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.