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When I think of a criminal defense attorney a couple of images come to mind. One is watching Matlock growing up, the other is Johnnie Cochran defending O.J. Simpson. That’s not exactly how the job works, at least not all the time.
In order to find out just how much art imitates life (and sometimes life imitating life in the case of Cochran), I reached out to a criminal defense attorney in California to find out what’s it’s like defending people accused of heinous crimes.
Richard Tamor received his B.A from UC Berkeley and his J.D. from UCLA. He’s worked on some high profile cases and has even appeared as a character in two novels. He has straddled both worlds: fact and fiction. I asked him if he could separate the two for me.
Brightest Young Things: I would like to take us down a fact vs fiction path to start in terms of what we think a criminal defense attorney does based on television and movies. I think this is where most of everyone’s knowledge comes from. I watched a ton of Matlock growing up and something that always struck me is there seems to be a lot of showmanship. Do you find that you have to put on a show?
Richard Tamor: Not really because when you’re going to trial you’re a little more flamboyant but most cases do not go to trial. What you’re doing a lot of the time is general court work, talking to judges and lawyers where being flamboyant would get in the way. I would say that is kind of a fantasy, something Hollywood has made up.
BYT: What causes a case to go to trial?
RT: I am a firm believer that most cases should not go to trial. I think that the ones that go to trial are the ones where there’s a fundamental disagreement by one of the parties, realistically about the chances of litigation pitfalls. The other thing that prevents cases from settling is there are unrealistic offers from the government. For example someone will say I’ll plead your case but your client has to plead to 40 years but he’s not going to plead to 40 years, that’s a life sentence so that’s going to trial. I think the third reason is the client is a knucklehead. You can’t control the client. I would say 95% of the cases do not go to trial.
BYT: What kind of cases do you work on? Do you do, and I’m sorry to say this, everyone’s guilty pleasure: murder?
RT: I do a considerable amount of murder cases but it’s not the only thing I do. I do a lot of white collar criminal defense work, drug crimes, people getting subpoenaed by the FBI who need advice.
BYT: Obviously people are innocent until proven guilty but you know if your client did it or not. Was there ever a time when a client told you what they did and you were so appalled by what they said you just couldn’t possibly, morally try to defend that person.
RT: The only category of cases I will not do are cases where children get hurt, either sexually or otherwise….or sexual assault cases.
BYT: When you say sexual assault cases are you only referring to children? You don’t mean in general because I’m a lady and for me I am happy you’re not defending a potential monster but I also need that person to go to prison somehow.
RT: No, I won’t defend rape cases either.
BYT: Because you’re so horrified by them or because they’re so difficult? It feels like they never go to trial.
RT: I really do believe that people should get effective assistance of counsel and based on my experience I don’t think I can provide that level of assistance. The child molestation cases are definitely horrific. Even in that case I still believe people should get a vigorous defense but I won’t be able to provide that.
BYT: Do you ever run up against the idea that the prosecuting attorney is the hero and the criminal defense attorney is the villain? How do you deal with that if it happens? I feel like you are vilified as a criminal defense attorney and the prosecuting attorney is a savior by default.
RT: The answer is yes, there is that dynamic that goes on. I look at it in a more broad sense in that my role as a defense attorney is I’m the only one that’s going to stand up and speak for somebody when all the power of the government is coming down on them and they are trying to put them in jail and take their liberty away. For me that’s a challenge. I don’t feel bad about myself. I really do believe everyone has a Constitutional right to a vigorous defense. I like that dynamic. I like being the underdog.
BYT: So you’re here for the challenge.
RT: I think most good criminal defense attorneys will take that position. They rise to that challenge and know they’re representing people who are hated but that’s what makes it fun.
BYT: If your client admits to you that they did something, why do they still deserve a trial. The idea of attorney-client privilege feels very insane if someone admits to being guilty.
RT: You have a Constitutional right to a trial by your peers.
BYT: Is the only thing stopping this person from being thrown in prison the idea of attorney-client privilege. You can’t share that information with anyone, right? I find that to be a frustrating concept.
RT: What distinguishes our system from others is you do have that right to be judged by your peers. For example you don’t have that in China. You’re guilty until proven innocent. What you’re describing is the very foundation that makes the United States different from a lot of criminal justice systems around the world. Those places are authoritarian.
BYT: I agree that generally speaking yes, people deserve a fair trial, but if your client says they did it then why do they still deserve a trial? Is the idea of attorney-client privilege the only thing that stops them from immediately going to prison?
RT: I can’t share that information nor can I present to the court any evidence that’s knowingly false. Short of that I’m entitled to defend my client in any way that I can. My client could tell me he did it but there’s no evidence. The government can’t prove it. It is the government’s burden to prove my client did it.
BYT: People seem to be more focused on murder trials than any other kind. What’s a murder trial that stuck with you?
RT: I represented a guy named Hans Reiser who was actually brilliant. He was the author of this file system for Linux and he was world famous in the Linux community. Hans was accused and convicted of killing his wife but what really stuck with me is the government had very little evidence of it prior to trial. We negotiated a disposition for him that was very favorable. He would have gotten out of jail in a very short period of time. He was so brilliant that he thought the entire trial through and was convinced he was going to get acquitted. He went to trial and lost and was convicted of first degree murder. At that point they hadn’t found his wife’s body.
BYT: How can he be on trial for murder without a body?
RT: Well that’s it. It was a no-body murder. That’s why we had a good case.
BYT: Did he definitely do it?
RT: He got a 25 year to life sentence but he got nervous and eventually told them where he buried the body.
BYT: Why would he tell them?
RT: They reduced his sentence from 25 years to life to 15 years to life.
BYT: What makes a good criminal defense attorney?
RT: I think you have to question authority. You have to really be skeptical of the government. And I think you should also be a little anti-social.
BYT: You’re describing both conspiracy theorists and serial killers. I’m a little concerned.
RT: They usually don’t play well with others.
BYT: Rich, have you ever been psychologically evaluated?
RT: Not by a professional. I look at the DSM-5 a lot. Everybody has some kind of mental disorder you just have to figure out what it is.
BYT: Other than liking the challenge is there something specific growing up that made you want to do this?
RT: My father was actually murdered when I was 3.
BYT: Rich you really buried the lede here. I’m sorry, that’s terrible. Did they find his murderer?
RT: Yes he was found and convicted.
BYT: Don’t get offended but becoming a criminal defense attorney when your father was murdered is…interesting. No wonder you read the DSM-5 every night. Let’s close it with something lighthearted. What’s your favorite historical crime?
RT: I would say the Oklahoma bombing trial. That was really when I was getting my interest piqued about criminal defense work. The criminal defense attorney’s name was Michael Tiger. His son is a judge in the northern district of California and I know him.
BYT: What is it about that case that you find interesting?
RT: Everything I described about being the underdog and challenging the government…it had all of those components to it. That was one of the cases that made me really want to do this.
BYT: Rich you have a lot of sympathy for the devil.
RT: I do.