Defense Attorney Jessa Lutz: They’re Not All Monsters
Jessa Lutz is a private bar criminal defense attorney in Madison, Wisconsin. She runs a two attorney firm, Frederick/Nicholson, LLC, with her business partner, Terry Frederick. Jessa attended the University of Michigan for her undergraduate studies and the University of Wisconsin law school. She is a member of the Wisconsin Bar, the Dane County Bar Association, and the Wisconsin Association of Criminal Defense Attorneys. Frederick/Nicholson, LLC provides all types of criminal defense both state and federal, including felonies, misdemeanors, and OWI/traffic offenses. Jessa has successfully litigated a number of criminal cases both at the pre-trial stage and through jury trials, winning dismissals and acquittals for clients in both felony and misdemeanor matters. In her spare time, Jessa enjoys art, books, strong ale, good music, and not being in a suit.
One of the (many) things I never expected when I was making the decision to become a criminal defense attorney was what an attraction I would be to the accountants and software developers of the world at cocktail parties. What starts out as quotidian, polite small talk quickly turns into one of those rubbernecking, scene-of-the-accident-stare type things. People immediately take a hushed tone, grab my arm, and, like we’re old friends, say “Can I ask you a question about that?” The inquiry that follows is predictable. People want to know one of two things. First, how is it that I can do what I do every day and live with myself, defending guilty people, trying to keep them out of prison? Second, is it, in real life, like it is on television?
To tell you anything at all about my job requires me, oddly, to be rather forthcoming about something rather personal—my sleep patterns. That is, am I getting any, or am I waking up every night, tortured with my role as the devil’s advocate? That whole moral dilemma, if you will. What keeps me up at night. I spend the better part of my day, every day, with criminals. These are people accused of doing reprehensible things. I tend to focus on sexual assault and domestic violence cases. Thus, I’m smack dab in the center of crying victims, wounded children, blood spatter, rape kits, photographs of bruises, stitches and missing teeth. You know when the limousine liberals at the aforementioned cocktail parties tell you that they’re for treatment, not incarceration for non-violent offenders? Yeah. They aren’t talking about my average client; at least, they don’t think that they are.
First off, let me start by saying this: I almost never know whether my clients are guilty or innocent. This is true for a host of reasons, but mainly because I don’t ask. I don’t ask because, first, whatever version of events a client tells me, I’m stuck with, since I can’t knowingly suborn perjury (meaning, if somebody tells me it was self-defense, and then later produces an alibi witness claiming the guy was 200 miles from the scene of the crime, the Bar has a bit of a problem with me putting Joe Citizen up on the stand to flat out lie to a jury) and secondly, it doesn’t really matter to me if they are innocent or not. That might sound strange to some people, but it’s true. To me, what matters is whether the government can prove their case against my client. I believe fervently in the constitutional safeguards put in place to protect the accused, in the right to a fair trial. I believe in the saying that it is better for ten guilty men to go free than for one innocent person to be convicted. Most of all, I believe the government should be held to their burden. If the government can’t show beyond a reasonable doubt that my guy is the one that did the crime, then he should be off the hook. Over time, I think every defense attorney’s focus shifts from innocence and guilt to strength of the evidence and what can be proven. It’s a natural progression.
I’d also note that innocent clients, as a rule, are particularly frightening. They’re the ones that I lose sleep over. If someone is guilty, and the evidence is strong enough to persuade people of that guilt, and the person has had a good, competent attorney that files motions and challenges things and forces the government to do its job; if all of the procedural barricades are put up and zealously advocated for, and then the person is still convicted, well, that’s one thing. To be the only person standing between an innocent man and a prison cell is another thing entirely.
A lot of times, it takes the better part of a year to get a case to trial—and that’s in Wisconsin, where, though we have a fair amount of crime, the system isn’t nearly as backlogged as it is in larger, more metropolitan areas. Somewhere like Cook County or South Central Los Angeles, I imagine the wait is much longer. Many of my clients come from poverty-stricken backgrounds and simply cannot afford to both pay an attorney and post their high cash bail. Thus, that year or so that they’re waiting for trial, they’re sitting in jail. Sure, that’s jail, not prison, but whoever tells you that sitting county time without work release isn’t hard time hasn’t ever been to county. Over the course of this time, clients become increasingly disconnected to family members and friends. Sometimes, I’m the only person they talk to that isn’t another inmate or a deputy for days, if not weeks. The lack of human contact, of a person’s utter inability to communicate with the outside world, with loved ones, makes me sick to my stomach when I think about it—even if they’re guilty. It tortures me if they’re innocent.
Since I can sometimes be the only person they get a chance to talk to, I get to know my clients fairly well. I get the lion’s share of their fears, their hopes and dreams, their feelings of frustration about the system. Through the hours and hours I spend hearing about their lives, I’ve come to the following conclusion. I think it’s worth nothing—and, feel free to completely write this off, because most people don’t believe me—-but my clients, by and large, are not monsters. They aren’t evil, despite being accused of doing some pretty evil things. Most of the time, they didn’t have a grand plan. Most of the time, there’s no plan at all. Said reprehensible action is undertaken through instinct, or substance abuse issues, or mental health issues, or learned behavior, or some combination of all of the above. Many of my clients lack significant formal education or job skills. They lack stable home environments, and any semblance of normalcy in their peer group. Many of them have said or written things that have made me stop and think about how I’m living my life. I’ve walked out of the jail on a number of occasions shaking my head at what a waste it is that we’re keeping a client of mine locked up. I’ve handled hundreds of criminal cases, and I can count on one hand the number of clients I’ve represented whom I would describe as being truly “bad” people. This is true in spite of what they may have done.
This is one of my biggest complaints about novels and television shows about the criminal—that there’s this dream of a great criminal mastermind. I’ve yet to meet one. I’m not saying they aren’t out there, but it is rare, at best. The twenty-two year old kid who decides to rob a convenience store to support his smack habit sure as hell ain’t it. Neither is the drunk guy at the party who grabs a girl’s ass without her permission.
Otherwise, the differences are more mundane. Most of us in real life aren’t nearly as good looking as the television stars that portray district attorneys and defense counsel on television. We probably aren’t as articulate, either—but I like to think I can string together coherent sentences for a closing argument. We certainly don’t seemingly effortlessly get “the real killer” to confess on the witness stand. (Though I do have a friend in the DA’s office who had one faint once, under the pressure of cross-examination). Public defenders, though undoubtedly overworked and underpaid, are often some of the best trial attorneys you’ll ever encounter—this is a far cry from the myth of the hapless PD who misses crucial evidence.
Something that is true? It gets wild. I’ve had clients dragged out screaming at the judge, had bizarre sexual videotapes show up as “evidence” in unmarked packages, uncovered sinister plots beneath the surface of seemingly simple arguments, and gone countless rounds at high volume, arguing my point. In criminal law, as compared to civil, many motions are made right on the spot, without time to research the issue thoroughly and brief it, so a lot falls on your wits and ability to think on your feet. The things that happen in my average work week don’t happen to other people. I’m in jails, prisons, mental hospitals, and the courtroom—and it is, at the end of the day, fascinating. I suppose that’s why I’m always asked about it at cocktail parties.
HOw do defense attroneys deal with the moral dilemma of representing people they know are gulity?
This post was excellent and really laid out for the lay person what our job is all about. We need more defense attorneys like you who both fight for, and sympathize with, their clients a/k/a citizens.
Thanks so much! I loved this discussion.
Hahahaha, Lee, don’t I know it now! (Also, don’t sell yourself short–I’m sure you’re worth whistling at, too. ;). )
Great story, Jessa. Gee, I hate to hurt your feelings, but the long-timers whistle at us, too. 🙂
Seriously, thanks so much for being here today. I do hope you’ll come back, soon. Everyone has a ton of unanswered questions.
Finally…a war story. Let’s see.
I’ll actually toss this out there, because it is, oddly, a very fond memory of mine. When I was still a law student, I spent the summer interning for a public defender’s office in a relatively small town in Wisconsin. My supervising attorney, who was a fantastic lawyer and all-around great guy, had pretty strong beliefs about throwing interns right into the fire. By 11:30 a.m. on my first day, he had handed me a turkey sandwich and autopsy photos to review. By 1:00 p.m., he sent me to initial appearance court. Initial appearance court, for those who don’t know, is where, after people are first brought into a jail, bail is set and the criminal complaint is given to the defendant. (The criminal complaint, in misdemeanor cases, acts as the “charging document”, which is what sets out probable cause to believe that the crime has been committed. In felony cases, the preliminary hearing establishes probable cause and the information is the charging document, but that’s neither here nor there.) Anyway, in this particular jail, the IA court is was attached to a long hallway with bars and plastic glass blocking out the cells, where all of the recent arrestees were sitting, waiting to be interviewed by the SPD and go make their initials, hopefully receive a signature bond (which means no cash needs to be posted before they are released into the community), and go home. Depending on the day, there could be one or two defendants, or there could be thirty. So, my supervising attorney sends me down here. I would pause to note the following. At this point, I have never seen a holding cell before. I have never had direct client contact. I have never appeared on the record. I am wearing a (quite lovely, I might add) brand spankin’ new suit that I purchased approximately 48 hours before. As you may have noticed from my bio pic, I am, for better or worse, a young blond chick. And the jail is packed. So I’m doing my Bataan Death March down this long hall, and the guys in the cell blocks start whistling at me, yelling the “hey baby” and etc. (I pause again to note that this is not a self-promoting story about my relative attractiveness–when you’ve been sitting in the drunk tank all weekend with a bunch of other dudes, more or less any woman likely looks good to you.) In my head, I’m thinking to myself “Don’t turn around and run. Do not cry. Keep walking, Lutz. Keep walking.” I’m getting no love from my supervising attorney, who is rather bemusedly watching this whole scene, probably to see what I do next. The taunts are getting louder and louder. So finally, I drop my briefcase, blow kisses, and shout back at the group of whistlers. I may or may not have added an ass shake for good measure.
You’ve never seen a cell block shut up so quickly.
After that, I interviewed my first client (obviously under supervision, as I was not yet licensed) and made my first appearance on the record. I’ll never forget saying my name for the first time–it sounded foreign. I probably stuttered, but I got it out. (The guy got out, too, in case anyone was wondering. The charge? Lewd & lacivious behavior for having sex in a yard.)
That was my introduction to the world of criminal defense.
Jessa & Lee,
Great blog and discussion today.
How to become an expert witness is actually a pretty complicated question, because a lot of it depends on what type of expert you’re looking for/looking to call.
(Sorry for the delay on this, by the way…I got a phone call that I had to take. I’ll probably check things for the next couple of days, as well, so feel free to fire off additional questions if anyone has any.)
If it’s a psychiatric witness of some type, then typically, the person would need to be board-certified and provide a CV that indicates what training they’ve had that is specific to what they’d be testifying about at trial. This is similarly true with medical experts, SANEs (Sexual Assault Nurse Examiner), and the like.
If the expert is more scientific, then the introduction of the testimony is going to hinge on whatever applicable state law applies to the admission of such evidence. Some states have more lax standards on what constitutes scientific evidence than others. Wisconsin is somwhere in the middle in terms of how much testing/science/background is required before someone is qualified to be an expert on things. Defense counsel can, and should, challenge whether or not the science is legit before letting it into evidence. Here, for example, a big issue in recent years has been the reliability of eyewitness identification. There are a few sociologists that are doing the circuit court thing, testifying to what makes for good IDs as compared to shaky ones (cross-racial IDs, in particular, have come under fire of late).
All right–in no particular order, answers to questions and a war story.
With regard to the state v. federal cases, yes, there is a distinction. Using Wisconsin as my example, since that’s where I practice, here’s how it works….I had to be admitted into the State Bar. My membership to my state bar assocation allows me to practice in any court in the state of Wisconsin, which means that any municipal or circuit court, I have the ability to appear in just by having a WI State Bar Card. (Here, municipal courts handle non-criminal violations, like underage drinking or ordinance violations, and circuit court handles misdemeanors and felonies that are charged out by the state). Then, there are federal district courts. The state of Wisconsin has two districts – the Eastern District and the Western District. To be able to practice in either of these, you need to be admitted to that court, as well. I would note that here, at least, there is no additional exam, it’s just a fee of $115 bucks or something similar, so it is hardly a notable distinction to be admitted in and of itself. Handling federal cases with skill, obviously, is a much bigger deal. The rules of evidence vary from our state court to the federal court, and federal court is governed by federal criminal procedure, whereas state courts are governed by the statutes of the state legislature.
Breath, pause, restart commentary for the next question and answer.
Jessa – Here’s a couple of questions I hear quite often, and I think you’d be the perfect person to set everyone straight. Here goes:
Some attornies advertise that they handle cases in both state and federal court. Is there a special distinction/training/license that’s required to try cases in federal court as opposed to state or other local courts?
How does someone become an expert witness in a court case? What makes that person better than the next guy in the same job?
I’d love to hear more war stories, too. Your post was fascinating.
Ben – Did you receive the care package from Virginia?
Jessa – How about treating us to a story before you go. We’d love to listen to your babble.
donnellbll–shoot me an email with what you’re most interested in (ridiculous courtroom antics, client/attorney interaction, judges, police, mental hospitals, prisons, etc) and i’d be happy to babble on at length.
Hi, JD. Rockford Files? Hmm. I don’t know, I never really watched it.
Jessa, like Lee, is a total credit to the legal/law enforcement world. They both should be applauded.
By the way, everyone does know North Carolina (I was just in N.C. last week)author JD Rhoades, right? You can vist him at his blog here http://jdrhoades.blogspot.com/
You can also make your way to his website and books from the blog.
Jessa, I would love to hear about the best and worst case scenarios of your practice. Thank you!
Great blog, Jessa. I work with a lot of lawyers, though the Corporate kind. Although not nearly comparable (you’re job trumps mine by a quantum leap, my job as an Environmental Auditor requires me to think along the law quite a bit. A lot of my job is investigation, reading people, picking up visual clues. My reports are accusatory and people’s jobs can be on the line. If I want my reputation to remain credible, I have to get it right.
I’ve had a lot of my findings challenged and taken to Corporate Legal for review. So far, I’ve never had to retract a finding.
Anyway, I enjoyed reading the blog. Nice job.
Actually, the reason I had to go back so far to grab a law show from my memory was that I don’t usually watch them. I don’t often watch police shows either. I’m with Lee. Once Andy Griffith goes off the air, what’s left?
My favorite of the law-related TV shows was actually “The Practice” (which was the starter show for the Boston Legal spin-off). Despite some of the cases being completely over-the-top, the sentiment among the attorneys, in running that little office, is dead-on to me, as well as the range of emotions I think a defense attorney tends to have about his clients, the business of the practice of law, the DAs, and etc.
While we’re on old attorney TV shows – remember “Judd for the Defense?” It was on two years in the 60’s (yes, I was a kid then) and the odd thing about that show was that “Judd” would occasionally lose a case
Perry Mason he wasn’t!
No contest, Lee, and I stand corrected again! Matlock was pretty awesome as a defense attorney, no????
Donnell – I agree. Boston Legal is one of my favorite shows. It’ll never replace The Andy Griffith Show, but I like it..
Lee, thanks for the clarification. I was not referring to Graveyard Shifts. The creator (you may know him ) has done an excellent job of presenting myriad viewpoints from all walks of life. I’m speaking to television in particular, although I am falling in love with Cantebury Law, Boston Legal and the like which presents different slants.
Oh, I would also note that, in regards to “things getting wild”, I have more war stories than anyone would ever care to read, but I figured it was a little bit self-indulgent to go on about them. If anyone’s interested in some of the best and worst of real-life criminal practice, I’d be happy to share.
Wow, ya’ll get going early! (Sorry that it took me a minute, I had to run down to the jail first thing).
Thank you for the positive feedback–I’m particularly glad, JD, to hear that you don’t feel I’m misrepresenting the profession too terribly. ;).
With regard to police, this is something that Lee and I were having a dialogue about via email just yesterday—I’m of the belief that a good criminal defense attorney can distinguish between a “good cop” and a “bad cop”, and that part of my job is making sure that I treat the good cops, even if they’ve made good-faith mistakes, as exactly that–people that have the right intentions and are doing their job to the best of their ability. A mentor of mine once made the comment that his trial record turned around once he made this connection–that police shouldn’t always be treated as the enemy of defense counsel. He stated that once he changed his viewpoint, juries responded better to him because he didn’t appear to be anti-authority anymore, just pointing out where problems arose when they did. I think that’s invaluable advice for any attorney.
“And then my devil’s advocate comes in and tells me that most people who make it to criminal trial are guilty, ”
Actually, a lot of the time, the clearly culpable ones who the state has solid evidence on plead out (if, that is, the State’s playing fair in discovery). If there’s a trial, it’s more likely that there’s a triable issue, such as “the defendant didn’t do it.”
JD – I always preferred to see top-notch defense attorneys representing the folks I arrested. Not only did they keep me on my toes during the trial, they made me go that extra step to make sure my cases were solid. That also made me a better detective in the field.
As a retired teacher who put in time standing in front of your potential clients – home room 53 boys, 49 with police records, I totally agree with your assessment of Why.
After all the people who have tried to convince me of the error of my beliefs, it is refreshing to hear from someone else in a different part of the same ranks with whom I agree.
I’ve come across what felt to me like true evil only a few times, and never in that venerable Chicago Public HS.
I appreciate your honesty.
This was definitely an excellent post. Thank you!
I’m sure I’m not the only person who has internal arguments about justice, but it always helps to read well-articulated reasoning on the side of defense.
My head is 100% certain that without good defense attorneys, justice could never be fully served. And then my devil’s advocate comes in and tells me that most people who make it to criminal trial are guilty, and it feels wrong to try to get those people who are guilty an acquittal, even though my head totally gets what you’re saying that if you don’t look into all the evidence and technicalities as a way to place doubt in a jury’s mind, the state can get sloppy and convict wrongly.
Fortunately, my head wins out the vast majority of the time.
I don’t know how realistic it is (from a defense attorney point of view – I know the plot is larger than life, but still fun to read), but I just finished reading Ed Gaffney’s “Enemy Combatant” which stars a defense attorney. It was a great read, and it got me thinking a lot about justice and how trials work.
I decided to ask to be the public defender in our Citizens’ Police and Court Academy mock trial coming up next month, so I’m excited to have more views to help me understand the role before I do.
“And experienced cops make for better defense attorneys…”
True dat. There are a couple of officers I love trying cases with, because they’re at the top of their game and they make me think harder.
And thank you, Donnell.
JD Rhoades, these are fabulous explanations, ones we don’t here often enough. It’s usually very one-sided Thank you.
Donnell – Jessa’s post is absolutely fantastic. I wish there were more attorneys out there like her (and Dusty). It certainly wouldn’t hurt for a little of their compassion to drift over to the other side at times. Jail isn’t always the answer.
And experienced cops make for better defense attorneys…
Jessa, as a fellow defense attorney, thank you so much for this. It is one of the best written explanations of what we do that I’ve ever had the privilege to read.
I often explain the defense’s role in terms of “quality control”. Our job is to test the state’s case to see if it holds up, because if you’re going to deprive someone of the thing that so many have fought and died for, namely their freedom, it better be on the basis of real, high quality evidence, not some shoddy product.
Without defense counsel there, the State’s going to get sloppy, I guarantee it. Cops and DA’s are only human after all, and if you don’t have someone checking your work, your work just isn’t going to be as good. And if that happens in a criminal justice system, innocent people will suffer at the hands of the State.
I remember one day in District Court when one of my colleagues had an officer on the stand. Cross examination was revealing that the rookie officer had done pretty much everything wrong. I happened to be sitting next to another, older cop from the same department who was shaking his head as the State’s case crashed and burned like the Hindenburg. When it was over and the defense counsel’s motion to dismiss was granted, the older officer turned to me and grinned and said, “betcha he’ll do it right next time. ” And you know what? He did.
Defense lawyers make for better law enforcement.
The quickest way to turn a State into a despotism is to take away all the people who can tell it “no.” Checks and balances may not always make for efficiency, but they’re the American way.
Ms. Lutz: Your post couldn’t have come at a more invaluable time for this writer. My heroine is a criminal defense attorney. Thank you so much for your insights. I want to get her philosophy/personality right, and I absolutely love your viewpoint has the government proved its case. Like any professional out there, you’re doing your job. Well done, and thanks, Lee, for asking Ms. Lutz to blog.
Very intereting post. I am a retired police officer who is in my third week of a new job, i.e. court bailiff in Municipal court (that’s the lower court in this state that handles misdemeanors.) It is interesting to see the inner workings of the court, though I was familiar with much of it.
And by the way, I’ve never had a problem with lawyers (with a few exceptions.) Lawyers, like all of us, have their job to do. That job being to see that if a person is convicted of a crime by the state, that it be done according to Hoyle.
I like to remind people who get upset about accused criminal’s rights – next week, it could be you standing before the judge.
Fantastic post. Your clients are lucky to have you in your corner. And I love the information about things going “wild” in the courtroom. 🙂
Very interesting, Jessa! Thanks for giving us a glimpse of the “other side.”