ATTORNEY PAUL A. KSICINSKI 414-530-5214
ATTORNEY PAUL A. KSICINSKI
TOP 100 WISCONSIN CRIMINAL DEFENSE LAWYER
​414-530-5214
  • Home
  • References
  • PEER ENDORSEMENTS
  • PAST CASES
  • Blog
  • Contact
  • KNOW YOUR RIGHTS
  • How to deal with police
  • Practice Areas
  • About
  • Criminal Law Links
  • News

Discussion of current legal issues

Henry Nellum case selected by USA Network as a compelling homicide trial to keep an eye on in 2018

Button Text

Wanted: litigators, not social workers

4/14/2017

0 Comments

 
Picture

BY: David Ziemer
http://wislawjournal.com/blog/2010/04/19/commentary-wanted-litigators-not-social-workers/
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.

0 Comments



Leave a Reply.

    Author

    These are reflections I have had about our criminal justice system.  Some of it may make sense, some of it might not.

    Archives

    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    October 2021
    September 2021
    August 2021
    July 2021
    June 2021
    May 2021
    April 2021
    February 2021
    January 2021
    November 2020
    October 2020
    August 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    January 2020
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    June 2019
    May 2019
    April 2019
    March 2019
    February 2019
    January 2019
    December 2018
    October 2018
    August 2018
    July 2018
    June 2018
    May 2018
    April 2018
    March 2018
    February 2018
    January 2018
    December 2017
    November 2017
    October 2017
    September 2017
    August 2017
    July 2017
    June 2017
    May 2017
    April 2017
    March 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    May 2016
    April 2016
    March 2016
    February 2016
    January 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    January 2015
    December 2014
    November 2014
    October 2014
    September 2014
    August 2014

    Categories

    All

    RSS Feed

Powered by Create your own unique website with customizable templates.