Forgive Yourself Without Becoming Complacent; Dream Without Becoming Discouraged
An interesting and important discussion has been taking place thanks to several NAPD posts that prompted the online magazine, Pacific Standard, to publish an article entitled Public Defenders: Heroes But Human. I appreciate the title, lest anyone think there is some debate raging amongst our community about whether public defenders as heroes OR human. I believe we are BOTH and that to be effective we must embrace each.An interesting and important discussion has been taking place thanks to several NAPD posts that prompted the online magazine, Pacific Standard, to publish an article entitled Public Defenders: Heroes But Human. I appreciate the title, lest anyone think there is some debate raging amongst our community about whether public defenders as heroes OR human. I believe we are BOTH and that to be effective we must embrace each.
The discussion began when Andre Vitale responded to comments by the great trial lawyer, Gerry Spence. I am certain Spence was trying to be supportive of public defenders when he said:
“I have great respect for public defenders, but what if the public defender has a hundred cases—what if the public defender is only a public defender in name?” Spence asked the audience. “Let me tell you something. If I had a hundred cases, I'd have to plead him guilty! I'd have to make the best deal that I could make! If I had a hundred cases, I couldn't see my client until I walked into the courtroom.”
Knowing Spence to champion the important right to counsel, I imagine he was hoping to ignite concern over the fact that we have failed to live up to the promise of Gideon as a nation; that by refusing to support our public defenders we have left society's most vulnerable members without the advocate the Constitution demands. This, I assume, was to be a clarion call to action.
But Andre Vitale, who has been a public defender in the trenches for nearly two decades, and is as inspired a lawyer for the poor as one will meet, tuned into another message. It is a very real message that is subtly fed our nation's public defenders every day. That the battle is unwinnable. That they cannot succeed. That they will never be able to do a thing for any client. That their only option is to join the processing of poor people into prison cells. There is a school of thought that teaches that until we engage in the structural reform necessary defenders cannot make a difference.
Sadly, good public defenders can internalize this message if it is beaten into them enough. They can burn out from the constant refrain of how little they can do. The drumbeat becomes a self-fulfilling prophesy. I know Andre, and so I can see his antennae shoot up when he hears this message. His post was meant to provide a counter narrative. To inspire our community to not assume they can do nothing for their clients, and to therefore live down to that expectation. Andre focused on reminding defenders of all the heroic work they do every day, even against overwhelming odds.
John Gross read Andre's post and focused on another very real concern; that public defenders can come to accept the conditions in which they work and come to believe they are in fact giving every client what they deserve. I read John to be responding to the concern that criminal justice professionals, including public defenders, can come to accept what author
Amy Bach coins “ordinary injustice.” In her insightful book, Bach argues that “ordinary injustice results when a community of legal professionals becomes so accustomed to a pattern of lapses that they can no longer see their role in them.”
Like any other criminal justice professional, public defenders can get shaped by an unjust system to the point that they stop recognizing the extent of the injustice. This is not a comment about the lawyer…it is a statement about the system. But it can be hard to not beat up on ourselves.
A natural defense mechanism is to begin to accept the status quo. Human nature can drive us to deny the extent to which the system shapes us. Although public defenders can come up short through no fault of our own, it is hard to not see our shortcomings as personal failings. When we personalize our shortcomings, we are more likely to deny them. And so there are times when defenders can fail to see their role in perpetuating an unjust system.
I read John's post as an important reminder that public defenders must serve as a voice that reminds the system that it is denying public defenders the tools needed to live up to our constitutional obligation to our clients. That we must not allow ourselves to become blind to the things we cannot do for every client. That we must acknowledge that we have not fulfilled Gideon's Promise and not be defensive in discussing where the system has rendered us ineffective.
But as I read these posts I do not see them as reflecting a divide in our community. I read them as responding to two different challenges our defenders face every day. These positions do not contradict one another. I think both struggles live inside every thoughtful defender.
As I read these posts I was reminded of how we grappled with this exact struggle as we built Gideon's Promise. With a committed faculty of experienced defenders, we developed a core curriculum designed to teach young defenders what every client deserved. It covers the importance of client communications and how to build a successful relationship with the client. This takes time. It focuses on the need to constantly think about how to approach daily dilemmas in ways that are both ethical and client-centered. This requires much thought. It instructs the lawyer to see every aspect of the pretrial process as a critical piece of the larger representation. The skilled lawyer must see client interviews, bond hearings, preliminary hearings, investigation, discovery practice, and motions practice as inter-related aspects of a larger strategy, with each impacting the overall goal. None can be considered in a vacuum. This requires creativity and planning. It teaches that the lawyer cannot even begin to develop a case theory – and therefore begin thinking about how to conduct voir dire, opening, direct, cross, and closing – until this front-end work is done. This work informs plea negotiations, motions in limine, jury instructions, how we plan for objections at trial, and every aspect of what we do to achieve the best result for our client.
When one understands what every client deserves, he or she recognizes that even the simplest case requires time and attention to handle properly. To give every client what he or she deserves – what we would demand for our loved ones – takes more time than any public defender can devote to every case. So our young lawyers began to feel defeated. They felt like they were ineffective. They couldn't give every client what they deserved. Their caseloads were too heavy. They did not have all the resources they needed for investigation and expert witnesses. And, they heard us as teaching that if they could not do these things for every client they were bad lawyers.
Our core faculty who are responsible for the development of the curriculum realized that we had not been as thoughtful as we needed to be about how we message the task that confronts these lawyers. We got together to think about how to talk about what every client deserves in the context of the very real world facing public defenders where they will not be able to live up to this expectation for every client.
Do we stop teaching what every client deserves, because our lawyers cannot do it in every case? Of course not. To teach something less is only preparing defenders to reinforce a sub-standard status quo. Do we teach this high standard alongside a message that anything less is failure? No…as we were experiencing, if this is what young defenders hear, it is only a matter of time before they feel defeated and quit. So we started to talk about these two very real challenges, not as contradictory, but as a balance that must be struck. We must put these challenges on the table and discuss them as part of the training model.
We began to talk about how on the one hand, public defenders must learn to forgive themselves for the things they cannot do for their clients that are beyond their control. Forgiving oneself is critical if one is to sustain themselves in this work. But we also discuss how giving oneself permission to fall short through forgiveness can be a slippery slope. If we forgive ourselves to the point that we no longer hold ourselves accountable, we can become complacent about the status quo and not fight to change it. I think this is the challenge John focused on in his post.
On the other hand we want public defenders to aspire to a better justice system; to be conscious of what our clients deserve and dream of a system that provides that. Public defenders should work every day to move a little closer to this aspiration, even if they will never get there in their career. However, focusing on what our clients deserve in theory can serve as a reminder of how far we fall short at times. It can be discouraging. Staying focused on the aspiration can serve as a reminder of how far we fall short. It can be discouraging. But we must focus on what Gideon demands or we risk settling for less. Keeping lawyers inspired as they work towards this goal is critical. Some defender organizations will get there sooner than others. Some have so many challenges that they will inch along. But pressing forward, regardless of the ace is important. As leaders we must keep our lawyers inspired about the successes they win every day, and help to keep them from dwelling on the long road ahead. I think this was the focus of Andre's posts.
But I believe both concerns are important and that we must address them simultaneously. This is exactly why we now consciously focus on both issues when we train and mentor our lawyers. We teach that they must forgive themselves without becoming complacent and dream without becoming discouraged. We teach them that they are the heroes who will eventually lead us to the dream. But that they are also human, and that they must accept their limitations and not allow that to defeat them. Read in conjunction, this is what I take from this larger discussion. I do not think these are competing views. I think they are complimentary. I do not think there is a divide in our community. I think we are working together to think through the myriad challenges that face our defenders. I read these posts as equally important parts of a larger conversation. We would do well to heed both.