant collateral consequences, such as loss of housing, job or educational opportunities.

As in many of her chapters, Smith ascribes a random quality to lower court case outcomes. She attributes much of this randomness to a luck of the draw, where the prosecutor, defense counsel and judge “can have more impact on the outcome of a case than the facts.”

Here, by sharing anecdotes of her representation of a few misdemeanants, she shows that meaningful representation and negotiation at this level can, and often does, have significant impact on the individual. Unfortunately, as she points out, the volume of these cases and the expediency with which they are handled, make considered decision-making virtually impossible.

In the chapter “Ordinary Felons,” she draws the reader into the lives, circumstances and acts (and in some cases, actual innocence) of individuals charged with assault, robbery, drug and weapon-involved offenses. In each case, she describes the person’s background, whether or not they committed the act(s), her legal strategies, their desired outcomes, and the ultimate case results.

Here, she points out how careful negotiation or trial strategy can, but does not always, yield the desired result. But what wins the day with Smith is the bona fide effort.

Ultimately, she characterizes most of these clients as those who acted for reasons that were more “situational than characterological” and she hopes that by revealing each person’s circumstances the reader will see something of themselves:

I have never physically struck a high-handed authority figure, but I have wanted to. Robbing people goes too far for me, but I understand the temptation and thrill of getting something for nothing if no one gets hurt.

Chapter 3, “Rapists,” is one of Smith’s most intriguing and perhaps provocative chapters. Smith again shares examples of the clients she represented who were charged with violent sexual assaults and child molestation. The chapter predominately focuses on Jamal, a juvenile from Washington D.C., who is accused of rape, and her attempts to prevent his transfer to adult status for prosecution. Before making that decision, the judge determines that Jamal needs competency restoration, a victory for Smith.

So, Jamal is sent off to a juvenile restoration facility in Minnesota — a unique environment that is unlike the city streets that he is used to. There, he seems to thrive: He academically improves and he develops a strong bond with the staff. Smith feels certain that his progress will help them avoid an adult prosecution. But the events that follow — Jamal is accused of raping an employee ­— are enough to make even the most seasoned defense lawyers reevaluate their choice of profession.

Smith, however is with him until the bitter end. Jamal, like some of Smith’s clients, was reared by dysfunctional parent(s), made to endure a lifetime of family neglect, including generational physical and sexual abuse. Yet, Smith maintains a level of optimism, that people, especially the young, may overcome their circumstances with the right help and understanding. Jamal is not that fortunate.

Smith acknowledges that of all her clients, these sexual assault offenders, most test her core values, including her feminist values. Smith pays homage to women (and men) who have survived brutal sexual assaults and makes an effort to show her understanding of the deep personal damage that these crimes inflict. Indeed, the passages in this section of the book repeat accounts of brutal sex assaults and victim testimony about acts of rape that are difficult to read.

She then describes several times that she had to attack the credibility of victims (some of whom she knew to be truthful). Her intent here seems to be to convince the reader that representing sex crimes offenders does not run contrary to her empathy or feminism, as many have claimed.

Rather, she tries to explain that, though she recognizes that her gender and feminism often help her client, it is not inconsistent to defend a sex offender with the same zeal as her other clients: “One can be a feminist — in a deep and broad sense — and zealously defend people who are accused or convicted of sex crimes,” she says.

Some readers may struggle to understand her views. However, she reminds the reader that, as in any other case, if she is successful in her cross-examination, then perhaps the prosecutor or victim advocate did not adequately prepare the witness or victim. Even still, perhaps there are fact issues in the case. Yet, in this chapter, the reader can sense that, in representing sex offenders, Smith has had to struggle and come to terms with her own personal and professional values.

"Guilty People" is certainly recommended reading for law students and lawyers who may want to pursue a career in providing defender services to the underserved. Not only does Smith frankly discuss the potential clients and procedural challenges one will encounter, in Chapter 5, “Guilty Clients, Guilty Lawyers,” she tackles the inevitable hard question she describes as “The Cocktail Party Question”: “How can you defend those people?” — referring to individuals who commit serious crimes of violence.

Throughout the book, Smith attempts to answer this question through her personal life lessons and insight, but always with a focus on the individual, and her role as their advocate in an often rigid criminal justice system. She explains that her life’s work, though challenging and often heartbreaking, is its own reward, and thus, she is a “very happy criminal defense lawyer.” She also realizes that this places her at odds with much of her cohort.

She then earnestly takes on what she sees as a new trend for those choosing defender work, “a martyred sense of guilt — lawyers who feel that suffering is an essential part of the job.” She discusses her concern about those who choose this line of work for its heroic and idealized empathy because, she says, it may be detrimental to the defender’s ability to truly imagine, then portray, the individual client’s circumstances when necessary.

She openly worries about the image of a public defender as “all-sacrificing and long-suffering” as not a good thing because it may lead law students and young lawyers to “revere criminal defense martyrs but resist criminal defense work for themselves” so that those who wish to pursue other interests, such as parenthood, may avoid defender work for its image of all-consuming personal sacrifice. She also takes issue with those who promote the image of the defense attorney-client relationship as a “special interest ‘friend,’” which promotes an idea that the defense attorney builds an unlimited friendship with the client.

Smith’s observations reminded me that, after a few months as a district judge, I found that sentencing individuals to prison day after day and week upon week was the most difficult part of the position. That caused me to reflect that, in each of those sentencing hearings, the same public defenders would appear before me, usually months after their client entered a guilty plea, to make a sentencing argument. But no matter how eloquent, legally sound or impassioned the argument, inevitably the defender knows that his or her client would be sent off to the U.S. Bureau of Prisons (an inevitable fact given the terms of most plea agreements). Many years ago, a few of these defenders were my adversaries.

It caused me to wonder about, then marvel at, the defenders’ personal stamina in handling, year after year, day after day, cases with clients who were generally destined for incarceration. How can they work in an office where they know, in all likelihood, their client would be convicted and sentenced to prison? The answer, as Smith describes, is as personal as the individual defender.

Smith’s experiences may also offer valuable insight to would-be and practicing prosecutors, in particular, for her discussions on the impact of charging decisions. As a former prosecutor, I was early taught that prosecutorial discretion is your most powerful tool. And that once a decision to file charges is let, the personal impact to the charged person would be profound. In the U.S. attorney’s office, there were always safeguards to check and recheck charging decisions, yet the weight of that initial decision was ominous.

And at the end of a case, I witnessed the impact of that decision on the accused, the victim and their respective families. But then, I moved on to the next case. Not until years later was I occasionally reminded of my charging decision. Usually, it occurred when a convicted individual was later released from prison and violated his supervised release terms due to the challenges he faced in reintegrating into his former community. Prison’s obvious affect is indeed hard to ignore.

Smith’s book provides a number of examples where, if the prosecutor was able to exercise discretion early in a case (or the office policy or state law permitted it), the outcome may have been different. Smith describes several instances where charging decisions, whether by individual discretion, office policy or statutory mandate, had profound results, particularly where an individual may need drug or mental health treatment. It may cause the reader to ponder what could have been, if the prosecutor decided to defer prosecution for pretrial diversion.

To be sure, the professional advocacy of an experienced legal defender aids any judge’s decisional process. The prosecutor’s candor and professionalism are equally, if not more critical to the process given their heightened legal responsibilities. But ultimately, a judge must adhere to the oath “to administer justice without respect to persons and do equal right to the poor and to the rich.”

So, it was troubling to read when Smith characterizes some of the outcomes of her client’s cases based on the luck of the draw or the individual judge’s attitude. For example, she often references drawing a “good judge” or describing a presiding judge as one who is “incapable of uttering the words ‘not guilty’” or about judges “who are often wrong but never in doubt.” Equally disturbing is her description of judges who obviously displayed bias for or against her or her client for what she explains as the judges’ personal sensitivities.

Her experiences with certain judges lead her to caution would-be defenders that “[g]etting slapped down, dressed down, and put down is part of the job.” While I have not personally encountered these circumstances as a practitioner, "Guilty People" may offer unique insight into Smith’s personal experiences and perceptions of judicial officers from a criminal defense attorney’s view.

Although she states, at the outset, that her book is not about policy, unfortunately, missing from "Guilty People" are Smith’s proposals on how to address the many failures of the systems that she spends time critiquing. It is unfortunate because Smith clearly has a lifetime of examples from which to draw upon. The closest that she gets to any policy discussion is stating her opinion that society would be better served in substituting minor offenses for effective pretrial diversion programs for serious misdemeanors.

To be sure, in certain cases, the social circumstances of poverty, substance abuse and mental illness, which many of her clients suffer, are weighty subjects that require their own volumes. Still, in discussing her individual clients’ circumstances, Smith transmits a simple message that seeing ourselves, or parts of ourselves, in people who commit crime may be the first step to exacting change in our justice systems. If that be her primary objective, "Guilty People" meets the mark.

Diane Humetewa is a federal judge for the U.S. District Court for the District of Arizona. She was nominated by President Barack Obama, and joined the court in 2014. She served as U.S. attorney for the District of Arizona from December 2007 to August 2009.

The opinions expressed are those of the author and do not necessarily reflect the views of Portfolio​​ Media Inc. or any of its​​ respective affiliates. This article is for general information purposes an​​d is​​ ​​not ​​intended to be and​​ should not be taken as legal advice.

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