Women Criminal Defense Attorneys: Interview with Evan Jenness

EJEvan Jenness is a criminal defense attorney from Los Angeles, California. For over twenty-five years she has focused her career on defending clients and corporations accused of criminal offenses. She has extensive experience in federal court and focuses primarily on representing clients charged in white-collar matters. Before starting her own firm, she served as a deputy federal defender in Los Angeles. Evan is a past board member of NACDL and is currently co-chair of the Ethics Advisory Committee. She lectures and publishes extensively on both federal criminal defense and ethics. She has been recognized in Best Lawyers in America and Southern California Super Lawyers. Evan has earned a national reputation in the white-collar field and is known and respected as a tenacious advocate with a very strong knowledge of the law. Many years ago, I was introduced to Evan Jenness on a list serve. I remember asking a friend, “Who is that guy posting such intelligent content on the list serve, I save all his posts?” and I was thrilled to learn it was in fact a woman. And as I have been known to say when I am in the company of a true defender….she is the real deal!

What do you love most about being a criminal defense lawyer?

The challenges of taking on powerful entities and individuals in defending my clients and vindicating their rights.  Victory is easy to love, but I would be a criminal defense lawyer even if I succeeded less often.

What is the most significant shift that you have seen for women in criminal defense over the twenty-seven years you have been practicing?

There were very few women criminal defense attorneys when I started practicing, and most were junior lawyers.  The first generation of women defenders has now ascended, the second wave is coming of age professionally, and there is a large and increasing community of new female lawyers focusing on criminal defense practice.  It’s been a beautiful evolution to experience.

Do you think women bring unique skill and attributes to defending the criminally accused?

I’m not sure I could pinpoint specific skills, but I feel confident that women’s participation in the practice area has enhanced the field.

Have you had women role models? How has this impacted your career?

Women in high profile positions across the spectrum have always been a source of inspiration for me – from influential or powerful ones like Aung San Suu Kyi and Angela Merkel, to the late vocalist Miriam Makeba, who reflected the indefatigable spirit Soweto during Apartheid and thereafter. When I think about succeeding against the odds, I’m often inspired by considering the many women who have succeeded against odds greater than any I encounter. And, of course, there are the many talented women judges and defense attorneys I’ve been privileged to work over the years.

What do you think it takes for a woman to succeed in private practice in this field? 

A love of the practice and willingness to work hard.  It’s a challenging field and unpredictable circumstances are often the norm – whether it’s a client’s offices being raided in the early morning, investigation surprises, a document dump of tardy discovery right before trial, surprise witnesses, or any of the many other twists and turns of criminal matters.  It’s also still a largely male-dominated practice area.  Maybe some women can successfully transcend the gender barrier, but I’ll never make it into any boys’ club. One positive consequence is the sisterhood that has developed among many women defenders.  I’ve also found that gender is mostly a non-issue with clients, who care more about the quality of their defense than social issues.

What advice would you give a young woman who wants to specialize in white-collar defense?

Be persistent and take every opportunity that arises for getting a foot in the door. What do you see as the paths to specializing in white-collar defense? Be a public lawyer for a few years, whether a public defender or a prosecutor.

What is your proudest moment in representing a client? 

The highest profile proud moment that I’ve had was when a jury returned not guilty verdicts across the board for my client following a lengthy federal trial after his corporate employer had pled guilty.  I knew he deserved vindication, but the prosecutors and judge were formidable opponents throughout the case.

If you could go back and give yourself one piece of career advice what would it be?

I probably should have been more deferential to some of the curmudgeon judges who tried to bully me when I was a young lawyer.  Watching savvy defense lawyers like Marilyn Bednarski, with whom I was a DFPD, interfacing with those same judges showed me a more sophisticated way of not being pushed around.

What do you consider your most valuable weapon in your defense arsenal?

Courtroom experience and self-confidence based on years of practice.

Of the women criminal defense attorneys that you know and admire what made them stand out to you? What about them inspired you?

Their talents and commitment to defense practice.

Moment you knew you had made it?

I’ve made it?! I hope that day never comes, because I’ll have to head off to find a new challenge.

One thing people who know you professionally don’t know about you?

I began traveling the globe at about 6 weeks old, spent many years of my childhood living in Africa, and have a multi-racial family.  I learned early on that we are all one people, whatever our differences.  I also know, each day, how fortunate I am.

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Women Criminal Defense Attorneys: Can Women Be Partners… and Parents?

The New York Times recently highlighted a woman-led law firm that lets partners be parents. The Gellar Law Group has created an environment where lawyers can both commit to practicing law and caring for their children. The article cited an M.I.T. Workplace Center report from 2007 which found that by far the most important reason women gave for deserting the partnership track was “the difficulty of combining law firm work and caring for children in a system that requires long hours under high pressure with little or inconsistent support for flexible work arrangements.” So has the Gellar Law Group, with their focus on flexibility, found the answer to this dilemma?

In many ways I think the answer is yes. It is certainly a critical step in the right direction. The old brick and mortar law firm mentality needs to change before we will see a significant rise in the number of women staying in the field and reaching positions of power in law. Like it or not, women still largely bear the burden of child rearing and ultimately this has a devastating effect on our ability to compete on a level playing field with men who don’t equally share in child rearing. Carving out flexible work environments is a significant step in leveling the playing field.

There are so many aspects of the practice of law that are changing. Today technology allows a lawyer to expand their practice beyond the walls of their office. And in spite of the fact there are obvious pros and cons to being available to clients 24/7, the reality is that this same technology allows lawyers in general more freedom to actively participate in their children’s lives and still practice law full time. So while there seems to me to be a greater effort to provide flexible work environments for all lawyers, in my opinion, the real beneficiaries of this shift will ultimately be women.

Women Criminal Defense Attorneys: Lift Each Other Up

I just learned about a book called The Woman Code by Sophia A. Nelson that came out last year. The book advances the idea that the “code” that women function under is antiquated and no longer working. Nelson argues that creating sisterhood and concentrating on helping each other is the path to success.

CNN’s Kelly Wallace interviewed the author and asked why women too often don’t lift each other up in the workplace, but tear each other down instead. Nelson shared 5 ways women can stop tearing each other down at work:

  1. Steer clear of women who “don’t do” women friends
  2. Collaborate and share
  3. Be a mentor
  4. It’s reciprocal
  5. Be willing to have “courageous” conversations

Nelson discussed the competitive nature of women and the prevailing attitude that we are fighting for the same piece of the pie. In contrast, men often have an attitude that there is enough pie to go around and that they might even work together to get a bigger share of the pie. Nelson admits that for so long there was a very limited piece of the pie for women in business, which might account for this attitude. But now, she points out, this reality has changed and we need to start lifting each other up. Men share an attitude of lifting each other up and collaborating and we need to do the same thing for each other in business.

Nelson reinforces what I believe is the real secret to our success. We need to commit to helping one another. And we need to stop spinning our wheels trying to convince women that don’t understand this, are too afraid, or are unwilling to support other women. If you encounter a woman that won’t accept this idea, move on and find the ones that do.

This isn’t about being anti-men. The more we grow in this field by growing our businesses, the more that everyone, both male and female, benefit. I have strong business relationships with both women and men but I do prioritize supporting women in the field. That doesn’t mean I don’t support men in the field, because I do. I share business with both women and men and I benefit from business from both women and men. And as my business grows so will my ability to support other women and men in the field. But it is time that we all realize that strengthening our sisterhood with a common goal of pulling each other up, not tearing each other down, is the real secret to our success.

Women Criminal Defense Attorneys: Diversity in Action at ABA

At the recent ABA nominating committee the leadership slate shows diversity in action. During a “coffee with the candidates” session at the Midyear Meeting in Houston, six current or soon-to-be officers of the association were introduced to members. What was striking about the candidates is that there was only one man, while the other five candidates were women. This is obviously a shift in the optics alone and an important statement about the ability for women to reach positions of leadership in law. Recent statistics, which we have discussed on several occasions, show that women are still not reaching positions of leadership in law firms proportionately with the number of women in law. The diverse nature of our future ABA leaders will hopefully serve as both an example and a call for change.

Many of the women are running unopposed and although the formal election is still a year away, the Nominating Committee did formalize the selection of Linda Klein, who is a managing shareholder of a firm in Atlanta, as president-elect nominee. “It makes me proud,” said Klein of the diversity in ABA officers and candidates. “It gives me a lot of confidence in the future of our association, because diversity leads to the best decisions.” Klein will follow President-elect Paulette Brown who will become president in August.

The ABA has shown real commitment to advancing women in law with the development of initiatives such as the Commission on Women in the Profession. The increase of women in positions of leadership at the ABA demonstrates that initiatives of this nature work, and that confronting the challenges that women face in the field head-on works to open minds and doors for women.

Women Criminal Defense Attorneys: Interview with Gail Shifman

ShifmanGail Shifman, a criminal defense attorney from San Francisco, has a reputation for being a passionate and dedicated defender. She has extensive experience handling complex white-collar cases for both corporations and individuals, as well as general criminal cases ranging from high profile murder cases to less serious matters. Gail has been included in Northern California Super Lawyers since 2009, is listed in Best Lawyers in America, and been a Martindale Hubbell AV Rated lawyer since 1996. When talking to Gail her fiery and fearless spirit comes through, and she isn’t afraid to speak her mind. She has grown a successful private practice and has much to teach about what it takes to make it on your own. She is an inspiration not only for women that dream of hanging out their own shingle but for the defense bar as a whole. Her passion for her work is infectious and I’m thrilled to introduce her to you.

What is the most significant shift that you have seen for women in criminal defense over the years you have been practicing?

I think the most significant shift has been in the number of women in the field. It’s always so encouraging to see young women come into the fold who are committed to real defense advocacy. Watching them roll up their sleeves and get their hands dirty, so to speak, to ensure that everyone under investigation or charged with a crime not only receives effective representation as guaranteed by the Sixth Amendment (which as we know doesn’t require much other than the ability to breathe) but instead providing vigorous, zealous representation is inspiring. For me, that is always wonderful to watch, work next to and with.

On a more substantive level, I actually don’t think the shifts have been that significant, beyond the numbers. Women criminal defenders whether in white-collar or in general criminal defense still aren’t on a level playing field with men, especially when it comes to competing for business or commanding equal pay. There remains a long fight ahead for all of us to ensure that we’re on equal footing with the men in our field. In spite of our increased numbers and the fact that there are some women who have broken through and found great success, it still feels like a boys’ club.

What do you think we, as women, need to be doing to ensure that we are on more equal footing?

We need to be both more sensitive and less sensitive to gender issues. I know that sounds confusing but first we each need to be strong enough to call out subtle gender biases that happen every day in multiple ways while at the same time we need to learn to take it in stride and laugh at it too. Ultimately, though, we need to call out gender bias when it occurs. Something I have found effective when talking to men about behavior which is either overtly or subtly gender biased, is to couch the conversation in the context of their own daughter. This changes the perspective and provides a better path to understanding. I will ask “would you want your own daughter spoken to or treated in that way?” It doesn’t help to get angry or obnoxious about it and, in fact, I think that approach hurts.

Amongst ourselves, there remain some women who still believe they have difficultly working with other women and that kind of attitude doesn’t serve any of us. We have to recognize that there is strength in numbers. The more women you have working together on a team the better because women actually work quite effectively together. Unfortunately this is still rare and it is more typical to see a team of all men and one woman. We each have to say – “I’m willing and want to work with other women and I’m going to put women on equal or first footing in my mind when it comes to building a team or sharing business.” We each have to say – “I’m going to suggest a woman defender to my male colleagues when they are seeking to refer clients.” So often it seems that men control the corporate business that I think women are reluctant to recommend other women for a number of reasons including the antiquated notion that women don’t work well together. That needs to change. I personally love working with other women and welcome it. I would love to see all female defense teams. That would be amazing.

What does it take for a woman to succeed in criminal defense?

First, you have to learn that the worst thing that can happen is that someone is going to say no, and so what? We all hear no all the time in this business. We hear it from prosecutors, judges and in our practices everyday. No is not the end game. There are plenty of opportunities beyond that no. So first and foremost, you have to be willing to risk being rejected.

Then you need to be relentless. You can never stop networking. You have to learn to develop a way to trumpet your successes every chance you get without being obnoxious. I don’t think tooting our horns comes naturally for most women but you need to find your path to it. Every time you meet someone, that is a networking opportunity. Every time you are chatting with someone, that is an opportunity. And every opportunity needs to be followed up – do it the old fashioned way and hand out your card or even better, email, text or, dare I say, call. Add them to your contacts list; go to lunch. And, get out in your communities – from your individual office to your firm to your broader legal community, parents’ and social groups and beyond. Do you go to the driving range? Make sure they know who you are and what you do. You can’t be shy about how fantastic you are and there are really many ways to do that without being a turn-off. And if you are a solo, like me, you have to remember to remind people that you are out there because we can all get lost in the shuffle. Share with others your successes and your hard fought defeats both in and out of the courtroom.

And, if you have kids you have to figure out a way to create work life balance while making sure that the zeal for your clients and your business comes across every chance you get, which is no small challenge. I have no special tricks up my sleeve about that one.

Do you think women bring unique skills and attributes to defending the criminally accused?

Every person has a unique set of skills, whether male or female. Generally speaking though, I believe women are much more effective at listening and understanding the subtext of what is really being said. One of the essential skills of being an effective advocate is being able to tell a story and women are particularly good at understanding their client’s life story. Being able to convey a client’s story for mitigation purposes to persuade the government to refrain from charging or for use to minimize the ultimate sentence imposed by the court is critical.

It’s important to be a good storyteller, but in order to be a good storyteller you first have to be a good listener. You have to understand not just the facts and the law, which are obviously necessary, but you have to understand the motivations and emotions involved. This is true not only for your client but also your opponent because if you can’t understand where they’re going emotionally or where they were emotionally and what is motivating them, then you can’t effectively persuade. At the end of the day that’s what effective advocacy is all about, persuasion.

Most rewarding part of being a criminal lawyer? Most draining part?

The most rewarding part of being a criminal lawyer is effectively managing the risk for my client. Sometimes that means a straight on acquittal at trial and sometimes that means negotiating a resolution that minimizes the impact on their life. Being able to work and communicate with a client and help them understand what the best resolution is for them, in the big picture of their life, is the most rewarding part of the job.

The most draining part is the fallout around the client especially when dealing with the family which can sometimes be a nightmare. I often see male colleagues relegate this duty to female associates or to a woman on the team but, like it or not, it is an essential part of what we all have to deal with when we represent someone. It is, however, emotionally draining and often the toughest part of the job.

San Francisco is a unique environment for women in the white-collar and general criminal field. Can you describe why?

San Francisco has a very entrepreneurial spirit. It always has. The city is on fire right now; it’s booming with start-ups everywhere. Everyone has an idea to make a zillion dollars and it’s the kind of town where the entrepreneurial spirit is valued, above and beyond your gender. So when you have that as a landscape it opens up a lot of opportunities. Nobody cares whether you’re a woman or a man, white, brown or black or what your sexual orientation is if you have a good idea that’s going to make a lot of money.

Having said that, we just had this high profile gender bias trial against a big venture capital firm where a female junior partner was dealing with all sorts of subtle and not so subtle gender discrimination and harassment. She ultimately lost the suit but the trial shed a bright light on what is going on in Silicon Valley as well as other parts of the country. So don’t get me wrong, it’s not as if women here don’t face similar challenges as women do in other parts of the country, but what feels different is the spirit and energy that is uniquely San Francisco.

Most important weapon in your criminal defense arsenal?

My empathy. I understand that humans are flawed and that even a wonderful person 99% of the time can still make a mistake. My job is to convey the message during every stage of representation that it’s a small mistake in the scope of their life. I personally feel that this skill combined with my ability to immediately understand the big picture while at the same time managing minute details enables me to strategize effectively and has made me an incredibly successful advocate.

What has been your most successful business initiative?

I’ve successfully developed working relationships with other law firms. We join forces to work on cases together which has definitely increased the base of work that I have. It has also made it easier for me to market myself on larger cases that might not come my way because I’m a solo.

Claim to fame?

I’m tenacious as hell. I just don’t let go. Some people are less kind at how they describe it and might say I’m a ball buster.

Best advice you ever received?

Be yourself.

Moment you felt you had made it?

I got an acquittal in my first trial and I knew right then and there that I had made it.

One thing people who know you don’t know about you?

I’m a homebody.

Women Criminal Defense Attorneys: One Strong Juror is All It Takes

Just this week Jodi Arias was sentenced to life without parole for the murder of her boyfriend in 2008. Arias has been represented throughout by one of our own, Jennifer Willmott from Phoenix, Arizona who represented Arias in the guilt phase and through two penalty phase trials. Willmott spent many years as a public defender out of law school and is now in private practice. To say that this must have been an all-consuming case for Willmott is an understatement. This is the kind of case that takes everything out of a defense lawyer.

The Arias case has had a media circus surrounding it since the beginning; portions have been televised and it has been all over social media. Like so many other murder trials in the last couple decades the courtroom drama takes on a sort of entertainment quality, somewhat akin to reality TV. The problem with that kind of atmosphere is that it unquestionably has a prejudicial effect on the accused’s right to a fair trial. It is almost impossible to seat a fair and impartial juror in a media obsessed environment which inundates potential jurors with opinions and suggestions rather than evidence. It has a devastating effect on the concept of a public trial and due process.

The law in Arizona prohibits the retrial of Arias after two separate juries hung. The Court had no choice but to sentence Arias to life, but was left to decide whether to sentence her to life with the possibility of parole or a natural life sentence. The jury that found Arias guilty of murder hung during the penalty phase last year and the court granted a mistrial. In October 2014 a second jury was sat to hear the retrial of the penalty phase which finally resulted in a second hung jury mid-March 2015. There was one hold out for life, and eleven verdicts for death. Just one. She faced harassment from her fellow jurors during the deliberation and has been threatened after the trial through social media, and been subject to rumors of misconduct and possible investigation.

No juror, regardless of their verdict, should be subjected to the kind of harassment that Juror 17 has been forced to endure. She had the courage to stand up for what she believed in and what she determined the proper verdict should be after considering the evidence. It is shameful that she had to be subjected to that kind of scrutiny and abuse. Funny how our society doesn’t take a second look at a hold out for death and examine their motives in the same way. In fact, have you seen one article questioning the motives of a juror that voted for guilt or death of an exonerated defendant?

We have to address the devastating effects that the current obsessive media environment has on the fundamental rights of the accused and even on jurors’ rights to privacy. It is time for our Courts to re-examine the concept of a public trial in this new media culture. Something has to change. In the meanwhile, this example is a stunning reminder of the power of one juror.

Women Criminal Defense Attorneys: We Should All Be Feminists

I just read a short essay titled We Should all Be Feminists by Nigerian author Chimamanda Ngozi Adichie.

It is a short but powerful summary of Adichie’s Ted Talk that she gave in December 2012. Both the essay and the Ted Talk are truthful and bold statements about the overt and subtle gender discrimination that women still face in our society. She rightfully encourages both men and women to reclaim the notion of being feminists. She states “Culture does not make people. People make culture. If it is true that the full humanity of women is not our culture, then we can and must make it our culture.” Listen to the Ted Talk here.

Women Criminal Defense Attorneys: Blair Berk and Lisa Wayne Negotiate Multi-State Plea Deal for Darren Sharper

Blair Berk along with Lisa Wayne and a team of lawyers in multiple states have seemingly pulled a rabbit out of a hat for Darren Sharper. I previously discussed the challenges and dangers of a multiple victim and multi jurisdictional case of this nature here. The stigma of similar allegations from multiple victims would have been an uphill battle for any defense attorney. But, the lawyers in this case accepted that challenge with grace and style and pulled off a huge victory for their client. Sometimes I watch lawyers fight the tide in every single case. And there are many cases, such as this one, where that is simply not a wise strategy. Fighting against the tide in a case like this would have simply ignited the mob mentality that was circling around it.

The defense team, which includes two of our own, negotiated a global settlement where Sharper will serve 9 years to run concurrent and end all the claims in all jurisdictions. Sharper has already started pleading guilty in some states and others are reported to follow. When all is said and done, he will plead in California, Louisiana, Nevada, and Arizona and is reported to be serving the nine years in federal prison followed by a life term of probation once released. By all accounts this is a huge victory for a defendant facing far more time in each individual case than even this global deal that resolves multiple cases at one time.

The women representing Sharper had the instinct to know that minimizing the risks of fighting different cases in different states was the best way to serve their client. Nine years is still a serious term of incarceration but considering that Sharper was facing far greater sentences individually and collectively, in multiple states, this resolution is clearly a huge victory.

I have to admit that when I first heard about the case it never occurred to me that there could be cooperation between the different states to structure a global settlement that all jurisdictions could live with. This plea serves as a reminder to me and for all of us that we have to look beyond the perceived roadblocks or restrictions in our cases and think outside the box for creative solutions. Congrats to Blair, Lisa and the entire team. No doubt Sharper got the benefit of some fine lawyering.

Women Criminal Defense Attorneys: Nina Marino on Cover of Los Angeles Lawyer Magazine

Nina Marino, who we have previously interviewed here, is on the cover of the Los Angeles Lawyer Magazine this month with Blithe Leece, who is Of Counsel with Marino’s firm. The two women are highlighted as they take up the cause of educating lawyers about the dangers of public corruption prosecutions under the California Penal Code. It’s a comprehensive review of the types of prosecutions that are increasing for public officials and those responsible for public monies in California. They correctly advise that “[f]or any client who sits on a board of directors for a company receiving public funds, the best advice is to know what is going on, ask questions, and maintain records of activities.” The cover article is titled The Accidental Defendant and is worth a read whether or not you practice in California.

What I obviously love most is that the Los Angeles County Bar Association highlighted two strong women criminal defense attorneys on the cover of their prestigious bar magazine. Way to stand out Nina and Blithe!

Women Criminal Defense Attorneys: Judy Clarke and Team Continue to Impress

The trial of Boston marathon defendant Tsarnaev officially started and Judy Clarke laid down the gauntlet in a fight for her client’s life. She wasted no time telling the jury in opening that her client committed the crime.

The New York Times called her strategy an echo of Clarence Darrow. Clarke told the jury she wasn’t contesting the who, what, where, and when of the government’s case, but only the why. She then went on to paint a picture of her client as a lost teenager who was controlled by a radical older brother. Clarke told the jury that her client would not sidestep responsibility for his crimes. This was a move that undoubtedly gained her credibility with the jury, being that she wasn’t going to try to insult their intelligence with some slick argument but rather told them the truth. It is amazing how jurors respond to being told the truth by a defense attorney.

Since the dramatic opening there have been countless daily reports of the parade of witnesses. Clarke and Miriam Conrad are taking every opportunity to extract detailed facts that support their theory. Some of the first witnesses were victims of the attack who shared harrowing stories of survival. CNN reported that the defense team did not cross-examine any of these witnesses. This was absolutely the right move. It showed respect for them and their stories, and that they were doing exactly what they promised in opening, not fighting the what.

When one of Tsarnaev’s friends was called to testify that he had given Tsarnaev the gun that was later used to kill a police officer, Conrad cross examined the witness about comments Tsarnaev made to his friend about his brother that clearly supported the defense theory that his brother was controlling and radical. There are similar reports for almost every witness that has taken the stand. I couldn’t help but imagine when reading these reports that Clarke and her team reminded me of skilled surgeons who are very methodically making incisions in a patient to get to the cancer in the patients body while trying to prevent it from spreading. It is a very deliberate and thoughtful dance.

No one would question that this is a tough defense case, but sometimes the answer to even the toughest case is simply the truth. And the truth is that family relationships are complicated and complex. The truth is that we have all seen this story before. Most of us have had the experience of representing a client who wasn’t predisposed to commit crime but committed a crime nonetheless at the bequest or prodding of a family member. I think this is such a universal experience that if you represent people accused of crime you surely have seen the effect of family influence on a client. So, the only difference here is that the crime that was committed resulted in unimaginable destruction. It doesn’t change the story behind what happened and bravo to Clarke and the entire defense team for having the courage to tell, what appears to be, Tsarnaev’s authentic story and hoping that the jury has the courage to listen and understand.