Zen and the Art of Indigent Defense

A long time ago, in a place that probably never existed but was nevertheless very far away, there were, or maybe there weren’t, two monks traveling through a forest, as monks long ago were wont to do. Soon enough, they came across a river with, of course, a beautiful young woman standing on its banks. “Kind sirs,” the woman mewed, plaintively, as women in stories like these are wont to do, “I find myself too weak to cross this river with my stereotypically delicate ankles. Would you be ever so kind as to help me across?”

The monks looked at each other solemnly. Both silently acknowledged that he had taken vows to never touch a member of the opposite sex, let alone hoist her by her petticoats, so to speak, across something as primeval and suggestive as this glistening waterway.  Suddenly, much to the younger monk’s poorly-suppressed surprise and horror, the elder monk lifted up the woman and carried her across the river without another word, depositing her safely on the other side.

Hours later, as the monks collected soft moss to sleep on, the younger monk finally spoke. “Hey- why in the world did you DO that? Do you know what kind of position that puts ME in? You know even better than I do what our vows are. I can’t believe you not only TOUCHED that woman, you carried her across the river! I’ve been trying to figure out why you would do that for hours now. I just don’t get it. What is wrong with you?”

The older monk looked at the younger monk, and I imagine that he permitted himself just a tiny glimmer in his eye when he responded, “Brother. Brother. I put her down on the other side of the river. Why are you still carrying her?”

I think about this story probably twice a week. I should probably think of it more often than that. It’s the kind of story that has a lot of different lessons in it if you unpack it, and I think some of them are particularly applicable to us, in this strange and sometimes equally fantastic land of indigent defense. I think we, even more than people in other professions, and even more than other lawyers, have to seek to be mindful and present, or we risk our clients’ lives.

The danger is that sometimes we don’t realize that we’re carrying an immense amount of weight around with us, and even if we don’t realize we’re carrying it, it is still weighing us down. Once, as a young lawyer, I stood next to a client halfheartedly arguing for him to be released from custody after a series of him failing to appear for court dates. “My client wants me to represent to you that… he really promises this time, you know, he won’t do it again…” You could practically hear the exasperation in my own voice. The truth was that I’d been summoned to court to do this hearing with no notice, having stood next to this client or someone like him a hundred times already, taken away from my precious office time that I never had enough of, that I desperately needed to catch up with the immense amount of stuff I needed to do for other cases. Cases where people showed up to court. 

The judge started haranguing the client, and I looked over at this man for a minute as the judge carried on. He was probably twenty years older than me, and he was relying on me to keep him out of jail. And he was terrified. And here I was, exasperated and casual. And all of a sudden my heart just sank and I realized what I had been carrying. I looked down and saw myself knee-deep in mud.  I have to put down the weight of all those past cases, past clients, even the behavior of this guy in the past, his prior failures to appear.

This guy didn’t give me too many cases. The Government did. This guy didn’t mean to make my day a little more difficult. That was the State. This guy is terrified he’s going to go to jail and his lawyer is just about to yawn. Even if there’s nothing I can say that will sway the judge, it’s my job to try. It’s my job to not be anesthetized to the system to the point that this is not a big deal. This person is about to be thrown into a cage. Did you hear me?? This PERSON is about to be THROWN into a CAGE!  Does it matter what he did, even? This is NOT the answer! What about his mom, who relies on him for support? His kids? His freaking dog? Raise the alarm, guys, did you know the f-ing Government is caging people against their will???

If the judge wants to harangue him, if the judge wants to throw him in jail, at the end of the day, I might not be able to do anything about that, but there should be no doubt in anyone’s mind that I was on his side, fiercely and genuinely. 

Sometimes the blasé malaise comes in other forms. I know there are days and weeks where I look at a file and it feels the same as the last dozen cases I’ve handled with the same charge. Possession of a controlled substance, consent search, no outstanding legal issues, significant priors for similar drug-related charges. Driving While Intoxicated, clear reasonable suspicion for the stop, admission to drinking, high blood alcohol content. Tedium. Blurring clients together. It’s easy to do with a massive caseload of similar fact patterns.

Sometimes, when you start feeling this way, you mistake it for competence. “I’ve handled so many of these cases, I know exactly what to look for.” This is actually the opposite of competence, though- it’s tunnel-vision. We’re carrying with us all the prior experiences and expectations we have about certain types of cases, certain types of clients, and certain patterns of evidence. While it’s important we learn from our previous experiences, it’s also important we don’t become so conditioned that we can’t see the individuals we represent and their unique and distinct personal and legal situations and our unique and awesome responsibility to them.

We have to do a lot of lifting in this job. We carry people we never thought we’d carry over things we didn’t see coming. We only make the job harder and more hazardous to the next person we have to pick up when we never put the last one down. Brother. Brother– put her down.