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Ruminations of an old lawyer

Back when I was a young lawyer, in nineteen-never-mind, I represented a guy on a carrying a concealed weapon charge.  He was black and 26, had lived in the inner city all his life, and that was the first case he'd ever had.  Read that again.  He mouthed off to a cop, the cop patted him down and found a gun.

I'd filed a motion to suppress, and I showed up the morning of the hearing on time.  "On time," in the county I practice in, is a relative term; my favorite courtroom memory is the time a lawyer stuck his head in and asked the bailiff, "What time are the nine o'clock hearings?" 

The judge, who I'll call Angelotta, came out about half an hour later, saw me standing there, and publicly berated me in front of the ten or so other lawyers.  "I'll get to your case when I get to your case," he scolded me.

I hadn't said a word.  But I was young.

He did have the hearing an hour later, and he spent the entire time reading the newspaper.  And not secretly; he made a point of holding it up.  I finally said, "Let the record reflect that the judge has just reached the sports section."  On the inside.

Nothing like that would happen to me nowadays.  Criminal law is a very patriarchal profession.  If you're male and you've got some gray hairs, judges and bailiffs are very accommodating. 

Well, maybe.  To a certain extent it is a meritocracy; it matters whether you've got a reputation as a good lawyer.  I have a friend who's actually a decent lawyer, but he's got a terrible reputation for not showing up on time or doing the things he needs to do on a case, and asking for last-minute continuances of trial dates.  A few years back, his daughter had just suffered serious injuries in an accident, and he asked to continue a trial date for that reason.  The judge required medical documentation of the daughter's injuries.  Think about that:  the judge actually entertained the thought that the lawyer would make up a tragic injury to his daughter to get out of trying a case.

But a lot of it isn't a meritocracy, especially with women.  I know another lawyer - damn, I know a lot of lawyers, don't I? - a woman, who had a conflict with a pretrial in a case here in Common Pleas court; she had to appear in a suburban municipal court.  It was the first pretrial, she hadn't gotten discovery yet, and so the only thing to be accomplished was getting another pretrial date.  She sent another lawyer to cover for her.

The bailiff went nuts, telling the client that he was going to revoke her bond.  The next day, he took the lawyer off the case and assigned it to somebody else.

I can name thirty male lawyers who could've done the same thing, and the bailiff wouldn't have batted an eye.

So that's my screed on being an old lawyer.  Sometimes you don't get the benefit of age, to be sure.  A month ago I had a pretrial on a case.  In this county, one of the purposes of the pretrial is to request a "mark," that is, a plea deal that the defendant will accept.  (It gets its name from the fact that the prosecutor handling the case has no authority to make a plea bargain; he must submit it to one of three supervisors, who after the reviewing the file will "mark" it to what plea is authorized.)  The prosecutor had been handling felony cases for no more than a year.  I told her that I wanted a misdemeanor, and she warned me that her supervisor, if he felt a plea request was unreasonable, would mark the plea to the indictment.

I guess she expected my eyes to go round as the fevered guitar riff of Fleetwood Mac's "I'm So Afraid" welled in the background.  I thanked her for her advice, telling her that I'd always depended upon the kindness of strangers.  Two weeks later, I pled the case out to a misdemeanor.

But let's go back to Judge Angelotta, which is what this is really about, because it was a formative moment in my legal career.  I wasn't bothered by the disrespect shown to me.  This is what bothered me:

Here you have a black man who, against some odds, managed to be a law-abiding, productive member of society.  And he's finally brought into the criminal justice system, and he sees a white judge reading the newspaper while two white lawyers are debating his fate.  And you wonder why the black man thinks that maybe, just maybe, the dice are loaded?

That was another time, and it wouldn't happen today.  Back then, 32 of the 34 judges were white males; now, only half are.  I can't imagine any of them doing what Angelotta did. 

Not openly.  But if the last couple of years have taught us anything, it's that the criminal justice system is anything but colorblind.  There is still work to be done, and maybe always will be, because if I could distill my 40 years of the practice c4of riminal law into two observations, they would be that if you're the defendant, it almost never helps to be black, and it almost never hurts to be white.


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