THE ZEN OF CRIMINAL DEFENSE

September 22, 1996

(originally prepared for Mere Dictum, the school newspaper of UNC School of Law, Chapel Hill, North Carolina)

I never imagined when I began my job as a summer associate that I would actually like it. I met the man for whom I would work through a judge friend who was particularly adamant in the face of my protests that I would enjoy criminal defense work and, moreover, even like attorney Eben Rawls. Judge Howerton told me that Eben was one of the finest criminal defense lawyers in Charlotte. After engaging in the sweaty and seemingly obligatory experience of on-campus interviews, I called Eben and arranged for an interview.

When we met, Eben asked what kind of law I wanted to practice and I told him I was interested in civil litigation. Eben inquired into my conspicuous lack of interest in criminal defense - or even prosecution for that matter. I expressed my concerns about the criminal justice system as I had observed it from law school. Rather than being offended by what might have been perceived as something of a slight, and instead of just proceeding with the interview with a significant strike against me, Eben took the time to engage in a lengthy discussion of criminal policy. By the time I left his office, I had a feeling that the summer might at least be tolerable.

Eben is something of an idealist who has been tempered like steel by twenty years in the trenches of criminal defense. Born and raised in Winston-Salem, Eben was of-age during the sixties and early seventies. After a year at Duke, he took off for San Francisco where he hung out in Haight-Ashbury and lived in a Buddhist Monastery. A photo in his office shows a long-haired young Eben Rawls with several friends on a stoop in front of someone’s home. The picture easily could have been from the liner notes of a rock festival album. Somewhere along the way he attended Woodstock.

After graduating from Duke and while exploring a world that was roiling with change, Eben found himself at UNC School of Law. During the summers, rather than work in law firms or for judges, he drove a taxi in New York. Eben’s taxi license, complete with photograph, hangs on his office wall - adjacent to the wall where his legal and academic credentials, awards, and licenses hang. With his idealist credentials firmly in place, Eben became a lawyer; he never looked for a job, he never went to an interview, and he has had a remarkable career doing work that he properly regards as vital to the maintenance of liberty. In his soul lives the Woodstock Nation - with all its hope, its sense of justice and fair play; and within Eben, there is a keen awareness of the duty required by liberty.

As I understand it, at least in felonies, an accused has a right to a trial by a jury of his or her peers and a right to counsel. This due process of law is our bulwark against the otherwise unchecked and potentially tyrannical police power. I did not fully appreciate the gravity of this simple concept before working with Eben. We live in a time in which government, notwithstanding all its foibles, is not the oppressive presence that it once was - and still is in some parts of the world. But for the genius of our constitution and our legal system and the service of dedicated lawyers of strong conviction, we might live in a totalitarian state. It is but a thin veil of protection.

Thus, many of us in the comfort of our modern lives are quick to assume the worst about criminal defense work and criminal defense lawyers. It is too easy to demonize the criminal defense bar and forget how vital their work is. In the wake of the O.J. Simpson trial and other highly publicized and politicized matters of the criminal justice system, reason has often given way to rhetoric, pandering, and cynicism. What I now understand is that government could easily abuse its power - even (perhaps especially) against law abiding citizens - if it were not for the zealous protection of the rights of all people, even (perhaps especially) the guilty.

But the Zen of Criminal Defense is something more than merely being an advocate for the accused out of an understanding of political history or a respect for legal theory. It is the awareness that there but for the grace of God go I. It is to understand that given different circumstances, any one of us could be the accused. It is to realize that even the guilty are people who have families, dreams, hopes, disappointments, loves, and fears. It is to learn to be mindful of the needs of those whose needs come dead last in the minds of virtually everyone in modern society. It is to become part "of the people," rather than apart "from the people." It is to try, sometimes with too human feebleness, to help those who too often seem beyond help - and undeserving of it even then. It is to realize that while in our outrage we demand justice done to the accused, we would hope for mercy for ourselves if the tables were turned.

Judge Howerton was right about my summer with Eben Rawls. I came to admire Eben, respect the importance of his life’s work, and enjoy our friendship.  I found tremendous fulfillment and great satisfaction in the most unexpected situation.  And that is the Zen of Life - to be mindful of this moment lest its significance and perfection go by unnoticed.