Berks Barrister Summer 2019 - 38

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Closing Argument

NOT THE CLIENT'S CLONE
By Donald F. Smith, Jr., Esquire
"Will we ever again see a criminal
defense attorney on the United States
Supreme Court?"
That was the question I posed to a panel
at the end of a seminar on Supreme Court
opinions in May 2016. The reply was
unanimous: "No, never again!"
Three months before, Justice Scalia
had died unexpectedly. Thinking the
United States Senate would carry out its
Constitutional duty of "advise and consent"
to fill the vacancy in an expeditious manner,
President Obama began vetting potential
nominees. One was Judge June L. Kelly, a
member of the U.S. Court of Appeals for
the 8th Circuit.
Prior to being on the appellate bench,
she was a career public defender. While the
White House was considering her, The New
York Times reported on March 15, 2016 that
the conservative Judicial Crisis Network
"was running television advertisements
attacking Judge Kelly for defending a child
predator later convicted of murdering a
5-year-old girl" and that "Republicanaligned groups" were also reporting "about
her representation of a pipe bomber and a
financial fraudster."
Given these attacks, having nothing to
do with her judicial career, she was dropped
from consideration. As it turned out,
Obama's efforts went nowhere, thanks to
the "McConnell obstruction."
I was reminded of what had transpired
in the spring of 2016 when I read in
May that Harvard University terminated
the service of law professor Ronald
Sullivan and his wife as faculty deans
for Winthrop House, an undergraduate
dormitory housing about 400 students. The
termination followed students protesting
Professor Sullivan joining the defense team
representing Harvey Weinstein. Some
students claimed that having their faculty
dean represent someone accused of sexual
harassment and assault was "traumainducing."
Seriously? When an attorney represents
one accused of a crime, even one later found
to be guilty, that does not make the attorney
a trauma-inducing criminal. Professor
Sullivan said it best: "Lawyers are not an
extension of their clients...When I'm in my
38 | Berks Barrister

comprising Wyomissing and West Reading.
As an Assistant Public Defender for
twelve years, Eric only represented alleged
criminals. Nevertheless, Berks County
voters valued the experience of Eleni and
Eric, viewing them as qualified jurists,
which they have proven to be.
When I posed the question to the
seminar panel three years ago, I was
thinking of Thurgood Marshall. The
former criminal defense attorney brought
to the Supreme Court an experience of
having practiced law in the trenches of
local courthouses, fighting on behalf of the
underdog.
Following Justice Marshall's retirement,
ending 24 years on the bench, Justice
Sandra Day O'Connor authored a 1992
article for the Stanford Law Review about
her colleague and the important role he
played on the Court: "At oral arguments
lawyer capacity representing a client, even
and conference meetings, Justice Marshall
one publicly vilified, it doesn't mean I'm
imparted not only his legal acumen but
supporting anything the client may have
also his life experiences, constantly pushing
done." Lawyers are not clones of those they and prodding us to respond not only to the
represent.
persuasiveness of legal argument but also to
Remember the American Patriot John
the power of moral truth."
Adams? In the spring of 1770, he agreed to
She writes of him reminding the other
represent nine British soldiers charged with justices "law is not an abstract concept
murdering five residents during the Boston removed from the society it serves." In
Massacre.
reading her article's conclusion, penned
Despite the risk such representation
twenty-seven years ago, one cannot help but
could cost his reputation, Adams undertook think of the current makeup of the Court,
the task to "be remembered as a man who
populated as it is for the most part, with
put law above his personal beliefs." Thanks former corporate attorneys, prosecutors,
to an enlightened electorate, who did not
academics and government-career lawyers,
scar him for his successful representation
all educated at elite schools: "To those of
of the enemy, John Adams went on to be
us who traveled a different road, Justice
elected president of the United States in
Marshall's experiences are a source of...
1797.
inspiration...because of what they instill in,
Berks County's electorate has
and ask of us."
demonstrated a similar enlightenment.
A criminal defense background is not a
In 2015 Eleni Dimitriou Geishauser
disqualifier for service on the High Court.
was elected Common Pleas Judge. She
To the contrary, possessing the experience
was the protégé of her father, Emmanuel
of representing the common person in
Dimitriou, Berks County's very first Public the trenches is the type of inspiration
Defender. He went on to become the
Justice O'Connor thought was needed for
dean of the criminal defense bar whose
meaningful deliberations. So, for a future
practice included successfully representing
vacancy, I hope the President and Senators
celebrated persons charged with murder
are as enlightened as Berks County voters.
and major drug dealers.
Proving the seminar panel wrong will
Two years later, in 2017, Eric Taylor was result in true justice for all, not an abstract
elected Judge for the Magisterial District
one.
Berks Barrister Summer 2019

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