July 25, 2014

Stephen Gillers' Unfortunate Choice of Words

Stephen Gillers is a widely respected expert on the legal profession and a go-to person for journalists looking for a quote on lawyers' conduct. For some reason, the New York Times sought out a soundbite from Gillers about the increasing number of civil rights lawsuits concerning unjust convictions and Gillers was careless in his response:
It’s like ants at a picnic. All of a sudden the food’s on the table and here they come.
It's an unfair statement that insults civil rights lawyers and greatly diminishes the grievous harms at issue in these suits. I suspect Gillers, a longtime professor at NYU's School of Law, regrets his choice of words.

It is certainly true that when some lawyers find a new niche that has the potential to be lucrative, others take note, and before you know it, there's a flood of lawyers who are suddenly expert in this new area. That is not what is happening here. Not by a long shot.

Rather, decades of prosecutorial and police misconduct have begun to come to light. As a result, it is becoming increasingly common to see cases like those of David Ranta, Jonathan Fleming, Roger Logan, etc., where innocent men are freed after losing many years of their lives to wrongful convictions and imprisonment. It is not a new area of law or a change in jurisprudence that spurred the lawsuits filed by the Central Park Five or Jabbar Collins; it is the growing recognition that our police and prosecutors have far too often convicted the wrong men, through laziness, ineptitude, or worse, deliberate deception.

What we are seeing now are the consequences of years of unconstitutional and entirely indefensible conduct, and the demands by the people injured for a measure of justice. 

Gillers' comment seemingly equates the lawyers and their clients with old-fashioned shysters who put a neck brace on their clients and push them into courtrooms in wheelchairs for theatrical effect. As though we are all Saul Goodmans looking for an easy buck or ambulance chasers who spend our spare time handing out cards at funeral services, like Paul Newman in The Verdict.

In fact, these are often very difficult cases to pursue and win. They can take years of time and require tremendous amounts of money, all while the lawyers are working without a fee to free the client or persuade a court that the conviction was brought about through deliberate misconduct. The Times wrongly suggests that the City of New York cannot wait to throw money at plaintiffs in these cases. This is a gross oversimplification. Yes, in a few high-profile cases, the new administration has aggressively sought a settlement. I can count these cases on one hand and have a finger or two left over. The vast majority of cases are proceeding along in the same slow, highly contentious manner as before.

Reading Gillers' comment reminded me of an episode from years ago. I used to share a suite with two criminal defense attorneys, both of whom were very experienced and very good. One of the attorneys happened to be handling several unrelated cases that involved the murder of infants or toddlers. He was interviewed by the New York Times, and said something like, "The thing about these dead baby cases . . . " It was an unintentionally insensitive comment by a lawyer who momentarily forgot who his audience was. He regretted the comment the instant he saw it, but of course by then it was too late.

I would like to think that Gillers read today's article and flinched.

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