Defense attorneys key part of justice system - Albuquerque Journal

Defense attorneys key part of justice system

If you have never seen the inside of a courtroom, consider yourself lucky. Aside from judicial practitioners, most people never set foot in the halls of justice unless they’re defendants accused of bad things or victims harmed by those bad things.

That’s a good thing.

That, though, should not be an excuse to avoid knowing at least the rudimentary elements of our laws. The more you know, after all, the more you can complain (or praise) with enlightenment.

People rail against the sentencing in a high-profile crime and vow to vote out the judge behind it. But they don’t educate themselves on the parameters that restrict the judge on how short or how long that sentence can be.

People misunderstand the machinations of justice. In September, for example, many were outraged when the three defendants in the horrific mutilation slaying of 10-year-old Victoria Martens entered “not guilty” pleas at arraignment.

“How can these animals be allowed to plead not guilty with the evidence right in their hands!!” one woman wrote on Facebook, her exclamation marks like daggers. “It’s ridiculous that we, as taxpayers, have to take care of them and pay for this crap!!!”

But such a plea is perfunctory, a first step, part of the process we taxpayers pay for to kick the wheels of justice into gear.

And as hard as we in the news business try to get the facts right in an unfolding criminal investigation, neither we nor the law enforcement officers who make the arrest always have both sides of the story by the time an arraignment takes place.

Which is where defense attorneys come in. Their crucial role in the criminal justice system is to uncover the other side of the story and to defend their clients with it.

Yet of all the misunderstood and maligned components of the system, defense attorneys rank right at the top. They are, to some, the slimy, soulless “Better Call Saul” shills who make a buck off representing the lowest of the low – and not very well at that.

This crazy, crude political season has added to the din of disdain, which is both troubling and toxic to our system of jurisprudence.

One of the most ubiquitous – and provably false – attacks against Democratic presidential nominee Hillary Clinton portrays her as gleefully representing a defendant accused of raping a young girl in 1975, successfully arguing his innocence by demeaning the girl and laughing about it later.

The one truth in that scenario is that Clinton was a defense attorney.

Democratic vice presidential candidate Tim Kaine also represented men accused of rape and murder during his years as a defense attorney.

“He has a passion for defending the wrong people,” an attack ad against Kaine intones.

(Side note: Republican vice presidential candidate Mike Pence was also an attorney, but handled contract disputes and negotiations, real estate transactions and landlord-tenant issues. Donald Trump was never a lawyer but knows lawsuits, having been involved in at least 3,500 legal actions – so far.)

It has ever been thus. We believe we are innocent until proven guilty yet decry the folks who work to make this a reality.

SCHMIDT-NOWARA: Defendants deserve zealous representation.
SCHMIDT-NOWARA: Defendants deserve zealous representation.

“I can’t even tell you how many occasions I’ve been asked how do you sleep at night, how do you live with yourself, how can you be in the same room with these people, there must be something wrong with you – all these moral judgments,” said Molly Schmidt-Nowara, an Albuquerque attorney and adjunct professor at the University of New Mexico School of Law. “But this is why we have due process, why we have this amazing Constitution and Bill of Rights. We don’t leave justice to a mob of people inflamed by heinous accusations.”

RABERN: Defense work keeps system from getting sloppy.
RABERN: Defense work keeps system from getting sloppy.

Santa Fe lawyer Trace Rabern also has spent years defending her profession.

“I’ve been asked how I sleep at night, and the thing is there have been times I couldn’t sleep a lot, not because of who I was defending but whether I was doing a good job of defending,” she said.

Think of the system, Rabern said, as a three-legged stool, the legs representing judge, prosecutor and defense attorney. Lose any one of those legs and the stool falls.

“It’s an adversarial system that only works if there is zealous representation on all sides,” she said. “Otherwise, the system tends to get sloppy.”

Such zealous representation aims to ensure that a defendant loses his or her freedom only when there is enough evidence to justify it, and that serves to protect us all.

“As one of my favorite mentors used to say, ‘Everyone hates a defense lawyer until they need one,’ ” Schmidt-Nowara said. “But I believe every person has a right not just to have a vigorous defense but to have a lawyer who tries to see that piece of humanity that exists within them and to expose that to the court. As controversial as this sounds, it is a privilege to go into court and ask for mercy, and expose the better angels or the humanity in a person even if that person is being vilified by the public.”

Here is my hope that you don’t have to learn this firsthand, but that you learn it nevertheless.

UpFront is a daily front-page news and opinion column. Comment directly to Joline at 823-3603, or follow her on Twitter @jolinegkg. Go to to submit a letter to the editor.


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