In this era of admirable prosecutors, I still have a defense soul

Which is why I eagerly read a long piece of great journalism in a Sunday’s New York Times Magazine, “A Homeless Man Attacked Him. But Was There More to the Story?”, by Jesse Barron.

As soon as I absorbed the title, I knew the answer would be yes, and that the “more to the story” would be uncovered by a criminal defense lawyer.

Her name is Kleigh Hathaway, and she is a deputy public defender in San Francisco.

It’ll take you a while to learn about her; Barron gives us the public version of the story before Hathaway enters the saga as the lawyer for a defendant who is probably guilty.

Actually, “probably” is my word choice. Most people in this story “knew” he was guilty. And right there, in that previous sentence, is the distinction between someone, like me, who has a defense soul, and the average person whose immediate judgment is prosecutorial.

That’s kind, what I said up there about the average person. A person who does not understand the role of defense lawyers jerks his knee when hearing of a crime, and the jerk is in the favor of a prosecutor.

In the past number of years since the 2016 election, I’ve naturally found myself admiring the many prosecutors and ex-prosecutors who have held the fort of justice and democracy under siege until 2020, and now as they calmly and rationally ply their profession which is to defend the Constitution and the rule of law.

I love the workings of law and I love the lawyers who work it. Still, I’ve been aware and slightly amused that I’m listening avidly to and deeply appreciating, among others, Joyce Vance, Andrew Weissmann, Harry Litman, Neal Katyal, and Barbara McQuade, prosecutors all.

And, of course, I’ve been applauding Fani Willis, Alvin Bragg (whom I voted for), Merrick Garland, Jack Smith and Letitia James.

But I’ve never wavered in my sense that defense lawyers are actually the primary defenders of the Constitution. So I was glad to read about Ms. Hathaway’s fiercely focusedĀ  approach to defending her client.

The article is sort of a thriller; in pursuit of the facts, the truth, it ranges widely through many current myths and reality, exploded propaganda about homeless people, about San Francisco in particular, as a city with a notorious, but maybe exaggerated, homeless population, about the rage, the violence inherent in numbers of what many people would consider upstanding, responsible citizens.

Yes, I did absorb the human complexity in this story, even while I was warmed by Mr. Barron’s portrait of Kleigh Hathaway. Indeed, given my experience, her pursuit and questioning of all the evidence, her appetite for reading and interrogating every piece of paper she gets her hands on are exemplary of criminal defense lawyers. Her work on behalf of this client offers a lesson for anyone ignorant of or prejudiced against the role of criminal defense law in our justice system.

Kleigh Hathaway is not a private defense lawyer; she is a public defender, and in case you tend to purse your lips when you hear a needy defendant is being represented by a public defender, you should know that these lawyers choose public defense, rather than much more remunerative private practice. Defense law, not income, is in their blood.

Without attorneys like Kleigh Hathaway, our Constitution would be pocked with moth holes.




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