Deja vishny| Episode 04

Deja Vishny  0:00  
You have to go into the courtroom with your full amount of humanity, and that includes acknowledging the pain of people who you are not representing.

 

Aaron Nelson  0:20  
Welcome back to Sanctuary in the jungle. I'm your host, Aaron Nelson. Joining us today is Wisconsin legend and long time public defender attorney Deja Vishny. Deja has spent her career specializing in serious cases where loss is profound and emotions run high. Over the course of her career, Deja has represented over 125 people charged with homicide. Today, we talk about what it takes to create a sanctuary in those high stakes cases. We discuss how she brings humanity into grief filled courtrooms, how she speaks with the families of the deceased, and how she carries compassion without losing the fierce advocacy her clients depend on. Beyond the courtroom. Deja dedicates her time to teaching others. She is a frequent presenter at NACDL seminars, a faculty member for National Criminal Defense College and helps lawyers across the country through her own consulting business. For Deja, and for us here at Sanctuary, passing along what we've learned is our essential purpose. So stay with us. Attorney Deja Vishny has a lot to share. 

 

Aaron Nelson  1:25  
Welcome, Deja. Thanks for joining me today. How are you?

 

Deja Vishny  1:30  
Good! And thanks for having me. 

 

Aaron Nelson  1:32  
Yeah, absolutely. And so. Appreciate you joining us. This is one of our first episodes of Sanctuary in the Jungle, an idea that I've had in my mind here for some time, and I'm glad to get us started. And so today, our guest is Deja Vishny. Deja has been a long time queen of criminal defense in Wisconsin, and we'll get to hear all about her career and some other thoughts and motivations. So how are you doing today, on this Friday afternoon, Deja?

 

Deja Vishny  2:01  
Well, it's a lovely day in Milwaukee. Summer is too short, so I'm very happy to be here and happy to get outside when we're done. 

 

Aaron Nelson  2:12  
Yeah. Well, good. So you're in Milwaukee now. I know that's not necessarily where your journey started. Tell us about that. Where'd you-Where'd you grow up?

 

Deja Vishny  2:22  
Well, I grew up in a suburb of Chicago and graduated Evanston High School. Came to Wisconsin at a pretty young age to go to the University of Wisconsin, got my undergrad degree, and then, after a year of working, went to law school there.

 

Aaron Nelson  2:40  
Tell me about, you know, were there any experiences in your childhood or growing up in high school that kind of motivated you to get into law?

 

Deja Vishny  2:51  
You know, I never thought I would be a lawyer. I didn't go to college with the intention of being lawyer. I started out as an English major. I wanted to be a writer. I ended up getting a degree in journalism, ultimately and but I would say that becoming a criminal defense lawyer was very much influenced for me by how I viewed the world and politics, and that was something I was brought up with a very strong sense of fighting for the underdog, of fighting for justice, fighting for equality as a child. My parents were very politically active when I was growing up. They took me to my first protest demonstration when I was 12 years old, it was the Democratic National Convention Chicago, not during the violent part. We watched that on TV, but in the daytime. Afterwards, in high school, I used to meet my father in downtown Chicago for the monthly moratorium day, protesting against the war. My dad tells me, when I was five years old, he took me to see Martin Luther King speak, but I have absolutely no memory of that. Independently, I have to rely on what he told me, but they were very politically active in both the civil rights and anti war movement, so it wasn't a big leap to have an interest in criminal defense. You know, I like to say that there are really kind of three legs to being a criminal defense lawyer or public defense, which I went into, one of which is being like a social worker, a person who cares deeply about people in their lives. 

 

Aaron Nelson  4:44  
Absolutely. 

 

Deja Vishny  4:45  
Two, I guess, for lack of a better word, fight the power. You know, a litigator, a fighter. And three, a person interested in social justice. So that was a very natural place for me to go professionally, once I decided it was going to be law school for me.

 

Aaron Nelson  5:07  
Well, tell me, what do you remember about the Democratic Convention in the protests in 1968 there? What are your memories of that?

 

Deja Vishny  5:16  
Well, I remember watching the police beat people up on TV, and I remember then Mayor Richard Daley saying, I don't know something about a riot or a police riot. I can't remember. I think he misspoke about something. You know, there had also been a lot of activity in Chicago after Martin Luther King was assassinated. I just remember, I hated the police and I hated Mayor Daley. You know, obviously this was from the mind of a 12 year old, but that that was how I viewed it at the time. And, you know, my parents didn't like Mayor Daley either, or the Chicago machine, and they certainly didn't care for the Chicago Police Department, which always had a reputation for really being corrupt and using a lot of excessive force, as we know.

 

Aaron Nelson  6:12  
Well, I'm and I imagine, you know, I appreciate you were only 12, but you were seeing people pretty close to your age probably suffering some violence at the hands of government employees, right?

 

Deja Vishny  6:24  
Yeah, absolutely. I mean, probably a lot of the protesters were in their upper teens, early 20s, would be my guess. I mean, you know, we all know about it from movies like The Chicago what was the Chicago eight became the Chicago seven. The judge was terrible. Famous lawyers who, you know, later, were kind of role models, were involved in the trial. Very interesting times.

 

Aaron Nelson  6:53  
Did you? Did you get a chance? Were you- I mean, again, appreciate you were you know, 12, 13, 14, then when the-as the case went on for the trial. But do you remember paying attention to that at all on the news or through the paper or going down to the courthouse?

 

Deja Vishny  7:08  
Oh, absolutely. Yes. I read about the trial. I don't remember if I went to the courthouse to protest, because I went downtown for protests so many times in high school, I cannot really separate out what was a moratorium day, what was protesting the trial. You know, my dad was a lawyer too, even though he was not a criminal defense lawyer, he was in business, not a guy to be in a courtroom. But there were other lawyers in my family and just talking about how terrible judge Julius Hoffman was, how unfair things were. There was the whole, I think, like handcuffing or restraining and gagging Bobby Seale in the courtroom, the only black accused person in the trial. So there was quite a bit really going on at the time.

 

Aaron Nelson  8:02  
So often now you probably had the same maybe you did, maybe you didn't. I know in private practice, sometimes my clientele is perhaps a little bit different than the traditional indigent client that you saw in Milwaukee in the public defender's office. But, so often, I found it my experience that people that come to me are surprised at the-their sense of unfairness within the criminal justice system. Did you have that when you were you know, clearly you showed up motivated to do this, because I imagine you brought with you this sense of the system's unfair. Is that true? 

 

Deja Vishny  8:40  
Yeah. I mean, I definitely felt the system was unfair, and I was aware of that at a young age. I think once you get into the system, it's not just an idea anymore, and you're not an outside observer, you're a participant. And even for me, it really changed between law school and practicing in the public defender's office in Racine. I had been in a clinical program in law school that is now defunct, but it was called legal defense project, and I actually did my first jury trial in a Dane County courtroom. Right-it was maybe like a week after I had taken my last law school exam and was ready to graduate. So there was-and in the clinical program, you know, we would go to court. We did motions, we did first appearances, we did misdemeanor cases, certain percentage of the public defender clientele. When I came to Racine, I was kind of in shock at how rude and dismissive the judges could be, because at least the judges I had practiced in front of in Dane County, and there were only a couple of them. So, you know, I don't know the bench there, really, but, but they were nice to and polite to people, and consider it. And then, like, I come into Racine, I remember I was arguing bail on a case, and the judge threatened to hold me in contempt because I didn't like his ruling, so I wouldn't quit arguing. And I'm like, what? So that was a big lesson to me.

 

Aaron Nelson  10:24  
Tell me more about that. When you say a big lesson, like a big lesson, like you should just shut up, or some other lesson?

 

Deja Vishny  10:31  
Well, the lesson of them being unfair, I kind of already knew that, because other lawyers in the office would tell you about the judges. I think one of the things I had to learn was how to refine my techniques so that I could do the job for my client but not tread on the edge of being in contempt. You know, I mean, there's things that you learn as a criminal defense lawyer about how to massage and how to finesse things, but still get your point across. You can't be timid in this profession, and you can't worry about whether people will like you, but you have to make them respect you, and you have to do the job for your client. That that's what we're there for. So, you know, I think every young lawyer-

 

Aaron Nelson  11:18  
You have to know your audience.

 

Deja Vishny  11:20  
Yeah. Every young lawyer has to adjust their personal style as they learn the ropes about, how am I going to do this?

 

Aaron Nelson  11:28  
Sure, so you're in school in Madison, you know, pursuing journalism. What? What flipped it for you when you said, you know, you weren't expecting to be a lawyer. What-where did that change come from? Was there a was a story of origin within-within that timeframe, or was it like a lot of us, there was just, you're really good at school and you just wanted to keep doing school?

 

Deja Vishny  11:53  
Well, I wasn't really good at school at all. I would say I was kind of a lousy student. Didn't really have a good enough grade point average to necessarily get into law school, so I really had to hustle. 

 

Deja Vishny  12:05  
That's suprising!

 

Deja Vishny  12:06  
Yeah, no, I wasn't-because I didn't care about school very much, and I had to really hustle on the law school admissions exam the LSAT to get a super high score so I could get in because my grades were not going to take me there. You know, in journalism school, I didn't love the style of writing. I found it very confining. I actually ended up more focusing on advertising, which has come in very handy for design and PowerPoint and things like that, learning some principles of how to lay things out and make them visually appealing. 

 

Aaron Nelson  12:45  
Part of persuasion, right? 

 

Deja Vishny  12:47  
Yeah. So, you know, I had, like a summer job for a non profit, working on a youth newsletter in Sun Prairie. It was, it's a kind of an excerpt suburb of Madison, but ultimately, you know, I was friends with a lot of people, and they suggested that I go to law school. They thought I would be a good lawyer, so I'm like, "Okay," I wasn't really excited about anything else I was doing, and I decided. I took the LSAT, I applied to law school, and the rest is history.

 

Aaron Nelson  13:25  
Yeah, tell me about what was law school like as a, you know, a young woman when you went there, when were you in law school? If we can ask such a question. 

 

Deja Vishny  13:35  
Sure, I was there 77 through 80. At that time, the proportion of students who were women was rapidly increasing. So my best memory is that women were between 40 and 45 maybe even closer to 50% of the law school class when I went. I didn't really feel discriminated against as a woman in law school, that wasn't a problem.

 

Aaron Nelson  14:03  
Oh, that's good. Seven years in Madison. Most people seven years in Madison, they kind of get stuck in Madison. What allowed you to, like, get out of the orbit of Madison?

 

Deja Vishny  14:13  
Well, it was actually eight years, because I worked for a year in between college and law school, but I wanted to get out immediately. Madison was not for me, having grown up around Chicago, it was just too small. You know, I liked it as a college town, and I like it as a visitor, but I wanted to be in a larger city. Okay, so there was no way I was going to stay there.

 

Aaron Nelson  14:39  
Do you recall, you know, a time when you decided you wanted to be a criminal defense lawyer like you wanted to tell other people's stories. In that sense, you said, there's, you know, these three, you know, the social worker caring part, there's the kind of fighting authority and Social Justice Warrior, you know, was there one that stood out for you, that you recall when you were in law school and decided to defend human beings?

 

Deja Vishny  15:08  
Well, I think it was the social justice warrior that motivated me to go there. But I went to law school with the very specific intent that I was going to do criminal defense work, and that I was going to become a public defender. I never applied for any other jobs. I just applied to become a public defender. And I wasn't adverse to doing civil rights work either. When I had been a lawyer for about a year, there was a young black man named Ernest Lacey who was killed by the Milwaukee Police Department. He was a young man who had come from painting a house. He had mental health problems. The police stopped him wrongfully because they had a report of a race suspect, or they probably just stopped him because he was black in the area, and they killed him. There were a lot of protests in Milwaukee at that time, in fact, as the protests began, I believe I was attending the National Criminal Defense College in Houston. I got involved because I'd been involved in protests, you know, my whole life. And eventually, the Center for Constitutional Rights came into Milwaukee and worked on the case, and they wanted local lawyers to be volunteers, and I was one of their volunteers. The the trial that we did was in front of the Milwaukee Fire and Police Commission to get the police officers who were involved either fired or at least disciplined. So we we did the trial. It happened in the evenings, so I went first shift. I would get to Racine, and then I would come back to Milwaukee to do the trial in the evening. It would go for a couple weeks. Then you'd have a week off. It was really interesting. That is actually where I learned the most I've ever learned about how to cross examine police officers and about forensic pathology. There was a lawyer who-there were different people in charge of the legal team, but the main person who was there all the time and-and managing the team was a lawyer named Ellen Yaroshefsky. She is a pretty well known criminal defense lawyer from New York. She had had a background at public defender. She worked at that time for the Center for Constitutional Rights. Later became a law professor, so she was another one of my really early mentors, and, I was very interested at that time, and potentially, like, Okay, I'm going to do this Milwaukee Public Defense thing, and then I'm going to move to New York and I'm going to work for the Center for Constitutional Rights. I love this group. They're fabulous, but it never happened. I never applied for the job. I never moved to New York. 

 

Aaron Nelson  17:46  
You're pretty happy with that choice?

 

Deja Vishny  17:49  
You know, I'm always happy with every choice I make, even when I don't like it right away, but when you look back, I'm just grateful that I have been so lucky to have had a great job, great colleagues, you know, both as a public defender here the other work, the work that I've done since I left the public defender's office, you know, as an independent lawyer. So I have no regrets.

 

Aaron Nelson  18:19  
How much do you think that just that mindset, which I always find remarkable in human beings and admirable in human beings, of just that grateful, how much do you think that mindset is influenced by the work that you've done?

 

Deja Vishny  18:33  
Look, I love being a criminal defense lawyer. I would never become a prosecutor. I have been recruited to be a prosecutor on more than one occasion. You know, I've had prosecution offices since I left the public defender office asked me to come be in charge of their, you know, conviction review unit. I had somebody try to recruit me to go to the Milwaukee district attorney's office. Not happening. So I think this is a great career choice. I just would never want to do it. I would not object, probably, to being a special prosecutor on a case where a police officer killed somebody by using excessive force or bias, or, you know, whatever, because that's very deeply disturbing, and not prosecuted often enough. And I think many of the things that we use as defense lawyers in terms of how police abuse our clients, you know, whether it's fourth amendment violations, improper interrogations, excessive force, you know, all of these things, and given the tremendous power that they wield in our society, I would consider that kind of akin to civil rights work, but outside of that, I could never see myself prosecuting cases. It's just someone else can go do that job. 

 

Aaron Nelson  20:00  
And do you think that's-that comes from that first prong that you said, you know, social work, caring for an individual, as opposed to perhaps a system or something like that. It's just, it's the humans, the people that you want to be with?

 

Deja Vishny  20:15  
Yeah, absolutely. And that is not to say, by the way, that I don't recall regard police officers as human beings, or that somebody accused in those cases aren't deserving of a defense. It's just what I am going to engage in.

 

Aaron Nelson  20:28  
Yeah, as you said, I think to begin with, you know your-your connection to the underdog, and it tends to be-the police don't tend to be thought of in that category, agreed?

 

Deja Vishny  20:41  
and that's because, except on rare occasion, they're not.

 

Aaron Nelson  20:46  
Yeah, yeah, absolutely. So I know you, throughout your career, have had, you know, well over 100 people that you've represented that have been accused of homicide. You know, you know, if we think of it in that sense, there must have been a time in your career when, obviously, you were, you were handling the more simple cases, right? And then it came to be, you were handed a homicide file. You were handed something that had, you know, a life changing consequence. Not that they all aren't, but obviously a Class A felony with a life imprisonment - that's just a different consequence. Do you remember that? And how did it, how did it feel to carry that weight?

 

Deja Vishny  21:28  
Well, you know, I started out, of course, like most people do, those cases as what we call the second chair, in other words, assisting a more experienced lawyer, doing some of the witnesses, maybe the opening statement. I don't recall all the details, but it was in Racine, there were a fair amount of homicide cases, and the two most experienced lawyers in the office did it, and the younger lawyers were their second chairs. So I had that experience there first. And when I came to Milwaukee, I think I second chaired another case or so, and within a couple years, I was now lead counsel in homicides, and started doing them. And I found the cases, the clients, very interesting, the issues complicated. There's just really a lot to learn. Ultimately, I decided, somewhere I'm not sure exactly when, but I decided I was going to really specialize that. I mean, I had done other serious felonies, shootings, sexual assaults, armed robberies. You know, there's no shortage of serious criminal charges in Racine or Milwaukee, and I'd been doing really, you know, felony work for quite a while at that point, but I found it challenging, interesting, and I wanted to specialize and be really, really good at it, you know, at the same time the public defender's office, it wasn't like this when I began, but eventually, in the 90s, they brought in some case weighting, and there were some changes in the legislation about the case loads. And I really, I mean one of the problems as a public defender is you have so many cases, and especially when you're doing misdemeanors, like, are you even going to remember your clients names all the time without taking a quick peek at the file and trying to cover up like, oh yeah, I know you! But I didn't want to have that many cases. I wanted to really be in depth. And this really became a strong goal of mine after I attended the National Criminal Defense College the second time, because the amount of preparation that it was going to really require to be really, really good, that-that's what I wanted to do. And so that is part of why I went into homicide work, you know, at the same time I was getting into training and teaching. So it gave me, you know, and homicides usually have two lawyers, so I was always working with another attorney. I mean, I-I don't think I've tried a jury trial alone since I've been a tenure lawyer. So I also had second chairs. Yeah, I also, you know, I'd become a supervisor for a while. I had second chairs for non-homicide cases, but in homicide cases, doing that, the brainstorming, you always have an investigator. I, you know, I'm really, can't, I can't stress enough how important it is to investigate cases, to do motions in cases, and those kind of cases really give you the opportunity to dig very, very deeply and to be a lawyer who can really do the job for the client, that's what you have to do. So that, that was actually a part of my motivation. And then as I did it, I, like, really grew to love it and to know it really well.

 

Aaron Nelson  24:57  
So at, you know, 125 People accused of homicide. You know, when I interviewed Rick Jones a year ago, and unfortunately, he's passed, but he was talking about just, homicides are the granddaddy of them all. You know, homicides are like, it's, it's everything to be a lawyer. What-how is it different? And I don't want to make it in a, like, a sexy way because this is-just what's the weight of a case involving death. It not only is involved your client, obviously, but just the courtroom is different. Victims are different. Everything's different. Tell us tell us us about that and how you deal with that. 

 

Deja Vishny  25:40  
Yeah. So I do want to say that I do think there are some other cases that can be as complicated, for example, child sex cases, you know, or very complex DNA cases. So I don't want to say like, oh, this is the ultimate. What I think is different about homicide cases is that there is a tremendous loss. There's a loss of life, and you-you have to be very upfront in understanding and dealing with that, because it's going to impact the work that you do. You are representing someone who is accused of killing somebody, and you know, most of the time they have killed somebody. Many of the cases are really about the circumstances of the death. What is the appropriate charge? Because there are many different types of homicides that have different penalties. There's also, of course, self defense or justifiable homicides, and not that many of the cases are really about another person caused the death. I mean, there are those, and I've certainly done those cases, but you know, there's-there's cases where it shouldn't be a homicide at all, it's an accident, and there's cases where the law just seems really unfair. For example, what I would say drug overdose homicides, where your client and somebody are using drugs together and the other person dies, and all of a sudden, your client is charged with a very serious homicide. So there's all different kinds of doing it, but I think the dynamics and the emotion of the case, they tend to be higher profile. So I've done a lot of cases that you know have been in the news, have had television coverage, not nationwide, but in Milwaukee or the other jurisdictions, and they, the public is much more concerned about it. There's the feelings and emotions of the families of the deceased, and I think it's really important to be respectful of that. There's when you're talking to the jury acknowledging a tragedy has occurred because somebody lost their life. There is, you know, upon conviction, going to be a lengthy sentence, and all but the very rarest of circumstances. I mean, I have had a homicide client get probation, but that's very unusual. So, you know, there there's a lot going on, and there's a lot of emotion in the courtroom. You know, one of the things that I do, and I don't know if, if there are other lawyers who do that, but I always approach the family of the deceased and tell them I'm sorry for their loss. Now, I didn't do that right away, and I'm telling you, the first time I did, I was so nervous. Oh, I bet about doing that, and I would say I probably had a little bit of nervousness every time I've done it, most of those people have been warm and thanked me, but I won't say there haven't been a couple who went and complained to the victim witness person that they were offended because they're happy. It doesn't stop me from doing it. Obviously, if someone's offended, I'm not going to have any further contact with them. I'm going to respect them.

 

Aaron Nelson  29:20  
Why do you think it's important to do that?

 

Deja Vishny  29:25  
Because you're acknowledging the loss of another human being, and it's a tragic loss, whether your client caused it or not, whether it was justified or not, but you-you can't leave your humanity at the door when you're a criminal defense lawyer, and I've seen some incredible things happen. I mean, I have had homicide cases where the mother of the deceased and the mother of my client have hugged each other and cried in each other's arms in a court room. 

 

Aaron Nelson  29:54  
Oh my gosh, that's amazing.

 

Deja Vishny  29:56  
It does. It happens. It doesn't mean that the family of the deceased didn't want the person who had killed their child to be-pay for their crime, so to speak. But, but they recognize that each other's side has suffered a tremendous loss, and you have to go into the courtroom with your full amount of humanity, and that includes acknowledging the pain of people who you are not representing.

 

Aaron Nelson  30:28  
You know this, you know the podcast is called Sanctuary in the Jungle, and it's, you know, from a quote from Edward Bennett Williams that he used in a Supreme Court argument talking about procedural justice, which I, you know, I want to talk to you about, because I know you wrote a whole book on procedure or things related to procedural justice. But for me, there's also just this. Like you said, this a sanctuary is also just a place where people are heard, where people have dignity, where people's humanity is expressed and acknowledged. You know, as criminal defense attorneys, we don't always control the environment or even get to create the environment, but it sounds like you've done some things to help that sanctuary. What can we do, you know, to promote more healing, because it sounds like when the client's family and the victim's family hugged, there was some healing. And there's, there's-so rarely is there healing in our in our criminal justice system.

 

Deja Vishny  31:32  
You know, I think that's a really interesting question. I mean, one of the things I have explored, actually, in some homicide cases, is this whole idea of restorative justice, where there can be a meeting of the person who has caused somebody's death and the survivors, you know, the relatives, friends, whatever, the victims who are alive. In the case, it doesn't happen very often, but I have read about it occurring. There was a story The New York Times several years ago about a domestic violence homicide that had occurred somewhere out east. And there, you know, there was a prosecution, and the man who had killed his significant other or wife, I'm not sure, did eventually meet with the parents, and they wanted that meeting. Both sides wanted that meeting. And that was something, you know, really great, I think ,that happened. It doesn't always go that way. Some, you know, like - but if there's an opportunity for that to happen, I think it can be a good thing. It's not going to happen all the time. I mean, the the family of the deceased has to really it has to kind of start with them if it's going to really happen. They've suffered the greatest loss. Obviously, the family of your client is also suffering a great loss. Your client is suffering loss of freedom, unless they're found not guilty. So it just depends. But you know, I've also had some experiences that were unusual, you know, very, very strong reactions by victims families that we can talk about later. But to get back to this question of a sanctuary, which is what I think you wanted to talk about. I don't think it happens that often, because it really takes everybody in the courtroom coming in with that kind of respectful attitude, and so you need a prosecutor who is going to do a really good job but respects the role of defense counsel, right, and doesn't look at your client as less than human. It's going to take a judge who's going to recognize everyone's humanity. It's going to take a client who's there, their family who's there, the family of the deceased who's there. That's a lot of people to bring together on one particular case. So it does happen sometimes, but a lot of times it doesn't happen. You have to be prepared and open for whatever is going to happen when you walk into that courtroom, because you don't know, I mean, the first person you meet, or that I meet, of course, is the client. And the prosecutors; we'd have the same ones over and over, but, you know, you just have to kind of see what's going to occur.

 

Aaron Nelson  34:36  
How-you know, as criminal defense lawyers, I think all of us, do we think of the social worker side? Sure, and there's certainly some that maybe are further along on that, on that side of the continuum than else. But you know, you mentioned warrior. When you said social justice warrior, you mentioned kind of a fighter against authority. You know, I find that that's often the easiest way for me to gain credibility with my client is to project the warrior, right, in some sort of manner. But, and I know I've seen you, you're brilliant, you're fantastic, you, you know, you are a warrior in every sense, but there's this, this sense that you're talking about, where you can still talk, reach out to the other side. I struggle with that. How do you do that with your client? How do you communicate with your client? I'm going to go to the other side, and I'm going to offer my condolences. Is that something that that is just as simple as doing what I just said? Is that something that's a little more complicated? Tell me about that.

 

Deja Vishny  35:44  
I'm not sure that the client necessarily sees that, because when you're representing somebody in a homicide, until it's time for their case to be called, they're in custody almost all of the time. I'm have very few out of custody people. So, I don't know, but I'm certainly not ashamed to tell the client that I'm going to do that. And you know, because I spend a lot of time with clients I don't, it's very rare for me to have clients who don't trust me. So when I say this is in the best interest of your case. You know, there's also, like, the talking to the prosecutor. The clients see a lot of that. They're in the court, you know, during breaks, and you have to communicate. And you know you can be friendly to the prosecutor. It doesn't mean you're friends, like, I don't go out drinking with them, but sure, you know you could be friendly or pleasant, or, you know, little pleasantries, like, how was your weekend, or whatever, that just makes you better in the courtroom, easier to get along with people, and you just have to explain it to your client. And because when you spend a lot of time with your client, they trust you. They know that you're fighting for them. You've shown them that. Now there's a lot of clients who are really mistrustful and get really upset about that, but usually that calms down as the case goes on and they watch you work.

 

Aaron Nelson  37:09  
Yeah, they've seen you stand up for them, right? I mean, right, most of our clients, oftentimes, have never had somebody stand up for them. So once they see, oh, look at Dejah standing up for him, you might be the first person that's ever spoken on their behalf.

 

Deja Vishny  37:24  
That can often happen. And you know, there's also something about public defense clients, which is the private clients have chosen you, you know, or their families have chosen you, whoever is look, you know, footing the bill, but they've had an opportunity to make a decision: I want this lawyer. They don't have that opportunity when they get a lawyer from the public defender's office, which is why, and I probably started doing this maybe 10, fsssss15, years in my career. It wasn't something I did right away, but something I tell people they should do the first time I see a client, before I even start to ask them about themselves, I tell them about me, and you know, and you know, fortunately, being a more experienced lawyer, I have a lot to say. You know about the things I've done, and you know what I can do for them, you know, and what I can promise I can obviously, I can't promise to win their case. I can promise to fight their case. You know, I can promise, I can't promise a result, but I can promise that I hope to get the best result possible, so on and so forth. And I always ask them questions about my qualifications. And the other thing I always do is I say, ask anybody about me. You know, you're in the jail. Just ask around, ask your family. I don't think many people do that, but it inspires confidence in the client. And I'll say, I know you didn't get to choose me, you know, and, and this is what I want to tell you, and I want to share with you, and I really encourage younger lawyers to do that on every single case, even if you just got out of law school. You know, and you're in the public defender's office, there's things you could say. You can say, we have a whole team of people. We have investigators, we have mitigation specialists, you know, we have computerized legal research. We have paralegals. You can do things to inspire that you're going to do a really good job and work really hard for the person. And in my opinion, you should treat that person as if they came in and they were paying you $1,000 an hour to do their case.

 

Aaron Nelson  39:35  
Absolutely. Absolutely. And it's just going to like you said, it's going to create a better environment for them. They're probably going to be more open to telling you things that are going to be helpful in the case, or landmines to know where to avoid, perhaps, there's just, you know, the better the communication, the better the representation, right?

 

Deja Vishny  39:52  
Yeah, I agree.

 

Aaron Nelson  39:55  
So, you know, I would imagine that a lot of the clients. That you've seen, that you've represented over time, are people that have you know they're coming to you having suffered trauma in their life, right? They've 

 

Deja Vishny  40:11  
Absolutely. 

 

Aaron Nelson  40:12  
whether its childhood trauma or adult trauma or been victims themselves. How do you as a, you know, somebody who's done this for so long and handled this weight, how are you able to deal with what, I think for you, for criminal defense attorneys, is this second hand trauma, to just witness somebody else's pain, witness somebody else's suffering, witness, maybe even an unfairness in that, in that moment. How, how do you find-what helps you to handle that?

 

Deja Vishny  40:43  
You know, I really kind of can't say. You know, I know there's been a lot of talk about secondary trauma and self care. I certainly know that many criminal defense lawyers drink way too much. 

 

Aaron Nelson  40:58  
Sure.

 

Deja Vishny  40:59  
When you're in trial, you barely sleep. You know, for me, I think I am- I never merge my identity with that of the client. It is still their trauma. So you know, I may feel very deeply emotional about it, but the more experienced I became, the easier it was for me to compartmentalize what's going on. And I think that that's really very important>So you're engaged with the client, but I have seen people merge their identity with the client in a way that is not emotionally healthy. They, they can be fabulous lawyers, don't get me wrong, but I I think it's unfortunate for them that that occurs, and that doesn't mean that you don't care, or that you don't work hard, or that you're not nervous when you go in the courtroom. I mean, I'm still nervous every time I go in court, but, 

 

Aaron Nelson  42:10  
Sure. 

 

Deja Vishny  42:10  
Yeah, but I don't think it's emotionally healthy, and I guess I'm just lucky that I don't do that or haven't done it for a really long time.

 

Aaron Nelson  42:22  
Just, just, yeah. I mean, we all have our own wiring, right? We all have to throw out our own boundaries. And I like you, I think I'm, you know, the benefit of doing this for some time I've-I'm better at knowing what my boundaries are. They might be different than your boundaries. They might be different than Keith's boundaries, but I know what they are for me, and then I can just - I'm more comfortable with them, and I think that's more important than anything is just that we're comfortable with whatever those boundaries are. 

 

Aaron Nelson  42:52  
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Aaron Nelson  43:41  
Part of the whole phrase Sanctuary in the Jungle, you know, the person that's the most, most responsible for the environment in the courtroom is certainly going to be the judge. And sanctuary is something that, you know, there's dignity, there's respect. People's voices are heard, and that obviously includes the criminal defense attorney and the criminal defendant, and that's going to, in the long run, be something that's-that's better. Why do you-why do you think it is that there are some people in those, in those robes or in that power position that just even if there's evidence that says it's it's going to improve the process, it's going to improve the results, it's going to make it better for everyone. Why is it still not happening?

 

Deja Vishny  44:39  
You know, I don't know. I assume it has 

 

Aaron Nelson  44:42  
Solve the world's problems, Deja!

 

Deja Vishny  44:44  
Yeah, yeah, would love to. I can think of a lot of things I'd work on, but maybe it's a function of people's personalities, you know, I-I can imagine they probably get burned out on their jobs too, but 

 

Deja Vishny  44:57  
Sure.

 

Deja Vishny  44:58  
You know, I don't know people's reasons for wanting to become judges, I'm sure they're just as varied as people's reasons for wanting to be prosecutors, criminal defense lawyers, or get into any career. But you know, there's a thing that we criminal defense lawyers, I'm sure you've heard this phrase robe-itus. It's like a virus you get when you're on the bench, and it's probably a function of people's individual personalities. You would hope that judges, not every judge has been on our side of the courtroom. Some people have come from different areas to the bench where they didn't try a lot of cases, they didn't have big case loads, and are not, are just not very empathetic people. People get appointed to the bench because of political reasons, you know. And again, I don't want to denigrate the really great judges who are out there, because I have been very lucky to- 

 

Aaron Nelson  45:59  
Absolutely not. No, there's some fantastic, brilliant people. 

 

Deja Vishny  46:06  
Right. Brilliant, but not just brilliant, compassionate, nice, considerate, empathetic. They may have to give a really long sentence to somebody, but they do it in a really nice and respectful way. They treat everybody really well in the courtroom. I mean, I've certainly been lucky enough to practice a lot in front of judges like that.

 

Aaron Nelson  46:20  
Yeah, no, I had to recently it was, don't want to get too much-but I recently had a sentencing in a homicide case where it was exactly as you said. Afterwards, the family of the victim and the family of my client went out and and hugged and I it was even at this stage of my career. It was transformative for me to see that.

 

Deja Vishny  46:43  
Right. 

 

Aaron Nelson  46:43  
For me to kind of watch that it was so moving. And I like to think I played a part in it, but I know for sure the judge played a part in it. You know, just the words that were-that he chose to use in speaking to everybody in the courtroom, that plays a huge part. So I agree, there's absolutely plenty of compassionate, caring, thoughtful judges out there, but not all of them, necessarily. 

 

Deja Vishny  47:11  
Yeah. I mean, it's just, it's kind of that way in life, right? No matter what career you're in, and, you know, there's a certain lack of civility that permeates American life, and I think it's getting worse, and it's gonna occur in the courtroom as well. You know, I've also seen some really terrible things, like fist fights. I mean, there's fist fights in the hallway in courtrooms.

 

Aaron Nelson  47:42  
So let me ask you this me, you know, maybe this has been going on forever, but I hear stories, and I even sometimes when I'm in the courtroom, I, you know, am asked questions about, you know, this case has been going on so long that there's statistics that the judges are being told about how long the case is and, and how long a case should take, and just the efficiency, right? And, I think you would probably agree that, you know, oftentimes, the things we measure are all of a sudden become the things that we value. And I worry, in part of this, maybe it's changed, at least it seems like, in my career, it's that we're now putting more value in that efficiency, as opposed to procedural justice, right? If we're gonna do procedural justice, that's-the whole idea is it slows everything down, and there's this conflict between efficiency and due process, and efficiencies winning now.

 

Deja Vishny  48:42  
Well, I know that to be true. You know, in Milwaukee, I can't say every county in Wisconsin or other jurisdictions, but in Milwaukee, they have numbers. I've had judges show me their numbers on their computer screens. So I assume this is probably coming from the director of state courts, and is universal, not just the chief judge in any one jurisdiction. But it does. It shows the average number of days a case is pending. You know, one of the things that I think is really problematic is when a judge tries to get a case to trial too quickly, like for a while, and again, I haven't actually all the cases I've done since I've left the Milwaukee Public Defender's Office have been in other counties so, and I haven't run into this problem in those cases, but they used to, like, insist on setting a homicide trial within 90 days. I mean, that's crazy. You end up having adjournments. It would be a lot better if you came in and you said, I need this amount of time judge, and I will be ready, you know, and unless something happens like you didn't get the discovery or you didn't get it on time, let's say the crime lab delayed analyzing something, and now you need an expert, but otherwise it should be enough time to bring your motions, have your investigation. And do the pretrial litigation. I think that would actually be ultimately more efficient than coming back every two or three months and begging for an adjournment of the case. I'm not saying judges shouldn't worry about this kind of thing, but they can't be obsessed with it. So, I mean, the reality is, you know, the homicide cases I did that went to trial, the trials were almost always about a year or two after the initial charging, almost always.

 

Aaron Nelson  50:37  
Yeah, that's pretty common. You know, 12 to 18 months later is when you're gonna have a trial.

 

Deja Vishny  50:43  
Right. And you know the idea that you have to go set it for 90 days, and then they give you another 90 days, to me, it's just kind of silly. There have been a few very straightforward cases that have been able to resolve by then, but that's in a homicide, that's very rare. 

 

Aaron Nelson  51:03  
Yeah, exactly.

 

Deja Vishny  51:04  
You know, on the other hand, misdemeanors, you know, they can go faster, so.

 

Aaron Nelson  51:09  
Yeah, you know. And so in preparation for this, and in some of the other interviews, just I've been reading a lot about procedural justice, and the research says that when litigants believe the court system is fair, they are more likely to comply with the court's orders in the law and so and that seems to be clear. Again, the research is if this litig, if the people involved think it's fair, they're going to be more compliant. But yet-that's the evidence. But we see something different happening on a day to day basis, with our with our leaders. I know that happens in all kinds of different areas where it doesn't matter what the evidence is. What do you think we, as you know, participants in that, as criminal defense lawyers can do other than just keep educating, educating, educating. You have any other any other words of wisdom or advice? 

 

Deja Vishny  52:03  
Well, I do think that educating is important, and, you know, maybe we should be pressing more to get involved in that through the judicial education people. Recently in Milwaukee County, for example, the judges had a session where they invited the Milwaukee County District Attorney's office to come in and talk about warrants for cell phones and what the circumstances are and the probable cause, you know, and the public defender's office was allowed to send somebody, a representative, there and also listen to what happened. They should have also invited a criminal defense lawyer, or they should have another session about a criminal defense lawyer to hear that perspective. This happened after a warrant was issued in a particular case in Milwaukee, where, in my humble opinion, it should have never been issued. There really wasn't probable cause, so it probably caused some second thoughts on certain people's parts, but. I would like to see us really be regarded as an equally important part of the criminal legal system.

 

Aaron Nelson  53:22  
As opposed to just this gnat that we just need to swat and get away with, we're just annoyance. That's what it-that's what it feels like, right? 

 

Deja Vishny  53:31  
sometimes

 

Aaron Nelson  53:31  
It feels like for me, I'm constantly asking for more attention, more, more something.

 

Deja Vishny  53:37  
Yeah, you know, I agree, but again, I don't think it's by quote, unquote, sucking up. 

 

Aaron Nelson  53:44  
No

 

Deja Vishny  53:46  
I think it's about being respected and demanding that respect, but also, you know, being very professional, and being well prepared. And, you know, I wish every lawyer was like that, and many of them aren't, unfortunately, both on the prosecution and the defense side. You know, you see people who are not really doing the job, at least the way I would advocate that people do it.

 

Aaron Nelson  54:16  
Oh my gosh, yeah, the standards are pretty low sometimes, you know, like, I don't know, read the file, read the law. You know, those are 

 

Deja Vishny  54:24  
right, absolutely 

 

Aaron Nelson  54:25  
those are a good place to start. So let me shift gears here for a second, because I know, you know, you've you obviously were a long time public defender within a couple of different offices, and, you know, that community, I imagine, was important to you. But you're also, as you mentioned before, you're a member, now, a faculty member of the National Criminal Defense College. You're, I believe, on the board-you've worked a lot with NACDL, the National Association of Criminal Defense Lawyers. How important are each of those communities? Were they to you, or do they continue to be to you to make sure that you have the-the wherewithal and the motivation to keep fighting injustice.

 

Deja Vishny  55:05  
Oh, yeah, absolutely. So I'll talk about the National Criminal Defense College first. I've been on the faculty there since 1998, so that's a really long time. I love the National Criminal Defense College. It was inspiring to attend as a participant. Obviously a real honor to be asked to be on the faculty. I think, you know, what's really great about the National Criminal Defense College is many people who've gone form lifelong friendships. The faculty, I don't know a single faculty member who doesn't say: here's my email, here's my phone number, if you need something, just give me a call. I'm willing to help you. The connections are incredible. When I in the early days, when I was teaching, they used to have a faculty t shirt. It said to teach is to learn twice. I thought that was a great slogan. They should bring it back. 

 

Aaron Nelson  55:58  
I love that. They should.

 

Deja Vishny  55:59  
Yeah, it is. I mean, I've just learned so much from my colleagues there, and a lot of the things, you know, I remember, I was giving a talk recently and said something. This was an NACDL meeting, and another person, who was another speaker, came up and said: oh, I love this, can I use this? And I said, Yeah. And I didn't make it up, someone else, I don't remember who said this

 

Aaron Nelson  56:21  
Yeah, we're all we're all borrowing or stealing or taking from from our colleagues.

 

Deja Vishny  56:28  
Right, yeah. I mean, what I had said was: you score points and cross you add them up and closing. Somebody said that once, and I remembered it because it's kind of pithy and helpful. And, you know, that's for everybody. So I think the camaraderie, the sharing, is really phenomenal.

 

Aaron Nelson  56:47  
You know, I've-I have some attorneys here that work with me, and oftentimes when I'm there now, as faculty at NCDC, people might ask, you know, is it, is it better to go early in your career? Is it better to go, you know, 10 years in? I went as a student, I must have been over 15 years as a lawyer. What was that like to have both experiences, to have it as a, you know, a younger lawyer, and then, you know, you probably had 100 trials under your belt by the time you went there in 1990.

 

Deja Vishny  57:19  
Well, I didn't have 100 trials under my belt because, of course, it slowed down once I got into felonies, but-but, you know, I think both are really good, but it just depends on the individual. As a person who teaches there, and I think one of the benefits of going when you're a young lawyer who hasn't done much is you don't have a lot of bad habits that you have to unlearn that you thought were okay. So there's something really great about that and about getting the training. On the other hand, when you're a more experienced lawyer, you have a lot to draw on, and you also can advance your skills. I mean, there's so much as a trial lawyer that you have to know. You have really the time that you're there, you have multiple audiences. You have to persuade the jury, of course. You have to persuade the judge about the law, and you have to persuade your client that you're doing a good job, so they have confidence. I mean, that starts the minute you meet your client. And I think in some ways, you've got to persuade the prosecutor that you're a force to be reckoned with. So you have a lot of different audiences. Sometimes the press is there, and you have to deal with them, which I absolutely hate. But some, you know, we have no control over that. So there's, there's quite a bit you have to know evidence. You have to know about all the exhibits. You have to like listen to every word for hours on end. You have to be well prepared. But on the other hand, you've got to totally think on your feet and be prepared to deviate from your script, so you can't master that all in your first year. And in fact, I don't know that anybody ever really masters that. I haven't done a trial and not learned a great deal from it, even as a lawyer practicing over 40 years.

 

Aaron Nelson  59:19  
Yeah, and I was gonna say in my 30th year, I'm like, I haven't. I feel like I'm striving, but certainly have not mastered any, any of that. Just every time, the more you know it feels like, the more you realize you don't know.

 

Deja Vishny  59:32  
Yeah, I mean, I'm learning every single trial I do. There is just something to learn. Even if you're someone who people say, oh, they're at the top of their game. I mean, that's great, but you have to approach the courtroom with a certain amount of humility and openness.

 

Aaron Nelson  59:49  
Well, I often say that, you know the the best and the worst thing about our job is we show up and are constantly told you're wrong. You're wrong. You're wrong, you're wrong.

 

Deja Vishny  1:00:01  
Right? 

 

Aaron Nelson  1:00:01  
And you just you, you have to look in the mirror and sometimes ask: am I wrong or am I right? Oftentimes, I'm like: no, I'm doing fine. But you need to-where does that come from for you? Where did you get that confidence when you know, just as criminal defense lawyers, we get we get beat down. Where do you think you you get that energy or that confidence?

 

Deja Vishny  1:00:24  
Well, I don't walk in there thinking I'm wrong just because I've lost. I mean, first of all, sometimes, you know I may be arguing something, and I know I'm very likely to lose, but I'm still going to give it my best effort. I think it's that attitude. There's a space between you're going to lose and you're going to win, where the preparation and the determination and the ability to stick with it, that's where you can really make a difference. I mean, look, we've all seen not very good lawyers win trials, right? Both prosecutors and defense lawyers. We've all practiced in front of some really top notch, fantastic, you know, great legal minds on the bench, great demeanor, really fair, and then those who don't match those standards

 

Aaron Nelson  1:01:16  
Yes. 

 

Deja Vishny  1:01:16  
So you know, we've all been there, and you just have to really do the best you can with what you've got. And in my opinion, it's very low on the talent side and very high on the preparation side. So yeah, how much you work? I think my very first jury trial, the one I did in law school, I spent 100 hours preparing that case, which

 

Aaron Nelson  1:01:42  
Isn't that crazy to think about. 

 

Deja Vishny  1:01:44  
Yeah, I mean, obviously, for a misdemeanor disorderly conduct and resisting arrest, you did what? But that's what it took initially. And I remember the very first cross examination I did in that trial, my supervising attorney had turned to me right then and there in the courtroom and said: that was terrible. You didn't do anything to that witness. Literally. And then the head of the program told me I had not worked hard enough on it. Oh, so I didn't always have a loving and supportive environment, but that just made me more determined. And you know, it came out as a not guilty verdict on one-on the more serious count. It came out as a hung jury on the other one, and the prosecutor dismissed it. And yeah, so I had the satisfaction of, kind of like: screw you. But to this supervisory people.

 

Aaron Nelson  1:02:37  
Where do you think that comes from? I mean, just in the sense of your not-obviously both your work ethic, but also your work ethic and your confidence, you know, as a as a young person in this world, you have mentors, and they're they're not helping you, but you, instead of responding in a give up way, you're like, I'll show you, you know, I'll show you. 

 

Deja Vishny  1:03:02  
Absolutely. 

 

Aaron Nelson  1:03:04  
Where's that come from?

 

Deja Vishny  1:03:05  
What in me? I don't know. It's just, it's just who I am. I can't really say that. I was probably born to be a lawyer, because I argue with people so much. But I do like to tell that story, especially about the you know, the remark about cross examining the witness. I like to tell it when I teach people, because there's a certain mythology when a young lawyer, you know, meets a very experienced attorney who they've heard of and they respect. And I want to share with people, this isn't about being born talented. This is something you can do. Don't feel intimidated. You can absolutely do this. Obviously, the way I was treated by that supervising attorney, those kind of comments were inexcusable. I would never say that to somebody you know, but especially while you're right in trial. But

 

Aaron Nelson  1:03:58  
Yeah, that's not gonna improve your performance. 

 

Deja Vishny  1:04:00  
No, no, it just makes you feel like shit, right? 

 

Aaron Nelson  1:04:04  
Yeah

 

Deja Vishny  1:04:04  
But, yeah, you feel bad, but, but I want people to know that, you know, doing really well and being respected in the courtroom is achievable. It's something you have to work at.

 

Aaron Nelson  1:04:19  
Big thanks to you. I mean, I think I met you sometime in the in the 2000s when I was a student at the Wisconsin trial skills. And you were kind enough to perhaps see something in me and invite me back as as faculty. And then you and Keith Belzer, a good friend of ours, convinced me to go to NCDC, and, I'm very thankful that I'm on the faculty there. In many ways, it's been career changing opportunities for me. And I think my my one time, maybe two times, that I've spoke for NACDL, both of the times were because you-you invited me, or I got to do that through that, and those were also wonderful experiences. So I can speak for me, great, thanks. But I imagine I'm one of hundreds of, probably criminal defense attorneys who've, you've influenced, and you've inspired and you've motivated. So thank you.

 

Deja Vishny  1:05:18  
Well, thank you for those kind words. And you know, I mean, I'm here on this Earth only a short period of time, but our profession is constantly changing, constantly growing, constantly bringing in new people. And, you know, I think we have an obligation to help younger people really do the best for our clients, because the social problems, the criminal legal system problems that we see, they're going to persist. And, you know, we need people. I mean, obviously, you know, your energy can wane a little bit as you get older, so you want to always, I think, pass it on. We're not really doing this for ourselves. We're doing this for other people. You know

 

Aaron Nelson  1:05:58  
Yeah, absolutely. 

 

Deja Vishny  1:06:01  
We've had wonderful careers and wonderful lives, but we are in a service capacity, and we serve others 

 

Aaron Nelson  1:06:08  
Absolutely. I mean, for me, at least it's, you know, to think that anyone's going to remember my name in 100 years is, is there's no way. There's no chance. Which is fine. That's very 

 

Deja Vishny  1:06:20  
Right. Absolutely. 

 

Aaron Nelson  1:06:21  
That's, that's a humbling thing for me. But to to be able to here in this moment, then to serve and do what we can, I think, is, is I to echo what you said, I guess, 

 

Deja Vishny  1:06:31  
Right. Yeah. 

 

Aaron Nelson  1:06:33  
So in closing, here, maybe just a couple of questions. You know, any advice for any of those other you know listeners out there, young lawyers, old lawyers, you know, that are still just trying to figure out why to get up today and keep fighting the fight.

 

Deja Vishny  1:06:48  
You know, we are changing the world one client at a time, and that's what we can do. We can change the world in many other ways, outside of our law practice, and don't give up on that either. I mean, I still go to protest demonstrations. So I am still, you know, deeply concerned being involved in your community, being involved in politics, but what we do is really important. We have a terrific impact on each and every client who we work for, on each and every lawyer that we work with, and I hope that people will be devoted and for all of the public defenders out there, you know, you can take the person, the lawyer, out of the public defender, but you cannot take the public defender out of the lawyer. So just stick with it, because it's totally worth it,

 

Aaron Nelson  1:07:42  
Absolutely. Well, thank you so much for spending this afternoon with me. I've got a list of questions up here, and I think I only covered half of them, but we'll have to have you on for another time. I wanted to chat about your book and some more about procedural justice, but I know you have things to do here on this on this Friday. So Deja Vishny, thank you so much for joining us here on Sanctuary in the Jungle, and everybody else we'll catch you next time.

 

Deja Vishny  1:08:07  
And thank you for inviting me. 

 

Deja Vishny  1:08:09  
Absolutely, Deja.

 

Aaron Nelson  1:08:19  
Thanks for listening to Sanctuary in the jungle. This episode was brought to you by Nelson Defense Group and MadeDaily. Subscribe to Sanctuary now and never miss another episode. You can also sign up for our newsletter on our website and follow us on social media for new bonus content. We'll see you next time at the library for another episode. Until then, stay strong and carry the hope.