I am in the business of offering hope, but there are hopeless situations, cases in which there is nothing that can be done. Accepting that is hard for me, but it is far harder on the man or woman viewing me as their last best hope. They abide in their sorrow, while I move on to another case. I never hear the stars of the bar talk about hopelessness. The literature of the bar's elite is generally of the self-congratulatory sort, with boast of cases won, impossible odds bested.
But what do you tell a man serving what will undoubtedly be the rest of his life behind bars after a plea of guilty to the crime of shooting his unfaithful spouse to death? Long decades lie ahead, and sorrow and horror chase him through the years. He can hardly remember the killing fury, or the shots that felled her.
I was in prison the other day sitting across from such a man. He is open, candid, forthright, a gentle man well into middle age who thanks me for coming to see him. He worries about a fee partially paid, and shakes his head in wonder that his family, those who survive, have run off with all his money, leaving him alone.
Prtson visits are where a criminal defense lawyer decides what he is made of. It is easy to attack and play the Constitution's bad boy in open court. The courtroom is a theater. An experienced advocate knows his or her role, and knows where the edges of the stage are located. So long as everyone remains seated, the oration can be spell-binding, the cross-examinations can be devastating, but the roles and the rules remain more or less the same.
In the privacy of a cell, there should be no roles. That's where two people sit staring across the obligatory metal table, one a tangle of hope, anger and despair, the other, frankly, also a tangle of hope, anger and despair, but the parties rage about different things: the client is a vortex revolving around the hope for freedom, the lawyer tries to avoid going under with the client. The world of lawyer and client collide in these holding cells. It is a collision that reminds me of how much there is to lose in the world.
What to do when the law, the facts, the powers of imagination offer nothing? These moments define a lawyer.
The easy route is to seize illusion. Construct a target, no matter how fleeting it may be, and focus the client on the distant aim. Keep the prospect of failure is kept at bay, driven from the room. The grasping hand of a drowning swimmer can be avoided in this case, and there is no danger of being pulled under. In such cases, the fight is all. You rage and rail at the court. When the adverse ruling comes, you blame the judge, or the law, or the fates. This is the moral solitary confinement to which many lawyers condemn their clients.
Another course is to look the client in the eye and tell him there is nothing you can do. This is a far more frightening course that simply falling into the role of warrior. It requires meeting the client on the road leading to despair.
My client was charged with murder for killing his wife. He pleaded guilty to manslaughter with a firearm. He was sentenced to decades of imprisonment. Today he serves his time, an ordinary sort of man struggling with late-middle age health issues, worrying about his children, missing the wife he killed, and hoping some day to be free again. My job is to find a way to get him out of prison.
His first lawyer did a good job. He presented the best defense he could to what was a crime of passion. The client plead in reliance on what looks like sound advice. Sure, the case could have been tried before a jury. Perhaps a jury would have nullified the law and set a man free who acted in justifiable anger. But that was a risk my client chose not to take. There was no appeal to the guilty plea: There was nothing to appeal. I meet with the prosecutor, and he will not agree to modify the sentence. The law offers little to my client. A pardon is a long shot, but it is the only shot he has. It is a grim assessmnt and I shudder to deliver it.
So I deliver this news with fear and trembling. The client thanks me. He tells me about the consolation his faith provides. He seems relieved almost in ways I do not understand. I leave the prison feeling that I had at least faced a painful truth without illusion, but still spoiling for a fight. The sight of a gentle man wasting away behind bars troubles me. I know he is not the sum of his worst moment. I know he lost control for one moment and that moment has cost him everything. I drive home in sorrow over a criminal justice system that cannot see the cruelty it inflincts in the name of justice. I marvel that men can create hope even in the darkest places.