On Angie Zapata and Criminal Defense

23Apr09

Although I bitch about it, there are days I’m really glad I do civil defense, not criminal defense. There are days I’m utterly grateful for the luxury of being just another private citizen with just another personal opinion I feel totally justified in voicing to anyone who will listen.

Lately, most of those days have included Angie Zapata’s case, which broke my heart when it broke and which breaks my heart even now, despite the fact that the jury came out better than expected. Juries don’t restore people to life, after all.

And yes, right now I’m reveling in the luxury – and it IS a luxury – of thinking that Andrade is a dangerous depraved violent piece of shit and LWOP is waaaay too good for him. I mean, fuck, he’s still got rights, truncated as they are: to appellate review, to habeas (my opinion that AEDPA is just about as depraved as Andrade notwithstanding), to 60(b) the shit out of his conviction. Meanwhile, Angie’s got…well?

But I feel I have to say something about the defense.

The first thing you must understand about a lawyer’s job is that we are not required to believe anything that comes out of our mouths. We are required to have a good-faith belief in the merits of our position, but that only means we have to believe the law really could work like we’re saying it should and that we’re not wasting the court’s time. That has nothing to do with personally believing what we’re saying.

(For instance: one of my most commonly-uttered sentences is “the plaintiff had a plain duty to read the insurance contract he signed.” Do I believe this is an accurate statement of Indiana law? Yes. Do I believe it will resolve an issue before the Court when I say it? Yes. Do I believe it? BullSHIT.)

A criminal defense attorney’s job is particularly difficult because, well, we’re required to defend criminals. Which, to the general public, means (a) we believe this depraved asshole is innocent, and/or (b) we believe what we say while trying to defend said asshole.

Neither one is necessarily true in any given case. In fact, I’m fair certain that Andrade’s attorney did not think Andrade was innocent – the “trans panic defense” (which private-citizen me is EVER SO GLAD failed, because what BULLSHIT law would THAT SHIT make?) pretty much excludes an innocence claim. But it’s precisely because that defense is so inflammatory that the second part is so important.

Criminal defense attorneys do not necessarily subscribe to the defenses they present. Got that? Criminal defense attorneys do not necessarily subscribe to the defenses they present. Our first duty is to our client, and we present the defenses that give our client a chance in cold hell. (And, before you blame criminal defense attorneys for that, imagine what it would have been like to have been accused of Angie Zapata’s murder while knowing you were innocent. Then tell me you don’t want a criminal defense attorney whose first duty is to you.)

I say this because I have had to think long and hard about whether I would have presented the “trans panic defense” in this case. My personal theory of criminal defense is that it is my job to make sure the game is played according to the rules, and that my responsibility can end once I’ve ensured the prosecutor has been forced to prove every element of his case beyond a reasonable doubt and within the confines of Constitutional fair play. But in this case, Strickland might have mandated me to present a defense I think is not only bullshit, but violent depraved misogynistic bullshit. Could I have done it? Would I?

I don’t know.

I’d like to think I’d go to the mat for a client’s rights no matter what he’d done. But this one…I don’t know. For one, I don’t know at all that the “trans panic defense” goes to the client’s Constitutional rights. If it’s in any, it’s in the “fair trial,” which is nebulous and which may not be a substantive right. Not that theorizing would make my decision any easier. (We will assume I’d have been court-appointed and could not have withdrawn. “I think my client is a violent depraved asshole and his only possible defense is violent misogynistic bullshit” is, usually, not enough to get a court-appointed attorney out of a case. Ironically, “my client’s sister’s roommate’s stepmother’s cousin is my hairdresser” might be.)

To be completely honest, and it sickens me, I think I would have put on the “trans panic” bullshit. I really do. Not because I felt any particular loyalty toward my client. In fact, I’d probably do it because I wanted him off the streets. My reasoning is that, without that “defense,” I leave a giant gaping hole in my case for Andrade to point to at every post-conviction phase and yell “ineffective assistance of counsel!” Strickland is a tough claim to make, but if he makes it? He’s out. And I find that much more scary and dangerous than my having to tell a violent dangerous misogynistic bullshit story to twelve random yokels whom I can only pray will see it for the violent dangerous misogynistic bullshit it is.

Yes, I would have to live with myself; and yes, I’d have to live with all of you exercising your First Amendment luxury to call me a violent dangerous misogynistic asshole attorney for the rest of my life. To close off a gaping appellate hole having nothing to do with the merits of the case or conviction? I’d take that hit.

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2 Responses to “On Angie Zapata and Criminal Defense”

  1. Excellent! This question was raised last semester (in regards to Casey Anthony, which is relevant to us since we’re in Florida, and that case has been on everyone’s mind since last year), and our professor said that the goal of criminal defense lawyers isn’t to protect the violent dangerous [misogynistic] assholes, but to give merit to the laws that protect them. Which sucks, as most people would love to see those kinds of people go out Roman-style, downed by lions, but that’s how it works. Like you said… what if you were on the stand?

    Time for my own private citizen privilege: I think this creep got exactly what should have come to him. For that I say, thank heavens for the defense presented against him, as he would have been put away at least for first degree murder (I would hope). Now to tack on that he’s a “violent dangerous misogynistic asshole”? Makes it that much sweeter.

    I’m sending this to M. We were talking about this a couple days ago, and he had a hard time reconciling with why he was charged with what he was charged. Maybe it coming from an attorney will have more merit than initially coming from a peon… erm, I mean, paralegal. 😉

    My thoughts to the Zapata family. 😦

  2. 2 Dani

    We were talking about this a couple days ago, and he had a hard time reconciling with why he was charged with what he was charged.

    My unhusband was actually confused for a few seconds as to why “disappointed expectation of sex” =/= “right to beat someone to death.” Until I put it in those terms.

    On the surface, it doesn’t read as a hate crime, until you realize that Angie was killed because she was born. I like to put it that way in part because, at one time, Britain had a law on the books that actually made it a crime to BE BORN Romani. Oops, sorry fellas! Should have crammed a few law books in here for me while I was busy developing lungs and eyesight! Jerkwads.

    By which I mean that any criminal behavior inflicted on a person because of who they were born is a hate crime. Such is my simplistic definition. Today.


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