The Death of Formality

JUSTICE:

It has seemed to me, of late, that we as lawyers no longer impart to our clients – and apparently this failing also extends to Judges, Prosecutors, and Court Staff – the sense of formality, ritual, or “mystery” (as used in a quasi-religious context) to the criminal justice system.

Informality, in my opinion, allows and perhaps encourages a ‘slapdash’ approach to the practice of law. We (and as a mea culpa, I do include myself in this) negotiate terms and conditions of plea bargains ‘on the fly’ with Prosecutors in unsecure, semi-public workrooms in Dallas County. Very serious consequences are routinely discussed in casual, even flippant terms (I, myself, am perhaps more guilty than most of this). We (yup, still me too) admonish our clients of the consequences of waiving their fundamental constitutional rights in a period of time that is measured in minutes, if not seconds.

As I was writing some of these words, I was in court observing a plea and sentencing for a defendant’s case that is at least a 2nd degree felony drug crime. The defendant was standing with his attorney in front of the judge giving testimony. The prosecutor was leaning against the witness stand. (Again, these are things that I myself have done routinely.)

Perhaps the court system is overcrowded. Perhaps the system would break down if every case were treated with the kind of formality that is required both by ethical standards and by statute for capital cases. Granted, the possible consequences of a capital case far eclipse any other type of case, but does not the defendant charged with a class ‘b’ misdemeanor enjoy the same basic rights and privileges as the capital defendant. (I cannot in good conscience or with any degree of intellectual honesty state that traffic offenses and other class ‘c’ offenses are the same as they are punishable by fine only and most can be readily expunged upon completion of a deferred adjudication probation.) However, the interests of the “system” seem to be outweighing the interests of the interests of the defendant.

I am an officer of the Court. I do owe an ethical duty to the system. But surely, my first duty must be to the client and their interests.

It is, in my opinion, a side-effect of this increasingly ‘cookie-cutter’ approach to the criminal justice system is that the defendant, the very person with whom we are charged (and hopefully compensated by) with representing, no longer treats with respect, fear, or awe the very system that has them in their thrall.

At its essential core, the criminal justice system is in the business of curtailing a defendant’s liberty. From the time a defendant is charged with a criminal offense, his or her freedom, his basic right to go where they choose when they choose is curtailed to one degree or another. At a minimum, they are commanded to appear in Court (or at least the hallway) for some period of time until their cases are “handled.” At worst, they are confined while their case is pending. The most common outcome of a criminal case fully involves the curtailing of a defendant’s liberty (as 95% of all cases resolve in plea bargains).

And yet, at least in my practice, the average defendant treats the criminal justice system with an alarming degree of disrespect. Is it a function of society? Probably. On the other hand, at least some of the cause can be attributed to the lack of formality that is present (at least at the Dallas County Courthouse).

I don’t know what the answer is. And I’m intellectually honest enough to admit that maybe this is just a pet issue of mine that few, if any, share. At some rate, however, I feel as though some of the really important elements of the practice of law and the representation of a defendant’s rights are being infringed, if not suppressed, by this lack of formality.

Formality is slow. Formality is often cumbersome. Formality often scares away those who are uncomfortable with being told where they are to stand, and how the Courts are to be addressed, and that there are specific rules to be followed. But formality protects. Formality ensures that rights are considered. Formality ensures that the defendant is made aware that the system takes their rights seriously, and that so should they.

Prior to the virtual democratic sweep of the Dallas County Courthouse, Governor Good-hair (Rick Perry) had appointed Becky Gregory to the vacant 283rd District Court. While I had strong disagreements with some of her rulings (as she was, in my ever-so-not-humble opinion ridiculously State’s oriented), I actually enjoyed the ‘federal’ approach that she took to the court. Was it slow and cumbersome? You bet. But, for that brief moment in time, the client knew that the judge, the prosecutor, and their attorney had all of their attention solely focused on their case. Did it have any effect on the defendant’s attitude? Probably not, but who can say?

The practice of law is not a manufacturing process. It should not boil down to “insert tab A into slot B.” It should be formal. It should be important. It should be slightly . . . mysterious.

However, in the words of Dennis Miller, “hey, I could be wrong . . . “