Hate mail. Distancing from friends and family. Criticized and second-guessed by the media. All criminal defense lawyers can feel for attorney Eric Nelson and what he has gone through during his high-profile representation of a deeply unpopular client, former Minneapolis police officer Derek Chauvin, who was convicted on all charges Tuesday in the killing of George Floyd.
It’s hard to fight any case at trial. Defense lawyers often face hostile prosecutors, judges, prison guards, and probation officers every day — but in a high-profile case, add to that a hostile media, public, and even popular movements.
CNN’s Jake Tapper said Nelson was gaslighting the jury during the closing. While the jury was deliberating, the President of the United States said he was praying for the victim and that the evidence was overwhelming. A congresswoman said that if the jury returned a verdict of not guilty, protestors should become more confrontational. And I’m sure closer to home, Nelson’s friends and family asked him “How can you represent that person?”
There’s no other profession in America where everyone is rooting against you.
If Chauvin had been shot on his way to the courthouse, it’s hard to imagine anyone sending hate mail to or criticizing the surgeon who operated in an attempt to save his life. No one would protest outside of the surgeon’s office or home. That’s not the same for the criminal defense lawyer.
Now Nelson will face questions about whether he should have called his client to the stand. Should he have objected more during the prosecution’s presentation? Should he have been more passionate in closing? Should he have picked a different jury? How did he decide on those experts? It’s always easy to second-guess after the result.
What people don’t realize is that Nelson — like most criminal defense lawyers — likely won’t be able to sleep for weeks because of the verdict. It may haunt him the rest of his life. He likely devoted himself to the defense, losing sleep, experiencing unimaginable stress, facing the hate of so many people … even though he may have deplored what his client had done. The public — and too often people in the media who should know better —will not differentiate between the lawyer and his client.
Our system is built on the principle that everyone is entitled to a vigorous defense. We believe it’s better for ten guilty men to walk free than for one innocent man to go to jail. A vigorous defense is the only way to give a person the beginnings of a fair shake against the machinery of the State. But that also means that a lawyer must step up and mount that defense — no matter how unpopular (or how guilty) his client, how terrible the crime itself, might be.
The principle lies at the very heart of justice, and yet there is so much hate directed at the lawyers who fulfill this important function.
After the “Boston Massacre” of 1770, an event that helped propel the American colonies into open rebellion, John Adams — who would become one of our Founding Fathers and the second president — represented the British soldiers who fired into a crowd pelting them with oyster shells and broken glass, killing five. Adams risked his livelihood and the safety of his family. He did so because of his love of the law and because of how important the principle was for order and justice.
Later, Adams mused that the representation was “one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my Country.”
My hope is that people remember that Eric Nelson performed an important service in taking on this case and fighting for his client. That’s true no matter how loathsome we may think his client is for killing George Floyd.
It’s a nuance that should not be lost.
David Oscar Markus is criminal defense attorney at Markus/Moss in Miami. He is a magna cum laude graduate of Harvard Law School. He tries criminal cases and argues criminal appeals throughout the country, and hosts the popular podcast, For the Defense. Follow him on Twitter @domarkus.