Wednesday, February 24, 2010
When salt loses its saltiness, prosecutors, and emotion
I think life should be fully lived, and a person should allow him or herself a full range of emotions-- that is, we are at our best and most meaningful when there is real joy, real hurt, and recognize both the tragic destruction and stunning beauty around us. With our eyes wide open, the blues can be cobalt and the greens like a lush field in spring. I am not suggesting that anyone change their lives to generate emotion (that can be incredibly destructive), but simply that they let themselves feel the emotion that goes with the events of their lives. (I suspect this line of thought comes from the Suzanne Vega video I posted a few days ago, where she tries to smile while singing a profoundly sad song).
Prosecutors have, as their principle task, the management of tragedy. When I won a conviction, there was something profoundly sad about that verdict-- it would not undo the crime, unharm the victim, and simply marked another stage in a tragic life probably bound for more harm and pain. To do the job well, though, one must allow himself or herself to really see that tragedy-- to look in the face of a victim, and know the pain in the families of defendants. It is emotionally draining to do this, but to avoid the emotional aspect of the underlying tragedy is to fail to see the whole of the story. Importantly, the prosecutor must both see the tragedy but often let it continue-- must do her duty and ensure that someone is incarcerated. I did it many many times, and it was the right thing to do. Still, it was a task that took me to dark places, and that made it all the more meaningful.
Over time, many prosecutors cope with the tragedy by developing mechanisms to take the emotional edge off. Some use humor, others vilify all defendants, and some use one to do the other. For others, it becomes a 9-to-5 task, and the defendants and victims are reduced to numbers (a reduction made easier by things like the sentencing guidelines, which literally reduce a defendant to nothing more than numbers).
There is a cost to a system of career prosecutors, and one might be suggested by the question Christ asked: "What is salt when it has lost its saltiness?" (Matthew 5:13) What is the job of managing tragedy when it no longer seems tragic?
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I have my first capital appeal coming up.
I am so conflicted. I think I've rationalized it away by remembering that the people of Texas are my clients, that I am bound to represent them in the courts of law, and the people of Texas have decreed that they wish for capital punishment, whatever my personal feelings on the matter.
At a very logical level, that is both convincing and rational. On another level, it rings hollow and emotionally invalid. At base, ethically it feels correct, at least, I can say that I would universalize the maxim that all lawyers ought to represent their client's interest and not their own in court.
I am so conflicted. I think I've rationalized it away by remembering that the people of Texas are my clients, that I am bound to represent them in the courts of law, and the people of Texas have decreed that they wish for capital punishment, whatever my personal feelings on the matter.
At a very logical level, that is both convincing and rational. On another level, it rings hollow and emotionally invalid. At base, ethically it feels correct, at least, I can say that I would universalize the maxim that all lawyers ought to represent their client's interest and not their own in court.
Osler:
Found this interesting...
http://thesportsbizblog.blogspot.com/2010/02/law-school-buys-naming-rights-to-minor.html
Found this interesting...
http://thesportsbizblog.blogspot.com/2010/02/law-school-buys-naming-rights-to-minor.html
# posted by 
: 10:08 AM
: 10:08 AM
Thanks, Professor, for this discussion about the effects of criminal law practice on its practitioners. Prosecutors and defense attorneys go through the same set of coping mechanisms to deal with the tragedy faced everyday. Some apply emotionless logic, as Lane suggested; others laugh it away; still others learn to shutdown the emotional response in order to avoid the personal toll empathy can pile on a person dealing with never-ending flow of tragedy. If the attorney opens herself to empathy, she will be quickly buried under its weight.
I find myself doing all of the above. The most destructive to me and my family is the tendency to shut down the emotional response. It has taken a lot of practice to turn it off; and, unfortunately, turning it back on isn't like flipping a light switch. About a six months ago I realized that I had shut my emotions off from those closest to me. Nothing was a deep cobalt or a vibrant green anymore.
I'm not sure how to climb back out of it while still facing the tragedy inherent in my rape or violent crime cases. But at least I know that I can't be an emotionless attorney and still expect live as a balanced person. If I can't find the balance, then I know it will be time to get out. I'm not willing to let the attorney overcome the person.
Man, this kind of feels like therapy. Can I get a hug?
I find myself doing all of the above. The most destructive to me and my family is the tendency to shut down the emotional response. It has taken a lot of practice to turn it off; and, unfortunately, turning it back on isn't like flipping a light switch. About a six months ago I realized that I had shut my emotions off from those closest to me. Nothing was a deep cobalt or a vibrant green anymore.
I'm not sure how to climb back out of it while still facing the tragedy inherent in my rape or violent crime cases. But at least I know that I can't be an emotionless attorney and still expect live as a balanced person. If I can't find the balance, then I know it will be time to get out. I'm not willing to let the attorney overcome the person.
Man, this kind of feels like therapy. Can I get a hug?
When I find my salt is losing its saltiness, I try to make time for myself to listen to the 90's pop, eletro-dance masterpiece What is Love? (Baby Don't Hurt Me) by Haddaway.
When I find my salt is losing its saltiness, I try to make time for myself to listen to the 90's pop, eletro-dance masterpiece What is Love? (Baby Don't Hurt Me) by Haddaway.
Here's a question for the Razorites out there (and if this is hijacking the thread, my deepest apologies). I'm taking a week of sexual assault prosecution training in Washington, D.C. right now. The big thing we're learning is offender-focused prosecution - that is, don't focus on the actions of the victim. Instead, focus on the actions the offender takes and how he takes advantage of the people who become his victims.
It's pretty good stuff, but I've been troubled by some of what I've heard from the faculty. For example, more than a few instructors have talked about "representing the victim" and "making sure the victim has someone to speak for him/her." I'm not saying that the prosecutor shouldn't empathize/sympathize with a victim - not at all. However, as a prosecutor who represents all of society, not just one person, I'm getting really troubled by this "represent the victim" talk. Isn't that the job of the victim advocate, not the prosecutor? Does anyone see a problem (or potential problem) when a victim refers to the prosecutor as "my attorney" (as one of the victims in a training video said repeatedly today)? Does anyone think that if a prosecutor starts to empathize/sympathize with a victim too much or starts to "represent" the victim instead of society at learge, he or she starts to cross the line?
Any and all advice is welcome (especially from the fellow criminal law practitioners out there). Again, apologies if I'm hijacking the thread...I'm hoping it's somewhat appropriate to the original subject matter.
It's pretty good stuff, but I've been troubled by some of what I've heard from the faculty. For example, more than a few instructors have talked about "representing the victim" and "making sure the victim has someone to speak for him/her." I'm not saying that the prosecutor shouldn't empathize/sympathize with a victim - not at all. However, as a prosecutor who represents all of society, not just one person, I'm getting really troubled by this "represent the victim" talk. Isn't that the job of the victim advocate, not the prosecutor? Does anyone see a problem (or potential problem) when a victim refers to the prosecutor as "my attorney" (as one of the victims in a training video said repeatedly today)? Does anyone think that if a prosecutor starts to empathize/sympathize with a victim too much or starts to "represent" the victim instead of society at learge, he or she starts to cross the line?
Any and all advice is welcome (especially from the fellow criminal law practitioners out there). Again, apologies if I'm hijacking the thread...I'm hoping it's somewhat appropriate to the original subject matter.
# posted by : 9:14 PM
: 9:14 PM
Campbell, I prosecute DV crimes on a daily basis. In that, and all other forms of crime, the story cannot be about the victim. The victim is not your client; you will have a wonderful staff of crime victims' advocates in your office that will do that. They will be there representing the victim's interest. The best thing you can do for the victim is secure a conviction, and to do that, you have to tell the jury a story about the defendant, the bad guy. You are given limited time to present that story through testimony, and since the only relevant evidence is that evidence which tends to make elements of the crime more or less likely, the character of the victim doesn't fit that bill.
Make your story about how bad a person the defendant is, not how good a person the victim(s) is/are. It won't always work, but I've never yet had a victim come up and tell me that they were sorry they went through it. Even when I've lost, they felt like they had a chance to face their abuser in court, and to confront him or her in public.
And I do think this is related to the subject matter: I won't take a case to trial unless I believe the defendant has done something to warrant that kind of censure. A lot of times, especially with domestic cases where the parties want to reconcile, a few months of court-mandated counseling to get help with alcohol, drugs, money issues, and responses to anger will do better in the long run than a half-a-year trip to jail.
Make your story about how bad a person the defendant is, not how good a person the victim(s) is/are. It won't always work, but I've never yet had a victim come up and tell me that they were sorry they went through it. Even when I've lost, they felt like they had a chance to face their abuser in court, and to confront him or her in public.
And I do think this is related to the subject matter: I won't take a case to trial unless I believe the defendant has done something to warrant that kind of censure. A lot of times, especially with domestic cases where the parties want to reconcile, a few months of court-mandated counseling to get help with alcohol, drugs, money issues, and responses to anger will do better in the long run than a half-a-year trip to jail.
Lane,
Thanks for your perspective - you've tried a lot more of these types of cases than I have (most of what I see is absence without leave, desertion, and low-level drug cases), so I really appreciate your thoughts. A follow-up question - how easy/difficult has it been for you to work with jurors in DV and sex assault cases? Do you run into jurors who want to play "blame the victim," or have you worked with more open-minded panel members (military term for jurors)?
Thanks for your perspective - you've tried a lot more of these types of cases than I have (most of what I see is absence without leave, desertion, and low-level drug cases), so I really appreciate your thoughts. A follow-up question - how easy/difficult has it been for you to work with jurors in DV and sex assault cases? Do you run into jurors who want to play "blame the victim," or have you worked with more open-minded panel members (military term for jurors)?
# posted by : 7:31 PM
: 7:31 PM
Campbell,
It is a little difficult for me because of the culture I live in. Border town culture is very patriarchal and "machismo," so particularly violence against women gets looked at as "not a problem." Lots of jurors will blame the victim, and to counteract that, I try and use my procedure as much as possible. Things like rape shield laws and 404(b)/608 are essential.
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It is a little difficult for me because of the culture I live in. Border town culture is very patriarchal and "machismo," so particularly violence against women gets looked at as "not a problem." Lots of jurors will blame the victim, and to counteract that, I try and use my procedure as much as possible. Things like rape shield laws and 404(b)/608 are essential.
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