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Commentary: Wanted: litigators, not social workers

By: David Ziemer, [email protected]//April 19, 2010//

Commentary: Wanted: litigators, not social workers

By: David Ziemer, [email protected]//April 19, 2010//

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I recently attended a lecture at Marquette by former U.S. District Court Judge Mark R. Filip.

Among the things he said is that judges, however learned in the law they may be, have no special moral training. And that sentencing a defendant, unlike deciding an evidentiary motion, is essentially a moral judgment, not a legal one.

I found myself in agreement at the time, but now I’m reconsidering. The fault in Judge Filip’s analysis is that we don’t live in a moral society; we live in what the Danish author Henrik Stangerup called “the therapeutic society,” in his novel, “The Man Who Wanted to be Guilty.”

“What do I care?” you ask.

The problem is that when a moral society is replaced with a therapeutic one, and at the same time the courts eviscerate the “technicalities” that attorneys used to use to avoid their clients’ convictions, you take all the fun out of practicing criminal defense.

I am friends with many lawyers who proudly proclaim, “I’m basically a social worker with a law degree.”

But my best friends in the profession are attorneys who would like nothing more than to proudly proclaim, “I’m a litigator; not a social worker.” Unfortunately, they can’t do that and earn a living.

The plain fact is that nowadays, sentencing is the most important part of the vast majority of criminal cases. And in a therapeutic society, the social worker with a law degree is, as much as I hate to admit it, a better attorney for most defendants than a legal expert.

It is a disgrace that in order to keep food on the table, the best and brightest in the criminal defense bar must act like lowly social workers and pander to our therapeutic society during sentencing hearings, when they should be successfully suppressing evidence and avoiding convictions altogether.

Even if a criminal defense attorney fails to suppress the evidence in a drug case, he should be able to go to sentencing and make his recommendation to the judge based on the assumption that his client takes drugs because he likes to get high.

Instead, the attorney has to prattle off a lot of mumbo-jumbo about “self-medication.”

Hard-nosed criminal defense attorneys are being starved out of the profession because the system places more value on therapeutic judgment than legal judgment. And that’s a bigger crime than the one at issue in any case I ever tried (the key work being “tried,” not “performed social work for”).

I once had a client convicted of burglary or armed robbery or something along those lines. In the presentence report, it said he suffered from “PDU.” Neither my client nor I knew what that meant, and he insisted on knowing.

So before we could proceed with sentencing, I had to go dig up the Diagnostic and Statistical Manual of Mental Disorders, or DSM-IV, and look up the term.

It stood for “personality disorder – unclassified.” The client, quite reasonably, asked what that meant, and I replied, “It means you have a bad attitude.”

He was very satisfied with that response, because it was true.

The question is, why couldn’t the social worker who prepared the presentence report have just said that, rather than using gobbledygook from the DSM?

The answer is that to do so would be to acknowledge that people commit armed robberies because of moral failings rather than mental disorders. And when a therapeutic society replaces a moral one, calling a person’s action a sin and the result of free will is the only sin that’s left.

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