Commentary: Sometimes it is personal: Reflections of a criminal attorney

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When most of us graduated from law school and started out as attorneys, we were charged with a sobering task — to uphold the law. We were taught that no one principle of the Constitution was more important than another, and that because something is popular does not mean that it is right. We should fight for what is right, not for popularity.

I spend part of my life as an unpopular criminal defense attorney justifying my existence to people that I meet. Fortunately, I have a pretty thick skin and am not easily offended. When I was confronted at a recent awards ceremony with the comment, “Congratulations on the award, but I really disapprove of what you do,” I simply asked the woman, “If you, one of your family members, or close friends was either wrongly accused of something or in trouble with the law, who would you call?” That response ended the conversation.

I don’t expect this woman to either like me nor approve of what I do. She is an average person who is upset with the amount of crime she sees on the street. She does not want anyone in her family to be the victim of any of those crimes.

But what does trouble me is hearing James Bopp, Jr., the attorney representing Supreme Court Justice Michael Gableman, tell the world that my job is “subverting” the legal system, putting criminals on the street and finding loopholes for despicable people. Apparently, that is how Justice Gableman honestly feels about criminal defense lawyers and what they do.

Last time I checked, the Constitution made clear that we are all entitled to be treated equally by our government, regardless of our character, background or the deeds we may have done. Just because someone is accused of a crime does not mean that the Constitution does not apply to him or her. That is one of the core principles that makes the United States such a unique country.

Normally, I would not be one to get too upset when I am accused of finding “loopholes.” It is part of the job description. I take it in stride and move on. Besides, these “loopholes” are almost always rooted in the Fourth, Fifth and Sixth Amendments of the Constitution and established by other statutory provisions. In the search for “loopholes,” I am acting as a “law enforcement officer” as much as any prosecutor or police officer. Defense attorneys are there to make sure the law is not broken.

But the Gableman situation is clearly different from my run-in with the woman at the awards ceremony. The Criminal Law Section of the State Bar brought Bopp’s comments to the attention of the Board of Governors, and at its last meeting on Dec. 4, 2009, the Board unanimously approved a public position regarding the right to counsel and its importance in the legal system.

What I found most troubling about Bopp’s comments is that they were made on behalf of someone whose stated job description is to be fair and impartial to all litigants that come before him. For a person in that position, these comments are unacceptable and frightening. The Board’s position is appropriate, but does not go nearly far enough.

I am not trying to take a political potshot, make a personal attack on the Justice or insult the representation that Attorney Bopp provided his client. I am simply raising a legitimate concern that all attorneys should be able to appear before an impartial court. A Supreme Court Justice is a person we trust to make an honest reading of the law and be the final word in this state on all legal matters. How can someone who has such an obvious and disgusting disdain for an entire group of litigants be fair?

The law applies equally to all, and any lawyer who has a morsel of integrity in him knows and fervently believes this. We, as a group, should not tolerate anyone who does not share this opinion.

Along with my charge in law school to uphold the law, I learned something else from a wise and respected professor that has application and meaning here. Marquette University Law School professor Greg O’Meara once said that when a criminal defense lawyer wins a case for his client based on a legitimate Constitutional argument, he will be accused of having found a loophole, but when any other lawyer uses a creative challenge to a Constitutional issue and wins his case for his client, it is just good lawyering.

From the public, we can expect this attitude. From the bench, we cannot.

Theodore J. “TJ” Perlick-Molinari is an associate with the Birdsall Law Offices S.C. in Milwaukee, where he has committed himself to the defense of people charged with serious criminal and drunk driving offenses. He represents Dist. 2 on the Board of Governors of the State Bar of Wisconsin. He can be reached at [email protected].