a public defender

Why? Because it’s human nature: People like to win. But more often than not, it’s because people let their egos get involved.

While I take my work very seriously, I’ve learned — by example from those far wiser than I — not to take myself so damned seriously. I’ve found that when people do that, it becomes less about winning and losing.

Charge!

(I don’t know where that “Charge!” bit came from. It just slipped out.)

It has never been about justice for me its always been about winning… But I don’t try to win for myself but rather for my client. If I win he goes free, if I loose he goes to jail.

I can’t phantom the idea of justice being my benchmark. If I was seeking justice then I would be biased by the pain/loss suffered by the victim and their families. I cant carry that burden.

In order for me to survive I have to take on each of my cases believing that the cops are lying and violated my clients rights; that the witnesses are lying and have ulterior motives; that the DA has a hard on for my client and wants him to do excessive jail time and that my client is innocent and is telling me the truth, or in the alternative suffers from a illness (drug addiction)and needs help.

Am I sick?!?!?

Here was some street justice dealt to a witness:

http://www.cnn.com/2007/US/law/12/17/kaye.witnessprotection/index.html

Note what happened. The defense attorney gave away the personal info of the witness to the defendants. Nice. You guys routinely rail about prosecutors railroading your guys etc. But it’s incidents like this (and defense attorneys handing out info about witnesses to defendants is not unheard of, despite the clear dangers to the witnesses) that I suspect make prosecutors the way they are. Couple that with the fact that a lost case almost always will equal new victims (criminals tend to commit crimes)–it’s a wonder why there aren’t more Nancy Graces (who, I agree, is execrable).

I always give my client all of the information I have about the case. Names, addesses, phone numbers and whatever else included. I have never had a problem. I find that the vast majority of the time the client knows exactly who is involved with the case and exactly where to find them. And still, no witness problems.
Even if there were I wouldn’t stop that practice.

The last thing I am going to do is start to censor the information I give to my client. It’s their file, not mine. If it’s in my file, they get it.

It’s not likely that you would have the problem. It would be some witness who would have the problem. Nice to see how cavalier you are with the safety of witnesses.

I just re-read your post, Long Time, you mean to say that if a witness were harmed that you would continue to give people’s home address? Wow. I’ll just let that bit of evil speak for itself.

I think evil is a little strong for simply making discovery available to my clients. Is it really my job to go over all the police reports and discovery with a black marker and remove all the information I think my client shouldn’t have?

That’s not my job. As a human being I don’t like to see anyone harmed for any reason. As a lawyer I do my job. And my job is not to join the State in hiding the ball from my clients. In every state I know of there are procedures for the State and the courts to keep sensitive information sealed. If they do that according to the law, fine. If the State gives me information, then I MUST share it with my client. Put another way, unless ordered not to disclose information by a valid court order, how do I ethically justify unilaterally hiding information from my client? I don’t think I can.

I don’t think I’m at the extreme end of this question. I’m happy to re-examine my practice if people think I am.

So Long Time PD, let’s say I, a married father of two, am a witness to some gang shooting or something–you’re going to hand over my address to the people accused. My kids could die over that. And you’re willing to roll the dice with their lives over some false notion that ethics require you to hand over the info. [edited: let's keep things civil]

So, SPO, using that same logic, shouldn’t the public sex offender registries have been taken down once the first vigilante used it to kill a released sex offender?

Or are their lives not worth as much because they’re criminals?

What if the witness you speak of had a criminal record? Would you be okay with handing over contents of the file to the client then?

What if they were black?

Big difference. Sex offender registries (which I agree need to be less than what they are–we really need to focus on some of the more dangerous sex offenders) are a lawful punishment. People have a choice in whether they get on them or not, and the sex offender registry is designed for people to know which houses to avoid–we have a sex offender near us–we give his house a wide berth. If you’re a witness to a crime, you really (at least legally speaking anyway) have an obligation to give the sovereign your evidence. As for convicted criminals as witnesses, I think your question silly. If someone is a convicted criminal, but is doing the right thing by testifying, then I don’t see how his life should be messed with.

In any event, I find your question about black people offensive. Black life and white life is of equal value to me. I well know that black law-abiding citizens are the ones who disproportionately pay the price when it comes to crimes against witnesses in terms of increased criminality in their neighborhoods and in terms of being victims of witness intimidation crimes.

You and your brethren who defend the right to hand out addresses to accused criminals are beneath contempt. Let me ask you–let’s say you have guilty client, and the complaining witness gets threatened and therefore clams up, and the state has to drop the case, do you enjoy the win? My bet is that you do.

And I don’t think you should have edited it. I really do mean what I said about Long Term. That he;s willing to roll the dice with people’s safety is appalling.

If the complaining witness clams up, I’m pretty sure that even if that case is dropped, my client is getting charged with tampering with a witness.

Yes, it is absolutely a real ethical duty to hand over everything in the file to the client. It is not your file, it is the client’s file.

My question about black people stems simply from your statements over a period of time that black defendants and/or black victims are “different”. The comments are there on the blog; anyone who wants to verify can go back and read them.

As to the witnesses with criminal records, they’re doing the right thing so their life shouldn’t be messed with, but it’s okay if their murderers are charged with death at a lower rate, because “Percentage-wise, black victims of homicide are more likely to be criminals, more likely to be victims of non-capital eligible murders.”

Incidentally, you’re wrong. The study shows that the more “urban” areas charge death at the highest rates, compared to the non-urban areas. Yet, there is an over 21% disparity in the charging depending on the race of the victim.

I thought it appropriate to edit the comment. Sorry if you disagree.

Gideon, the rates of charging death are irrelevant because you don’t do weighting. Let’s say rural county has five murders and doesnt seek death and an urban county has 100 murders and seeks death 2 times, which has the higher rate? But the rural county’s small numbers is going to skew the total numbers. The fact is that urban areas dont have the resources (or the desire, generally speaking, Harris County Texas being an exception) to seek death enough times to make black victims equally represented. Any serious observer knows this. The one study that controlled for geographic disparity found that the race-victim effect disappeared (see Paternoster’s study in Maryland).

There is no ethical obligation to turn over addresses. None. And you know it. In any event, if you are routinely turning over addresses and someone gets hurt, there is blood on your hands. By the way, I am still wondering when you are going to defend your position about effective rep in a scenario where a plea deal is rejected. Most serious observers felt that your position was headed for a big big loss.

I don’t think that you open yourself up to bald racism charges when you point out demographic differences. Blacks commit murder in America at a higher rate than whites. Does it make one racist for pointing that out? No. Does it make one racist for pointing out that black victims of murder are more likely to be serious criminals than white victims? No. The facts are what they are.

First of all, I have re-read my original post on this thread and, although I think I am correct, it was a little flip and I wish I had taken a little more even tone. Sorry this response is so long, Gideon.

Regardless, what I come back to is this:

I don’t think there is a legal ethical obligation to unilaterally edit discovery before I provide it to my client for their review. I think to do so is questionable practice that aligns you with the State over your client. I would never seek out addresses of witneses simply to hand over to my clients. But if it’s in the discovery provided by the State that is in my file, my clients have access to it without restriction. SPO, try to put yourself in my shoes for the following conversation with my client charged with a serious offense, and for your purposes assume I believe he’s probably factually guilty:

D: I want to see my discovery. I want to see everything they got on me before I decide if I’m taking this plea or going to trial.

Me: Here it is.

D: Why is there stuff blacked out here?

Me: Those are addresses for witnesses.

D: Did the DA or the judge black that stuff out?

Me: No, I did.

D: Why?

Me: Because you aren’t entitled to it.

D: You mean you think I shouldn’t have them.

Me: Right, you don’t need to have them.

D: What do you think I’m going to do with them?

Me: I have no idea, but I’m not giving them to you. You don’t need those addresses to know if you should take the deal or not.

D: I want everything they got. You are trying to help them out because you think I’m guilty and I’m going do something because I’m just a criminal to you. Who’s side are you on here?

A good question under the circumstances.

I understand you think this is a very serious affront and amounts to me rolling the dice with people’s safety. That view is a slippery slope for a defense attorney. Frankly I try to convince the powers that be to roll the dice almost every day. When I try to get people released on bail, when I get charges dismissed, when I help my clients cut deals that put them back on the street I never know what their next move will be. Once I start doing my job based what I think my clients are going to do in the future, I won’t be doing my job very well. I would take no great pleasure in cases won by witness tampering. And where I practice there are prosecutorial methods to deal with such allegations that usually make things much worse for any client suspected of doing so. I routinely admonish clients not to engage in it. But in the end I have little control over what they do. I have to do my job. And my job does not involve going out of my way to protect the State and their witnesses if they don’t take steps to do so themselves.

Well, Long Term, there you have it. Lots of people die because people like you hand over addresses to witnesses, which they don’t need. I’d love to see you to tell that grieving mother in the article I linked that you didn’t think it was your job, despite the fact that it was you that handed over the information to a criminal (and let’s face it, the people you deal with on a regular basis are criminals).

You ask society to be moral with respect to your clients. You guys whine about “prosecutorial misconduct”, yet you routinely place completely innocent people at risk of retaliation for doing their civic duty. Words cannot express my contempt for you and each and every public defender who does this nonsense.

This is far different from simply arguing for bail (unless you lie about facts to the court) or moving to have charges dismissed. In those cases, a neutral arbiter is there etc. etc.

And my answer to the defendant would be

“Look, my job is to defend you, which I will do to the best of my ability, but witnesses to crimes get hurt, and if I hand out witness information to every defendant, I am putting innocent people at risk, and I am not willing to do that. At the end of the day, I have to live with myself.”

Okay, enough of this nonsense about “lots of people die”. Seriously, stop your irresponsible hyperbole.

Second, if you have so much contempt, why do you keep commenting? If the only reason you have to comment here is to express your contempt, then it is not welcome.

Third, if it is in the file it belongs to the client. Maybe in your area of law it is different, but in criminal law it is so.

Fourth, I think I understand what you’re saying about the data of the racial disparity, but I’ve read the entire study and it takes into account all the variables. It is comprehensive. If I could provide an electronic copy, I would. But I cannot.

So, I will say this to you one last time: If you wish to engage in a discussion here, feel free to do so, but remember it must be in a civil manner and if your only purpose is to continue to belittle those in this profession and to express your contempt, then I suggest you find another outlet.

It’s not nonsense. Lots of witnesses do wind up dead or hurt.

As for the file “belonging” to the client, that is no reason for you guys to facilitate attacks on innocent witnesses. Like I said, try explaining that to Mr Fields’ mother. You want people to think about your clients and the issues that defendants face in the justice system, then it behooves you guys to think about what average ordinary people would think about you guys handing over their personal info to dangerous criminals. I, for one, would be irate. And rightfully so.

Handing over this info could get someone killed. You know it, and I do too. And you defend it. You pillory prosecutors for “win at all costs” and other shenanigans. Well, guess what, when you guys do things like this, your credibility is shot.

As for the racial disparities in Connecticut, I didn’t see any controls for differences in geography. The point is that the issue has been looked jurisdiction by jurisdiction to come up with any meaningful info. The “study” is garbage. Anyone with an ounce of common sense knows this.

No one is facilitating anything. I’m extremely confident that if any attorney has even an inkling that his client is going to misuse the information then he will not turn it over.

What if the defendant is pro-se? He is entitled to copies of the reports - unredacted. In that case, would you say the prosecutor is responsible?

Finally, this study. Have you read it? No. How the hell can you dismiss anything that you haven’t read? Talk about bias…

I saw enough of the study. It’s fundamentally flawed in that it lumps independent decisionmakers together. You cannot do that. It’s not enough to show in the aggregate racial disparities. You have to show the individual decisionmakers’ bias created them, and the report simply does not do that.

By the way, you don’t have to eat an entire egg to know it’s rotten. Take a look at the guy’s surprise that sometimes prosecutors seek death for less heinous crime than where death is not sought. We needed a study for that? Where you have prosecutorial discretion and different decisionmakers, you will have those outcomes. Is this guy just a moron or does he have an agenda?

As for pro se defendants, the prosecutor should simply redact the addresses. It’s not Brady material. Let the pro se guy move for discovery. Ha ha ha ha.

In any event, with respect to the addresses, I think I’ve made my point. While some PDs may think that it’s not their job, I am sure that those with longer views understand that credibility from your side is important. If you guys want commonsense reforms to help the administration of justice, then you will have to have credibility, and the “not my job attitude” with the safety of law-abiding folks makes yours evaporate. And then you just cede the high ground to people like Nancy Grace. And then you get some pretty harsh results.

Your attitude with respect to home invaders was similar. If you cannot see that, as a class of criminals, people who repeatedly break into occupied dwellings are more dangerous than your ordinary burglar, then either you have ideological blinders on (because you seemed to think that because some home invaders were not dangerous, we would be engaging in some sort of collective punishment) or just dumb. And I don’t think you’re a dumb guy. Now, if I am a legislator, and my job is to best use scarce resources, and I have someone who rejects out of hand the idea that people who repeatedly break into homes with people then inside them are inherently dangerous, then I am simply going to say “True believer” and not listen. Instead, if I hear that we need to make sure that we are not being overbroad etc. and not inadvertently pick up people who break into summer homes etc., then I would listen. See what I mean?

Sex offender registries (which I agree need to be less than what they are–we really need to focus on some of the more dangerous sex offenders) are a lawful punishment.

Not to derail the entire conversation, but I must point out the error of the statement. SCOTUS ruled–twice–that registries are not punishment. They are (or were, at the time the court ruled) considered no different from a list of, say, folks who bought a fishing license. That’s one of the reasons the registry is bloated: retroactive application.

If I’m not mistaken, witnesses are free to change their location at any time (within a couple parameters) without needing to inform anyone of what hotel, relative’s house, whatever, they may be staying at. (In contrast, a person on the registry must keep potential murderers informed at all times. This has been an issue in Kansas, where sex offenders also happened to be targets of domestic violence and stalking.)

That the Supreme Court said it isn’t “punishment” for purposes of the law doesn’t mean that these registries aren’t punitive–they are.

As for witnesses being able to move, so what? Does that make putting them in danger less reprehensible?

That the Supreme Court said it isn’t “punishment” for purposes of the law doesn’t mean that these registries aren’t punitive–they are.

Which does, however, nullify your claim that the endangerment of registries is different because it is “lawful” punishment. It can only be “lawful” if it isn’t punishment, but if it is punishment, its current implementation is unlawful.

As for witnesses being able to move, so what? Does that make putting them in danger less reprehensible?

I don’t for a moment doubt that there are witnesses who are endangered by their participation in criminal cases. What puzzles me is your insistence that the primary responsibility of protecting witnesses lies with the advocate for the defendant.

Take the case of Jennifer Riviera, forex. (I think the case was out of Rhode Island.) She’d been promised police protection in exchange for testifying. She received repeated death threats after she was identified as a witness (by law enforcement, btw) and allegedly promised police protection, yet was shot to death. The court found the case heart-wrenching, but did not find any duty to protect under the notion of state created danger.

On a different note, it’s rather naive to think that–once provided with the name of a witness–the sole way to discover the address would be via one’s attorney.

Ilah, I used the term “punishment” not as a legal term. If it were, there would be ex post facto issues. The point is that they are punitive–just not “punishment” in the legal sense of the word. Obviously, they are lawful, since they have been upheld as such. I don’t see how my claim is nullified. The bottom line is that these people have committed a crime to get on that list. Witnesses and sex offenders are different, and anyone that thinks otherwise, is, quite frankly, either a true believer or plain stupid.

I never said that the sole way to discover the address was through the attorneys. But it sure makes it easier when you have the address already. In any event, the practice is difficult to justify, and it’s interesting how you guys frame it as a “not my job”. Ha. You guys are the ones providing the info to the client, but disclaim any responsibility. Cute.

Witnesses and sex offenders are different, and anyone that thinks otherwise, is, quite frankly, either a true believer or plain stupid.

(chuckle) Man, you’d be in a world of confusion if a sex offender were a witness!

In any event, the practice is difficult to justify, and it’s interesting how you guys frame it as a “not my job”.

If your primary concern is witness protection, your first stop should be the offices of law enforcement, prosecutors, and judges. You see, for all the “duty to protect the public” chitchat flowing from those fonts, they don’t mean “duty to protect” in–to borrow your phrase–’the legal sense.’ They have, and will continue to, point out case law has determined there is no such duty, and any effort to assign such duty in the wake of murder, assault, arson and the like will be met with arguments from the state denying any and all responsibility. The state places responsibility for the criminal act upon the shoulders of the criminal, and the responsibility for avoidance upon the shoulders of the victim. While some victims are able to successfully raise the issue under state-created danger, the maze of immunities and prongs leaves the overwhelming majority with nothing but tough luck.

So before you expend too much breath condemning the public defender for saying “It’s not my job,” you may wish to consider which agents of the state have most often been responsible for the dissemination of information concerning witnesses, and which agents have the real-life power to protect targeted witnesses.

As for your chuckle, the reality is that publishing sex offender’s addresses does create risks to the sex offenders. But that’s a risk imposed because the sex offender chose to commit a crime. A witness to a crime, doing his or her civic duty, is obviously different, and has a much stronger moral claim to not having his address disseminated to criminals.

Interesting. A PD provides the address of a witness to a dangerous criminal, and it’s the witness’ problem to stay safe. Maybe that’s the reality. But when you hand over a witness’ home address to a criminal, you are placing said witness in real danger. Saying that others should be doing their jobs better and saying that others have more power to protect witnesses is true, but irrelevant. The fact is that the PD should not endanger other people by his or her actions. This is a fairly simple moral proposition, and it is interesting, indeed, that you think it not your job. Fine. But then don’t come whining to the rest of us over our indifference to your clients.

I give my client’s All of THEIR discovery addresses and everything. I even call them and have an investigator go out and talk them, then Subpoena them and make them relive what they think they saw in court. Then I try to DESTROY their credibility, their recollection and make them start questioning what it is they think they saw. I cant believe that anyone is giving SPO this much of a soap box to stand on. “People getting killed?!?!” maybe on Law and Order.

Witness tampering is crime and if A DA withholds a witnesses address thats prosecutorial misconduct and will help me to get my client out just that much quicker. SPO is using a dramatic and emotional argument to blur the fact that Discovery belongs to the client and the client has a right to have a list with a summary of expected testimony and addresses.

Well, Malum, if one of those witnesses (or one of their children) gets hurt, then you have blood on your hands. You ask society to care about your clients and probably rail against what you see as unfair treatment by prosecutors. Your attitude towards the safety of people who did nothing to you (a) gives you zero credibility when you talk about justice and (b) justifies any dirty trick a prosecutor plays on you.

I’d love to see someone like you have the balls to go talk to Mrs. Fields (the mother of a witness murdered after defense attorneys gave personal info) and revel in how you risk the safety of innocent people. Better yet, why don’t you do it when there’s no one around to protect you.

You probably love hurting complaining witnesses the most. You know, a rape victim, a robbery victim etc. And you’d probably enjoy a win garnered with witness intimidation. Of course, if cops and prosecutors had as little concern for your safety or your family’s safety as you seem to have for other people’s safety, you’d probably scream bloody murder.

A hero of Malum’s:

http://www.nytimes.com/2007/12/21/nyregion/21witness.html?hp

SPO - It’s wildly offensive that you suggest that defense attorneys “revel in how [we] risk the safety of innocent people” and “probably love hurting complaining witnesses the most.” Nothing anyone has said in the comments above remotely supports or invites those inflammatory - and baseless - remarks. The problem is that you have taken what could have been an interesting dialogue about the issue and turned it into a forum for hurling insults and attacking the character of the participants. And you question OUR credibility??

It seems to me that your problem really lies with the entire system. I’m sure - in fact, I know - that you are not alone in your anger and resentment towards criminal defense attorneys. But the simple fact remains that sharing discovery with our clients IS a part of our job. It is something that we are obligated to do - and for good reasons, many of which have already been discussed.

It is not always pleasant or easy representing a criminal defendant, but I, for one, have chosen this line of work because I feel it is important for many reasons, not the least of which is defending an individual’s constitutional rights. You know, sometimes we’re fighting for innocent people, and sometimes we’re not. But our ethical obligations to the client don’t change based on whether our clients are innocent or not.

Our system simply cannot function if criminal defense attorneys are not acting in their clients’ best interests. Once we start behaving like their judge, jury and prosecutor and, for example, start making assumptions about the wisdom of sharing information with them, we cease to be their advocate, and the system ceases to function. There are many other players in the system who will and should act in the public and victim’s best interest. The defense attorney is NOT and CANNOT be one of those people. We are the ONLY ones representing the interests of the one being accused of the crime. That’s just how it is and it’s where the “it’s not my job” thing comes from.

However, this does NOT mean that we are robots without emotion and that we do not care about victims or witnesses or anyone else involved. I am so profoundly insulted that you would suggest that we would derive some kind of pleasure out of our client killing a witness in a case. Or that we enjoy any part of a complaining witness’s pain. Being able to do our job in many cases is emotionally draining and exceedingly complex, and it is utterly ignorant for you to criticize and condemn us for simply performing our function in the system.

First of all, I re-read my post, and it only refers to Malum–so apologies to others for any unclarity. Malum’s post shows that he relishes doing what he does to witnesses.

Second of all, I don’t hate criminal defense attorneys, I once helped represent a quintuple murderer, and I believe that defendants are entitled to zealous representation within the bounds of ethics rules.

Third of all, handing over addresses without question increases the risk to witnesses. That is an affirmative act by you, and it is painfully obvious that glee is taken about that by some here. Let’s not forget, we are talking about the risk of harm to innocent people. Let’s say you witnessed a murder, and the defendant was a gang-banger, would you want that guy knowing your home address? What if you had kids? The answer is that you wouldn’t. So what gives you the moral right to impose that risk on others? What if some witness gets retaliated against and decides that you need some retaliation? I hope you wouldn’t expect any sympathy from anyone. And what if the prosecutor decided to exercise prosecutorial discretion and not bring charges? Would you simply agree that’s part of our system?

Fourth, I don’t see where my credibility is shot. It is plainly ovbious that turning over addresses is a danger. And the statement that you have an ethical obligation to do it is bunk. Complete bunk.

Fifth, I think my point about credibility still stands. If you guys want people to take seriously your complaints about how defendants are treated, then you guys need to police this nonsense. Miranda, if I were a prosecuting attorney, and I knew you handed out witnesses’ addresses, I would move for protective orders routinely, and if you ever violated one, and someone got hurt, I’d charge you as an accomplice, and I’d have ZERO sympathy for you. None. Absent the violation of a protective order, I would tell every single witness that it is almost certain that you handed the defendant their addresses, and I would cooperate with you at the absolute minimum level required by the law. Such an approach is completely justified.

See Rule 1.4 of Rules of Professional Conduct; In the commentary (Connecticut Practice Book), the following paragraph appears:

Withholding Information. In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold information to serve the lawyer’s own interest or convenience of the interests or convenience of another person. Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule 3.4 (3) directs compliance with such rules or orders.

See also Connecticut Statewide Grievance Committee Decision, 04-0583, finding that the attorney “engaged in unethical conduct [for] fail[ing] to provide the Complainant with a copy of his complete file in violation of Rule 1.16(d) of the Rules of Professional Conduct.”

From CT Eth. Op. 95-1 (Conn. Bar. Assn. 1/6/95), quoting from D.C. Bar Committee on Legal Ethics, Opinion 168, 4/15/86:

While it may be impossible to predict with certainty that any particular refusal to deliver any specific document will in fact result in prejudice to the client, a lawyer’s obligation to his client requires that he err, if at all, on the side of serving the client’s interests. This obligation requires an attorney to deliver upon request, the entire contents of the client’s files…

And I am sure that these cases have to do with turning over witness addresses in a criminal case.

The blood is on your hands guys.

No, those are special cases that we are hiding from you.

Rule 1.16(d) deals with termination of representation. Not relevant. Can’t you guys do better?

Geezus, let it go already. We know where you stand.