Monday, April 21, 2008

LAWYERS: Who Are YOU pulling for?

Now that the dust has somewhat settled in the contempt flareup last week, I think it only appropriate to assess the winners and losers of the spectacle that was the Reposa contempt hearing.

As I sat in the courtroom during the hearing, I couldn't help but think that I was watching a rerun of the movie Animal House, where the unconventional fraternity was placed on "double secret probation" and subjected to a "discipinary hearing" presided over by Dean Wormer and prosecuted by a preppy Greg Marmalard and fascist-in-training Doug Needlemeyer. I'll let you decide what characters fit who the best. The only missing scene was the persecuted subjects leaving the room humming the national anthem. With that in mind, here in my opinion, are the winners and losers of this latest fiasco:

LOSERS

THE COUNTY ATTORNEY'S OFFICE: Never have I witnessed a proceeding that demeaned the process and so many people in one fell swoop. The exaggerated formality of a hearing that could have been over in 45 minutes was stretched to a galling 5 hours due mostly to the irrelevant droning on subjects unconnected to a charge of contempt. From the introduction of "ads", to the State Bar website information, to the cross-examination of witnesses whose only contribution was a steady diet of hearsay, it resembled a sham. If that was a good use of county resources, Lord help us.

ADAM REPOSA: Reposa succeeded in rallying the Defense Bar against his behavior with the sheer acts of defiance and arrogance which mark his style. He is a lone wolf in his tactics and his peers reject him because of it. He made matters worse by overruling his lawyer and testifying. He proved the theory that a lawyer who represents himself has a fool for a client. He made his bed and some would agree that it was time to sleep in it.

THE CRIMINAL DEFENSE BAR: Nowhere was the hypocrisy screaming out more than the behavior of the Association. In an organization that penned its name to a letter protesting the ICE office in the jail and other various endeavors, it couldn't bring itself to protest the absence of due process to one of its own. As many of our violent clients walked out of jail on probation with treatment and counseling as recommended, a criminal defense lawyer was looking at enough jail time to ruin his practice. Had you substituted another lawyer for Reposa, the Association probably would have acted. It was an exercise in picking and choosing support depending on who was popular, and looking the other way on the principles involved.

WINNERS:

THE COUNTY ATTORNEY'S OFFICE: In the public's eyes, the CA was only doing what had to be done. Criminal Defense lawyers are generally not popular, especially those accused of lewd acts in public. It was a publicity coup for the County Attorney's Office. And for an elective office, nothing brings home the votes more than a victory over an unruly lawyer.

ADAM REPOSA: They say that any publicity is good publicity for people in this business and Reposa has made the best of this. In addition, an astounding 90 day sentence could not have rallied more people in his corner if he tried. Even if people rejected his behavior in the Court, the 90 day banishment was over the top by any standard. The sympathy factor prompted by the sentence overshadowed the contempt finding itself. He could not have scripted it better.

THE CRIMINAL DEFENSE BAR: While inconsistent in its efforts, the Bar has no obligation to support every cause. First and foremost is the preservation of the image and integrity of its membership. While Reposa was not even a member, some argued that the Bar should have at least protested the sentence. I was in the minority that the Bar should have taken some stance on this issue, but I was out-voted. If time passes and interest fades, the passive attitude of the Bar will have proven right. But if another crisis involving a lawyer surfaces, the passiveness may not prove to be the right formula and this sets a dangerous precedent. But for now, no action may prove to be the right action.

While discussions will continue about the merits of having a civil judge decide the standard of behavior of a criminal lawyer (don't they just argue about money and the occasional child custody case over there?), the real focus eventually should be on due process, violations, and what is an appropriate remedy. Ensuring consistency in enforcing the law and application of punishment is fundamental to what we do. When the rules of Animal House apply, we reject the axiom that we are a nation of laws, not of men. And at that point, we are all guilty of contempt in the eyes of the public.

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