I was accused by an old friend the other day of getting soft and mellow. He blamed it on my psychoanalyst. You see, I spend four hours a week, mostly at a time when truly mellow folks are getting out bed, free associating about what crosses my mind. I’ve been at it for a couple of years now. There is no apparent end in sight. Those of you who have been reading this column for the past decade of so are no doubt unsurprised by this therapeutic turn.
But losing my edge? I hope it is not so. The great joy of the law, at least for a trial lawyer, is conflict.
No long ago I heard a law professor named David Wexler speak at a seminar on the law and mental health at the University of Connecticut Law School. I went to the seminar because I am desperate for information to help me better understand the folks I represent. I figured I might learn a thing or two about how to cope with grief, anger, fear and the other emotions that cripple a client. I’ve certainly learned a bunch about all that goes bump in the dark nights of my soul. How to see into the souls of others?
Wexler teaches at the University of Puerto Rico, and is the director of the International Network of Therapeutic Jurisprudence. I was so intrigued by what he had to say, I ordered several of his books while still seated in the audience using my trusty I-Phone and Amazon.
I am not sure what to make of this talk of therapeutic jurisprudence and specialty courts. I’ve long subscribed the view of the criminal process ascribed to Judge Michael Sheldon: trial is tactical nuclear war at 30 paces. What’s all this talk about programs, process and teamwork between defense, prosecution and the court? I read Wexler, and I find myself scrawling exasperated notes in the margin of the text: "What about the presumption of innocence?"
I first stumbled across the notion of therapeutic jurisprudence in the chambers of Vanessa Bryant when she was the presiding civil judge in the Litchfield Superior Court. A book bearing that title was prominently displayed on a table in her chambers. I suppose civil parties can and should join hands under the aegis of some therapeutic guru if they want to. But the criminal courts? Endowing the courts with therapeutic powers? That reeks of the sort of paternalism in which social workers rule.
On those few occasions in which I have wandered into the Hartford Community Court, I have been shocked. On a first visit to court, it is not uncommon for a defendant to be offered community service of some sort before the merits of the underlaying allegations are even tested. There seems to be a mad dash to enroll the everyone into some sort of supervised program as quickly as possible. Guilt is presumed in this court.
Offensive as I find the notion of defense lawyer as team-member in the therapeutic state, I am nonetheless reminded that many of the folks I represent are suffering. Some suffer from things that led them into the criminal justice system in the first place. Others are simply undone by the process. The criminal courts are a grueling, dismal sort of place. Therapeutic services are necessary. Good lord, I wear my analyst out with tales of all the woe I behold.
But here’s a conundrum presented by therapeutic jurisprudence: suppose the state has amassed evidence sufficient to convict a client. Suppose further that the client is suffering grievously. In that case, what role for the advocate? I was taught and trained to slash and burn. My mistrust of the state and its programs is deep. I lack the training to play at diagnostician and peacemaker.
Lawyers aren’t educated to play a therapeutic role. Tossing warriors and gladiators into the arms of social workers succeeds simply in yielding a club-footed sort of tango. For therapeutic jurisprudence to succeed, lawyers need a different sort of education, and, frankly, I am not sure how that education can be squared with such core constitutional values as the presumption of innocence.
Newly mellow or not, I am reluctant to exchange my cudgel for a couch. Therapeutic jurisprudence sounds like a great theory, but it is still in search of a method. So am I.
Reprinted courtesy of the Connecticut Law Tribune.