Cop Land

Former public defender John Barnett has carved a niche practice representing the police

Published in 2012 Southern California Super Lawyers — February 2012

Photo by: Dustin Snipes

John Barnett didn’t always represent police officers. Years ago, the criminal defense attorney spent much of his time attacking them on the witness stand. All that changed around the time of the Rodney King case.

“Cops found themselves at the rough edges of the judicial system,” he says. “It wasn’t just the Rodney King case but the public reaction to it. There was a lynch mob reaction to it. You had the president of the United States and the governor of California all pronouncing [the cops] guilty. So that set a tone that said it’s OK to define this class of people guilty without a trial. Because we have a videotape and we’re real sure.

“It used to be that minorities were the target of government prosecutions on a disproportional level,” he says. “Now it’s policemen. They have become the new special-class of defendants, where they are prosecuted more vigorously and more often than any other class of people.”

It’s midday on a Thursday, and Barnett—who has represented, by his own estimation, 300 police officers since the early 1990s, 50 of whom have wound up before a jury—is clad in shorts, flip-flops and an NYPD T-shirt: a gift from his daughter, who is a lawyer in New York. The look is a stark contrast to the impeccably tailored suits he wears both in court and at the office, but he’s dressed this way for a reason: He’s not in court or at the office. He’s at his Laguna Beach home, which is filled with whiteboards, easels, and carts carrying three-ring binders, and where every window offers a breathtaking view of the ocean.

“This is where I prepare 95 percent of my work,” Barnett says as he finishes up an email to a client. “I don’t get interrupted as much, I like the view, I [get to] smoke a cigar outside. And I can lay cases out and look at them as a whole.”

As he takes his place behind his massive mahogany desk, then rolls his chair from the computer to a nearby balcony where a cigar burns inconspicuously, it’s obvious that he’s engineered an ideal environment in which to prepare cases.

“I put every case on a horizontal timeline because I like to see the whole case on a single piece of paper,” he says. “In complex cases it’s very easy to get trapped in the detail, very easy to get lost in the number of witnesses and the number of statements and to simply lose overall perspective. I find that if you can put it on a single piece of paper to understand it yourself, and then explain it to the jury, that’s quite helpful.”

Clients seem to agree. Former Capistrano Unified Superintendent James Fleming, indicted on three charges in 2007, recalls that Barnett invited him over to his house for hours at a time, including on weekends, to sort through the details of his case. “I hired John on a Tuesday or a Wednesday, and that Saturday he said, ‘Come to my home,’” Fleming remembers. “Three Saturdays in a row this man’s giving me six, eight hours. I was so impressed at how he devoted so much time. And he did it right there at his house.”

For two years, Fleming had another lawyer who, he says, “sought delay after delay because of all of the pages of documents involved in the case, and I grew weary of that. John Barnett was recommended to me and he jumped in right away. I felt like I was his only client.”

Fleming says that Barnett’s commitment was equally palpable in court, though manifested in a different way. “In court, he is completely dispassionate,” Fleming says. “He is a machine. He is singularly focused on what he’s doing. There is no anger, there is no elation.”

For the opening arguments, Fleming recalls, “[Barnett] stands up and the chief judge says, ‘Before you get started, Mr. Barnett, let me tell you that we have thoroughly read all of your briefs, so we have a full understanding of this case; therefore you don’t need to take much time.’ John says, ‘Thank you very much, your honor,’ and he sits down. At the time I went, ‘What’s he doing?’ But the message there was: When you’re ahead, you don’t want to push it.”

“I’m not a person who raises his voice or who displays a lot of emotion like yelling or screaming or crying or sarcasm,” says Barnett. “I find that detracts from the goal, which is to win.”

Which he did. Under his guidance, not only were all charges against Fleming dismissed, but the prosecution was admonished by presiding Justice David Sills for compiling a shoddy case. “The beauty of the appellate court’s decision,” says Fleming, “is that they said, ‘The man was doing his job. And not only was he doing his job, he was doing his job well. He was doing what should have been expected of any chief administrator reporting to an elected governing board.’ And I don’t know if I’d have gotten to that point had it not been for John’s ability to frame the issues and make a presentation and file the proper briefs so that the case was well-explained.”

After the case was over, Fleming invited Barnett out to dinner to celebrate. Fleming brought along his wife, who was used to the dispassionate lawyer she’d seen in the courtroom. On the way home, she expressed surprise. “I cannot believe how friendly and social John was,” she said.

 

Barnett grew up in various Marine Corps communities along the East and West coasts: wherever his father, a fighter pilot and lawyer, was transferred. “Because you have to change environments, especially when you’re young, you have to learn to adapt,” Barnett says. “The people in the Marine Corps are particularly well-organized, and in my experience, very calm under stressful circumstances. That is something I learned at a very young age.”

After graduating from the University of San Francisco Law School in 1973, Barnett spent four years with the Orange County Public Defender’s office. “I wanted to do criminal defense law because individual defendants are the ones who never have an advantage and I just preferred that position,” he says. “There is a great deal at risk in every case because it’s not someone’s money, it’s their lives. So every single case is important. They’re all interesting and exciting because of what’s at stake.”

In 1979, Barnett went into private practice, handling a wide variety of criminal defense cases.

“He’s got a lot of integrity and he can be very aggressive without creating a lot of animosity,” says fellow criminal defense lawyer Bill Genego, of Nasatir, Hirsch, Podberesky, Khero & Genego, who worked with Barnett on a double homicide case in the mid-‘90s. “I think that’s critically, critically important to his success. Everybody knows he’s a completely straightforward guy. What you see is what you get, and he’s allowed to press forward because everybody knows that about him.”

Genego says Barnett’s style can produce some dramatic moments in the courtroom. “There was a DA’s investigator on the witness stand who had submitted a written declaration saying the opposite of what we were trying to convince the court had occurred,” Genego remembers. “John just had this intuition about him that made him think that there was something wrong with it. By the end of the hearing, the investigator had admitted that what we were contending did in fact take place. It was a real Perry Mason moment—and they happen all the time with John.”

Integrity and straightforwardness notwithstanding, many of his colleagues were surprised—and even disappointed—when, in the late 1980s and early 1990s, Barnett began representing police officers.

“I practiced for 20 years and never represented a cop,” he says. “[I was] attacking cops the whole time, trying to show they were lying and that they use excess force and all of the things you would expect. Then the police got into that unwelcome position of being a target class for the government to direct enormous resources towards. I like that—defending people who get in that target range. But there was some sense [among defense lawyers] that, you know, that you have gone to the dark side.

“They would just say, ‘How can you represent this cop and get him off? You know he’s a liar. You know he beat this guy up.’ And I would say, ‘You represent people, and I represent people, charged with child molestation, multiple murder, torture? And you dare ask me that? Come on.’”

The criticism increased in 1992 when Barnett took on the highest-profile case of his career: representing Theodore Briseno, one of the four police officers tried in the beating of African-American motorist Rodney King.

While the case became a lightning rod for controversy, provoking a national conversation about the police and its treatment of minorities, Barnett insists it was important that he didn’t succumb to preconceptions about his client’s culpability. He also insists his representation of Briseno, who was acquitted of all charges despite the infamous videotape of the beating, wasn’t as impressive as it might appear from the outside.

“All the things that you think are the worst possible things for your case and your client turn out to be the reverse,” he says. “Everybody had seen the prosecution’s best evidence in the case. Everybody in the country, right? So the judge asks the jury—we’re in a warehouse [in Simi Valley] with 500 jurors—‘Okay, raise your hand if you’ve seen the video.’ Almost everybody. ‘And keep your hands up if you think the guys are guilty.’ So about 95 percent of the people keep their hands up. Well, those people are excluded. So we’re going to start with a pool of jurors who have seen the best evidence the prosecution has and doesn’t think it’s enough.

“That gives us a very favorable jury pool.”

During the case, Barnett argued that Briseno was trying to stop the other officers; that he felt too much force was being used on King. Since all four officers were acquitted in the state trial, he says it was perhaps an unnecessary defense. Then he adds, “I think that’s what saved him in the federal trial.”

After their acquittal in Simi Valley, and the subsequent riots in LA that led to 54 deaths, the four officers were charged in federal court on civil rights violations. Officer Laurence Powell and Sergeant Stacey Koon were found guilty, while Briseno (represented by Harland Braun) and Timothy Wind were again acquitted of all charges.

Barnett estimates cops now make up 25 percent of his practice.

“I’m not saying that all of the attention that’s given to the prosecution of the police officers is without any basis,” Barnett says. “If the police are committing crimes, that does create a special problem. The problem is [we] tend to go overboard in correcting it.”

 

As for what makes a successful lawyer?

Empathy helps, Barnett says. “I think that you have to understand the human condition,” he says. “And that means on both sides of it. You have to have understanding—and not just of your client, but of the witnesses and of the jury. You have to understand everybody’s position, so that you can try to predict how they are going to act, and how they are going to decide.”

Ego? Just gets in the way. “You have to get over yourself and recognize that it isn’t about you,” he says. “You have to recognize that it’s about the system and it’s about the case and it’s not about you. And that is a hard thing for lawyers to do. But if you enjoy the process and you don’t have fear of the result, it allows you to try a wide variety of cases and gain the experience that is necessary to be successful.”

But Barnett says that the key to his practice is a simple mantra he learned while at the public defender’s office: Don’t be afraid to try the case.

“Don’t plea bargain just so you don’t have to do the work or so that you don’t have to endure a difficult trial,” he says, “And not only don’t be afraid to try the case. Enjoy it.

“The lawyer’s job is to represent one side of an argument,” he continues. “The whole system is based on [the idea that] if we have one side committed to the defense and one side committed to the prosecution, the truth will get squeezed out of this ugly mess.”

Photo by: Dustin Snipes

Photo by: Dustin Snipes

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