Schadenfreude, Irony, and The Defense Function [Update: Photo Added]

Prosecutors Lester Blizzard and Kayla Allen, however, asked Ellisor for life sentences to send a message to anyone who would drive while intoxicated.


Howard is an unsympathetic character. Because he is an unsympathetic character, it’s easy to send him to prison for life. Blizzard and Allen were arguing for general deterrence: “send a message.” But for the same reason that it would be easy to send him to prison for life—because he is an unsympathetic character whose experience is so far divorced from most of ours—sending him to prison for life is a particularly poor general deterrent. The message here is not, “if you drive while intoxicated the consequences will be severe,” but rather, “if you commit aggravated sexual assault of a child, get convicted, fail to register as a sex offender, get convicted, and then drive while intoxicated and kill two people the consequences will be severe.”

The judge listened to Blizzard and Allen and sentenced Jim Howard III, the defendant in that case, who had no prior DWI convictions, to concurrent life sentences for intoxicated manslaughter (second-degree felonies enhanced to first-degree felony punishment by prior sex-offense convictions). Howard will be eligible for parole in 2040, when he’s 60 years old, if he lives that long in Texas prison.

When the judge sentenced Howard to life in prison, he was not punishing him only for his bad act—driving a car after drinking too much—but also for the unintended and random consequences of that bad act. The difference between DWI and intoxicated manslaughter is nothing more than lousy luck; Jim Howard didn’t get life in prison because of his act, but because of the unforeseen consequence of that act, out of his control once he committed the act. His act would have been the same, and his culpability no less, if he had made it home safe.

Normal people (like normal dogs) have an innate sense of fairness: people should get what they deserve, and no worse. But normal people also seem to have an innate sense of retribution: people who do harm should be punished, regardless of their culpability. Retribution is what makes a child angry at the sofa on which he stubs his toe, and retribution is what makes the punishment for DWI with no injury different than punishment for intoxicated manslaughter.

I had a beer (beer—”proof that God loves us”—being a necessary component of philosophy) recently with a Real Live Professional Philosopher. I argued that determinism invalidates retributivism because retributive punishment for things beyond a person’s control is unfair. Why, he asked, should the impulse for fairness trump the impulse for retribution? If seeing people get no worse than they deserve makes us feel good, and seeing people who have done harm punished makes us feel good, why should one feeling be superior to the other? I don’t know the answer; it may lie in the fact that one of the reasons we have government is to restrain the private retributive impulse. But it is my sense that the natural personal retributive impulse is an unworthy motivator of governmental action. I’m not sure I can objectively justify it, but I think we are better than that.

Retribution would often justify harsher punishment than the other goals of punishment. So criminal-defense lawyers find themselves trying to keep people’s (judges’, jurors’, prosecutors’, complainants’, the general public’s) private retributive instincts from bringing our clients to greater harm in court. How, then, do we reconcile our own private retributive impulses with our mission of keeping the government from retributively harming our clients? Murray Newman does not understand.

Murray has a friend, a prosecutor, who recently got charged with DWI. Not everyone in the criminal defense bar responded with pious speeches about the presumption of innocence. This baffles Murray. It shouldn’t: this apparent contradiction is at the heart of what it means to be a criminal-defense lawyer.

The presumption of innocence exists and applies to Murray’s friend as much as to anyone: if he is punished for DWI when the government hasn’t proven its case beyond a reasonable doubt, that will be offend our senses of fairness. Any criminal-defense lawyer, called upon to represent Murray’s friend, would set aside personal feelings and fight like hell for him, or—if she finds that impossible—decline the case.

But there is irony here that cannot be ignored: not only did Murray’s friend faithfully serve for years the system that now has him in its clutches, but he also has, more than once, argued for harsh punishment in alcohol-related cases to “send a message.” When he has done so, he has hurt human beings. Did they deserve it? Murray and his ilk think they can tell; I’m not so sure, especially when the difference between a maximum of six months in jail and life in prison is—as in Howard’s case—nothing more than dumb luck. I think that knowing what a person deserves would require a godlike wisdom that no prosecutor I have ever met has had.

Blizzard and Allen thought that Howard deserved life in prison. I think they might well have been wrong. Right or wrong, Blizzard and Allen harmed Howard, as prosecutors harm human beings every day. They think—how could you do the job and not think this?—that the people they are harming deserve the harm. And they may be right; the harm they do may be justified … but some of the risk that they are wrong falls on them. If they are wrong, and there is Justice, there will be consequences.

Murray claims that he never took pleasure in the harm he caused those he prosecuted, and I can’t gainsay that. But there are more than enough prosecutors who seem to—who accept gold coins for life sentences, who go out to party after death sentences, or who otherwise add notches to their briefcase handles; who claim to have gone to law school “to put people in prison,” or who lie to send innocent people to death row—that those of us who have never put anyone in prison can be forgiven for seeing that taking joy in the harm they cause is more normal than Murray thinks.

But that’s beside the point, because the sense of fairness is one thing; the sense of retribution is another. Just as the presumption of innocence has nothing to do with retribution—the impulse to punish people for the harm they cause, regardless of desert—neither does the intention of retribution’s object (remember that toe-stubbing sofa).

Retribution is one of many dangerous things—prejudice, lust, avarice, wrath, envy, and so forth—in the dark corners of our minds. If we—human beings—pretend those things don’t exist in us, they will control us. More to the point, if we—criminal-defense lawyers—don’t well understand those things in ourselves, we can’t counteract them in judges, prosecutors, and jurors.

A criminal-defense lawyer might feel schadenfreude at a cop’s or a prosecutor’s unfortunate encounter with law enforcement; this is entirely natural.  When we feel it, we should note it, think about its roots, and not be ashamed: criminal-defense lawyers are allowed to have feelings, emotions, and even prejudices. We’re allowed to share our feelings among ourselves. Criminal-defense lawyers are even allowed to turn down cases because of our feelings. What criminal-defense lawyers must not do is give any defendant short shrift because of our feelings.

Murray’s very first commenter, in what is to me the most perplexing Godwinization of 2010, calls me “Hitler” and writes, “And, in the same breath, he would defend him if the money was right.” Much to the contrary, as much as I appreciate the tremendous irony of his arrest, I would love to see him beat the rap. It wouldn’t take money: if Murray’s friend for some reason asked me to, I would set aside any personal feelings or preconceptions and put my all into defending him.


Because anyone can spout platitudes about the presumption of innocence, but setting aside personal feelings to defend human beings in trouble is what criminal-defense lawyers do.

Some, like Murray’s cowardly anonymous commenter, will never understand this (which is why some prosecutors never amount to anything as criminal-defense lawyers), but someday, I hope, Murray will.

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19 responses to “Schadenfreude, Irony, and The Defense Function [Update: Photo Added]”

  1. Murray Newman may have his heart in the right place when he states “We’ve all had friends who have been arrested. Today, I had a friend who was arrested for DWI.”

    Reading his post, however, it seems to me that he is experiencing a moral dilemma or, perhaps more accurately, cognitive dissonance in attempting to reconcile his role within the criminal justice system (admittedly a cliched oxymoron). The transition from prosecutor to criminal defense lawyer is likely more difficult than Newman is willing to acknowledge. Hopefully, one of his colleagues from the criminal defense bar will have the wherewithal to remind him that it is not his heart, but his head, that delimits his professional role. While empathy is laudable, professional objectivity is ultimately for the client’s benefit. Representing a friend, family member, or even a firm colleague belies a conflict of interest and is fraught with peril.

    • I don’t think Murray would be fool enough to represent this friend. There are plenty of lawyers who would be better suited.

      The presumption of innocence doesn’t mean we pretend that the police always get it wrong. This would be as much an error—even with regard to our own clients—as pretending the cops always get it right.

      The presumption of innocence is a public rule, not a private one. Judges (including jurors) are charged with presuming, until it is proven otherwise beyond a reasonable doubt in court, that the accused didn’t do what he’s accused of. Others—including prosecutors, cops, and criminal defense lawyers—are not burdened with the requirement of presuming that our clients didn’t do what they are accused of.

      Sometimes our clients have done wrong; we know it, they know it, and we know that they know that we know it. This doesn’t stop us from effectively defending them. That there is no contradiction here should be apparent.

      Maybe it all circles back to The Question. I wonder what Murray’s answer is.

  2. In most crimes the criminal intent is ordinarily co-extensive with the harm caused. Felony murder and intoxicated manslaughter are two counterexamples where there can be a real disconnect between what was intended and the harm caused. But imagine a prosecutor who knows that the man he’s prosecuting is innocent but cheats his way to a conviction and a twenty year sentence. After ten long years the prosecutor’s crime is discovered and the defendant is exonerated and released from prison. Seems to me the prosecutor probably deserves at least ten years in prison, to make the evil of his crime be to him what it is to everyone else. Or does he deserve at least twenty, since that is the harm he intended to the innocent defendant? In this instance, harm-based retribution would actually be more lenient than punishment based solely on intent.

    “Retribution” can and should be directed at the actual criminal intent rather than the harm caused by it, in a measure proportionate to the harm intended. (Though I’m also all for using the fact that intended harm did not occur as an occasion for leniency and mercy.) You’ve defined retribution in an intriguing way precluding this, to mean punishment for harm abstracted from culpability, but I’m not sure that’s what retribution necessarily signifies.

    If not in retribution proportionate to the harm intended, where would we find the appropriate punishment for my hypothetical prosecutor? In other goals of punishment, like deterrence? How many years of imprisonment would sufficiently deter other prosecutors with similar inclinations from intentionally or recklessly sending an innocent man to prison for twenty years? Giving the prosecutor a fifty year sentence would presumably deter such prosecutorial misconduct more effectively than a twenty year sentence.

    All of this is a minor quibble with a very thought-provoking and illuminating post.

    • I’m not trying to define retribution as publicly practiced, but rather our sense of—or impulse toward—retribution, which in the public realm is often in tension with (and is best tempered by) our sense of—or impulse toward—fairness and proportion.

      In answer to your last question: specific deterrence, general deterrence, incapacitation and rehabilitation. Maybe even promotion of respect for the system. Yes, sometimes retribution will not call for a longer sentence than fairness might. But our retribution bone is not a moderating influence.

  3. One thing I feel is being overlooked is that photograph. Cover up the left half and it looks like Doc Brown from Back to the Future; cover up the right half and you’ve got a young Alex Trebek.

    I’m not sure what this has to do with criminal lawyering, but I felt like it needed to be addressed. Carry on.

  4. Mark,

    I’m not sure what your exact question is.

    But I think it is worth pointing out that in the criminal law business, there appears to be two different general styles of doing your job. There are those who look at the facts and the cases and realize that cases will be prosecuted and cases will be defended and there should be nothing personal about it.

    And then there are others who want to regard either the defense bar or the prosecution as some sort of Evil Empire for daring to think about performing their jobs. Prosecutors are evil freedom takers with active judges who are mere tools of the State. Defense Attorneys are a bunch of ACLU tree-loving hippies who would rather see blood running in the streets rather ever see anyone arrested by the State.

    You and I obviously fall into different perspectives on this. You have attacked everyone from “Judge Hanger” to “LIfe After Esquire” under this view and now you are enjoying the arrest of Lester. You do so publicly, and then you freak out because you aren’t universally loved in the blawgosphere.

    I’m sorry, but those prosecutors that bash you on my blog didn’t just wake up one morning and decide they didn’t like you. You talk crap about them individually and collectively and you insult their profession. You know that they cannot list their names on the blogs because folks like Jim Leitner reads these blogs and doesn’t want prosecutors commenting publicly, and then so you call them “Anonymous Cowards”.

    As I have told you before, you’re insulting them and then faulting them for not signing their names is no different than the cat who taunts the pit bull, because he knows the pit bull is chained up and can’t retaliate.

    As far as the issue of what my initial blog post was about, there is something very disingenuous about being a member of the defense bar who celebrates the arrest of someone just because they are a prosecutor. That’s foolish, and I’ll be damned if there isn’t old Mark Bennett justifying why the pleasure is there.

    You are certainly entitled to your opinions, but don’t be so outraged that others find you condescending and pompous and say so in response. I mean, seriously Mark, to my knowledge, you’ve never observed me in trial or otherwise. You have no grounds whatsoever to be making silly little insulting comments like “someday” I might be a good defense attorney. Or that even I wouldn’t be “fool enough” to represent a friend.

    I, on the other hand, have seen you in trial. And I’ve also seen you be “fool enough” to represent a friend. I don’t need your condescending remarks, and I don’t understand your need to build yourself up by bringing others down.

    But then again, you once analogized yourself to Alexander the Great, so what do I know?

    • Murray,

      You could be right. You’re not, but you could be.

      There are lots of ways to dichotomize lawyers. Here are a couple of other options:

      • those whose friendships with prosecutors lead them to do the wrong thing, and those who don’t;
      • those who need to think their clients didn’t do it in order to zealously defend them, and those who don’t.

      Your dichotomy doesn’t really distinguish you from me. I know that lots of prosecutors are freedom-takers of good will. Most of them aren’t evil. But they’re all still freedom-takers, they risk sometimes being wrong, none of them have godlike wisdom, and it wouldn’t hurt them to confront the reality of the damage they do in the name of “justice” or “the law.”

      You give your commenters the privilege of anonymity so that they can comment on the criminal justice system, and they abuse it by acting like malevolent children, betraying a lack of both intellect and of imagination. “Hitler”? Really? They’re afraid even to email me or accost me in the courthouse, so they snipe at me from the cover of darkness; from here it looks like I’m the pitbull and they are the pussies. I assure you that I’m not concerned about them “retaliating.” Even with all the other prosecutors who have left the Office and freed themselves from the Lykos yoke in the last two years, still they bitch only from the shadows.

      Your own reading comprehension fails you, replaced by what you think I said or maybe what you wish I said. You are by all accounts a good criminal-defense lawyer; I don’t question that. Someday, though, I hope you will understand what you claimed in your blog post not to understand. And I didn’t say “even” you wouldn’t be fool enough to represent a friend; you read that word in. Yes, I’ve been fool enough to represent a friend. I tried to get out of it, but I saw no other option—he was out of money and otherwise out of friends. Fortunately, it worked out well, but it was foolish, as well as dangerous, costly, and extremely stressful; and I wouldn’t do it again if I could avoid it.

      As for the arrest of your friend, I hope he gets Kelly Case or Grant Scheiner or Troy McKinney or one of our other DWI blood gurus on the job and beats the rap, but surely you can see (though you might not enjoy) the irony of the guy who argued for life in prison “to send a message” (since you mention that the person arrested is the person who made the quoted argument, a connection that I hadn’t expressed) himself being arrested for DWI. I confess that the irony gave me a frisson of pleasure. It’s not something I’m proud of, but I’m not ashamed either. It is—as is the point of my post—part of being human, and I think we do better to acknowledge it and move on than to pretend it isn’t so while platitudinizing about the presumption of innocence.

      (I analogized myself to Alexander the Great? In what context? In what sense?)

      • Let me add: prosecutors, think of anything I say here like you would think of lawyer jokes: offensive only to those for whom they are true. If you pay attention, you’ll see that I dedicate more cycles to bad defense lawyers, bad marketers, and bad judges than bad prosecutors.

  5. Did this post in 2011? If so, it deserves some consideration for blawg post of the year in 2012. I think you and I are very similar in that we are both very idealistic and committed to our belief systems, maybe even sometimes to the point of being ideological. I appreciate you fleshing out the feelings of guilt I sometimes have when, as a human being, I can’t always personally live up to my ideals. Sure, I can think that punishments have gotten wildly out of proportion to crimes, it didn’t stop me from literally wanting to kill the guy who smashed the window of my car and stole about $20 worth of crap out of it. The point is I hope that the state can be better than the basest instincts of its citizens, but that doesn’t mean I don’t have those instincts.

  6. There was a prominent member of the Defense Bar accused of assault with a deadly weapon. I got the feeling that some prosecutors, not all, took joy in that charge. On the other hand, I myself was arrested in July and the prosecutors seemed genuinely surprised and apologetic that I had that experience. My point is: to some degree, our feelings are based on the sense of justice or the lack thereof that we perceive may have been dealt with regards to our clients. If a prosecutor I thought much of in terms of fairness had been arrested, I would feel sad; to the contrary, if one I thought was a jackass had been arrested, I would think (to myself), “Maybe his perspective will change.” The experience in and of itself is sufficient, in my opinion, to change the way some go about doing their jobs.

    All of that said, the presumption of innocence is still a constitutional right. Quite frankly, that is a legal standard and not a personal or moral one. I can think as I want as long as I am not the judge or sitting on the jury. Some of the pious attitudes have got to go. I do not have adequate information to form an opinion in this case, but I have watched the news before and determined that I thought someone was guilty. That doesn’t mean I could not zealously defend them or set those personal feelings aside if I were on the jury.

    Mark, I can appreciate that your post draws a distinction between the criminal defense lawyer as a lawyer and the criminal defense lawyer as a person. We are human and we naturally feel the way others do when they hear things. That is no double standard, but rather a human one.

  7. Mark,

    People enjoy the suffering of others, whether we will admit it or not. It is quite clear, especially in the legal realm, that we have to humanize the righteous victim as deeply and as quickly as possible, while the individual accused is dehumanized just as quickly.

    People relish doling out human suffering, all the while allowing themselves to believe that what they are doing is righteous, but the other individual accused was cruel and monstrous. It is evident from the allowances in court that the legal system is leaning towards those that are against the accused with such things as victim ‘impact’ statements, ‘expert’ witnesses, and the like.

    As humans, we love our retribution. So much in fact that we are depressed somewhat when we ‘believe’ that the system has taken our rightful vengeance away from us.

    If this were not true, talk shows would never gain the ratings that you see them have currently. Nancy Grace loves her some vengeance!!

  8. Mark;

    It is always a pleasure to read such insightful and inspiring work. I take great pride in having your blog as one of my favorite,, along with Norm Pattis and some others,, the future of criminal defense is in the people who are not afraid to speak out and speak the truth.

    As a criminal defense lawyer in New Braunfels,, I see many injustices and throughout my years of practice,, I have met those “prosecutors who abuse their position and power” without consequences to those they ask the jury to kill.

    They do not have the power to kill,, they must ask others to do their dirty work. Unfortunately,, if you or I were charged with DWI,, we also would make the front pages and although we wouldn’t be fired,, we would reverse roles and understand the pain of our clients much better.

    I recently read Murray’s article and find it interesting,, a friend of his is arrested and charged with DWI,, so what? I’m more concerned with the no refusal policies instituted in Texas seemingly more and more common in every county in Texas.

    I am more concerned about the effects of the constitution being eroded than the effect of a personal attack on fellow attorneys. I am more concerned about the degradation of our rights than our personal feelings about each other.

    In the end,, we as defense attorneys are the last guard remaining at home against the deliberate taking of our freedoms,, more so than the press, radio or film.

    Perhaps we should stand together and argue that the taking of our blood is equivalent to the taking of our freedoms and work together,, not apart.

    In my book, anyone who says they are a criminal defense attorney,, should be a criminal defense attorney and not concerned about attacking members within our own camp,, but rather extending the hand to help those that are attacked.

    Anyway,, I wonder what will happen to the children of the next generation. We are really only one generation away from the obliteration of prejudice,, now it’s time to concentrate on the constitution for the freedoms of all who are living in this country.

    May each of you put aside your differences and work together,, for alone we are naked and nothing,, together we are a force to be reckoned with and respected.

    It is my dream that our freedoms will survive forever,, however I fear an inside attack will destroy all of us who are charged with protecting the rights of all persons regardless of race, color, religion or personal beliefs.

    I do not believe you are Hitler,, I know you are a kind caring and great lawyer.


  9. What’s not to understand here? Prosecutor argues for, and receives, a life sentence for a drunk driver who killed 2 people, on the basis that the Judge needs to “send a message” to anyone who would drive drunk. Same prosecutor apparently doesn’t practice what he preaches and is arrested for DWI. I get it–yeah presumption of innocence for sure–but the irony is, dare I say, delicious on some level. But why? It’s like the preacher who gets caught doing drugs with a prostitute, or the judge who metes out harsh punishment for drug offenders who gets arrested buying drugs with a stripper.
    But that’s a gut reaction. On another level, this (now former) DA, may have had some bad luck, maybe the just-2-glasses-of-wine-with-dinner kind of luck, or worse, maybe he has a drinking problem and is suffering from alcoholism. There, but for the grace of God, go I. I hope he beats the case and/or gets the proper treatment if needed.
    I get it but for the life of me I don’t know why this thought provoking discussion has to get bogged down in personal attacks.

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