Some days are agonizing
In this line of work, I don’t think there’s anything more heart wrenching that sitting across from a likely innocent client and having to tell him that there’s no way to prove that innocence and then watching him hold back tears and decide between two morbid choices: accepting the plea offer and spend the next 15 years locked up or go to trial and risk 60 years.
Sometimes I feel overwhelmed.
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about 1 year ago
That sucks. I’m sorry to hear about your day. I’ve never had client with that many years at stake. So far, I’ve had some looking at 20+. But I agree those cases can take the wind out of your sails for a bit. I can’t imagine how our clients feel in these situations.
about 1 year ago
Which is why I rejoice when I walk the horribly guilty.
Try giving your guy a poly. If he passes give it to the State. But the power of the poly lies not in the test but in the ability to get a read on your client about by their reactions to the prospect of the questions.
about 1 year ago
(A 2L currently in criminal law.)
Ok, so I’ll ask the completely naive questions: How is this possible? Why would you have to prove his innocence? I realize you were writing casually, but do you really feel like you have a burden of proof that you can’t meet?
And theoretically, the situation you’re describing couldn’t happen, could it? I’m guessing that there’s a lot of circumstantial evidence and context that would make a conviction likely?
about 1 year ago
Snacky – I’m not sure what the others think but here are my thoughts on innocent until proven guilty.
The ‘system’ only pays lip service to the idea. When a jury walks in and sees my client sitting next to me, they are probably thinking ‘I wonder what he did?’ Right then prseumption of innocence takes a hit. Then the court tells the jurors that my client is accused of touching a child or hitting an elderly person or involved in a gang assault and the presumption goes out the window. The defense then has to prove why the defendant did not do what he was accused of.
Another way to look at it is think of all of the people who have been freed from prisons and death rows around the country. At their trials, they were unable to prove their innocence. It wasn’t until a new technology came along to retest evidence that they were able to prove their innocence. And for some, like the guy in Texas who died in prison but was recently exonerated, the proof comes too late.
When we get cases that have all the halmarks of those faulty convictions, for example, a positive ID, but no DNA or other solid evidence to ‘prove’ it wasn’t our clients we know it is very unlikely we’re going to persuade a jury that our client didn’t do it.
I hope that helps a little. -D
about 1 year ago
I don’t have to prove his innocence, obviously. But I have to prevent the burden of proof from rising to a certain high level.
The point isn’t about burdens, but rather that there is nothing one can do in certain cases to disprove the state’s case.
As to your last question: this is what routinely happens in sex cases. One word against the other. If your client has anything going against him (prior record, etc.), then the odds are considerably against him. So it does happen. And happens enough to make us lose sleep at night.
about 1 year ago
Innocent clients are the worst. It’s such a helpless feeling to have to try to explain how royally screwed they are and that the criminal justice system really won’t get to the truth. For me, it’s a matter of having to call them in prison and tell them I lost the appeal and there is no avenue left. That is definitely the worst part of my job.
Sorry you are having to deal with that now.
about 1 year ago
I’m sorry you are dealing with this, Gid. My thoughts are with you as you fight this battle.
about 1 year ago
Battle over, next case here.
about 1 year ago
This is not going to make me popular here, but perhaps the defense bar is part of the problem. You guys get all excited about getting a guilty guy off, and that’s your job, and I’m guessing you’re pretty much willing to do whatever it takes to make that happen within the rules, or more likely, pushing the rules to the absolute breaking point. And then you wonder why prosecutors don’t trust you at all.
Rules that require you guys to go to the absolute mat for every defendant are the same rules that make prosecutors think you’re crying wolf.
Think about this guys–let’s say you know of a prosecutor who listens, really listens, and would be willing to take innocence protestations from you at face value. Every last one of you would take advantage of the prosecutor for the benefit of the guilty.
I get that it sucks to have a client get screwed (although it sucks worse for the guy), particularly an innocent one (and I don’t mean some guy who’s gotten away with a lot of crimes otherwise), but perhaps some of you ought to take a look in the mirror and think about how the way you guys do business makes prosecutors discount what you have to say, which can cost innocent people dearly.
about 1 year ago
Apparently, you believe all defense attorneys and only defense attorneys have ethical problems. It’s interesting that you absolve the police and the prosecutors of their role in sending the innocent to prison. What about DAs and police who withhold evidence? Or those that improperly influence witness to pick out the defendant that they think did it? Somehow a heart to heart with that individual will just believe me and my client and set my client free? I don’t think so.
Also, I think you underestimate prosecutors unwillingness to appear wrong and their drive to keep up their statistics. That’s why they will offer super low-ball offers when they know full well that they will dismiss the case if it is not accepted by the defendant.
Very few DAs ‘really listen’ as you put it.
Apparently, you think that someone with some criminal history is less innocent that someone who has aboslutely no criminal history. You are supposed to be punished for what YOU have done on a particular instance. It doesn’t matter if the defendant has committed other crimes in the past or no crimes. If he’s tried and convicted of a crime he did NOT do, then that is an injustice regardless of his unrelated criminal conduct. And do not forget, the real culprit is still out there and the REAL threat to society.
You should watch a movie called: “Murder on a Sunday Morning.”
about 1 year ago
I don’t think the attorney should be the finder of fact. The attorney should take his client at face value; otherwise, the client will be judged by his own attorney before all of the evidence has been heard.
about 1 year ago
I very much agree.
about 1 year ago
I think that it is usually true that an attorney should take what her or his client says at face value. But I also think part of an attorney’s job is to provide his or her honest opinion when a story/statement seems difficult or impossible to believe or to reconcile with other facts.
It’s not a service to your client to chase around a bs alibi defense when the evidence points to mere presence at the scene, for example. In that case, instead of just taking what the client says at face value and chasing around supposed alibi witnesses right away, one should confront the client right away, explain why it is important to do the correct investigation as quickly as possible, explain what points to their presence but not necessarily illegal conduct, and go from there.
about 1 year ago
I agree with you to the extent that I believe everyone in the profession should treat each other with respect and professionalism.
about 1 year ago
Awful touchy Dustin.
First of all, I did not say that defense attorneys were unethical. I said that the requirements of zealous advocacy (which you guys love) make it impossible to trust you. Which is why they don’t and which makes Cassandras out of all of you when you have an innocent client. For example, does anyone believe Lanny Davis’ arguments that Kevin Cooper is factually innocent?
I get it that there are prosecutors that play close to the line and those that cross it. But that’s not what we’re talking about, are we?
The bottom line is that the systemic zealous advocacy for guilty clients adversely impacts the innocent ones. I think you ought to be honest and acknowledge that.
With respect to criminal history, I agree that the other guilt point doesn’t make an innocent man a guilty one, nor does it make his conviction not an injustice, but there’s no requirement that I feel sorry for him. I don’t–not in the slightest.
As for Skeptic’s post, you’re right, that’s our system, but I think our system does, systemically, screw innocent people because the defense lawyer will do everything he can to get a guilty guy off, so there’s no reason to trust him when he cries that his client is innocent.
I think I raise an interesting point, and one that you guys would do well to ponder. And keep in mind I am not making value judgments here. Some of my posts do. Not this time.
about 1 year ago
It isn’t that simple SPO. I don’t know if the client is guilty or not.
The client may not know — the DNA folks have come up with numerous exonerations where the client falsely confessed — clients with mental illness, low education, and substance abuse problems that cause memory issues can all be prone to this.
The victim may not know — again, lots of DNA exonerations involving good-faith mis-ID. Victim and bystanders may have picked the wrong guy in the array, and police are still fighting hard against changing their procedures.
The forensics can be wrong — we’ll see what National Academy of Sciences says on Wednesday, but there are genuine problems with some forensics, especially if the expert expects the evidence to match a specific defendant.
So I may have an opinion, but it is just that. And so the ethics rules rightly require me to zealously represent the client regardless of that opinion.
Now there are some other factors, the ethics rules also won’t let me put on false testimony or evidence, so if the client insists on testifying, which is his or her right, and I’m convicined they are going to lie, I have to withdraw from the case for an unspecified ethical conflict (the court and prosecutor will guess why). The same rule would not let me call a witness, alibi, expert, or other, that I think is going to commit perjury.
There are some fine grey lines there — if the client pleads not guilty, and doesn’t testify, then there’s no perjury.
I’ve been there too, Gideon, and my sympathies. It really sucks to have to tell a client that you do believe him/her, but there either isn’t a viable issue in the appeal, or there is an issue, but it isn’t likely to win. Or worse, give them the bad news that the court affirmed on grounds that show they clearly ignored the appellant’s brief.
about 1 year ago
All I am saying is that there’s a reason no one believes you guys when you have an innocent man. I notice that none of you contested my view that if there was such a thing as a prosecutor who listened and trusted you that you guys would try to take advantage of said prosecutor on behalf of guys you know are dead bang guilty. I get that you have ethical duties etc., but you should understand that in the performance of those ethical duties you become Cassandras when you have a guy who didn’t do it.
And, of course, it’s a bit rich for you guys to whine about these innocent people screwed when most of you don’t give a shit about ripping apart some crime victim on the stand or divulging a witness’ address to dangerous criminals or the future crime victims of the “horribly guilty”.
I’m writing a pro bono habeas brief. We should win (and if I am saying that, that’s saying a lot). And the guy genuinely got less than what the law says he should have gotten. And I’ll be damned if I don’t do my level best to get the writ issued, and I have some f’in talent. But you know what–I get that I am helping a criminal, and I won’t lose sleep if we lose, and I’m not going to be jumping for joy if we win. This is my job. I should do it to the best of my ability. I get that helping criminals can have bad consequences. I’m hopeful that on the whole when criminals have good representation, the system as a whole is more accurate. You guys, with your burning desire to win and your utter lack of concern for the collateral damage of your actions, make it so no prosecutor in the world will trust you and also engenders that same zeal in prosecutors (if they don’t go balls to the wall, they can wind up letting the guilty off with predictable consequences). And that lack of trust hurts people sometimes–so why don’t you have the same attitude you have about that collateral damage, i.e., screw ‘em, this is how we roll.
In my career as a corp. lawyer, I’ve had to do some crappy things, like being the point person for creditor calls for a bankrupt entity. It’s heartbreaking to hear how someone’s business could be ruined because a bankrupt company isn’t paying their bills. I at least listened to them and had sympathy and explained the best I could about why we have restructuring laws etc. etc. I certainly didn’t exult about not having to pay some poor guy.
about 1 year ago
“I notice that none of you contested my view that if there was such a thing as a prosecutor who listened and trusted you that you guys would try to take advantage of said prosecutor on behalf of guys you know are dead bang guilty.”
You’ve created a straw man, that’s why no one is talking about it. As I said in my post, the whole area is uncertain — I’d be glad to go to a prosecutor with the facts that I think show innocence, so long as it doesn’t prejudice the case or betray attorney-client confidences to do so. I’m not going to go to a prosecutor with my unsupported personal opinion because he or she isn’t going to care any more than I care about his or her personal opinion that the client is guity. The facts are what’s important.
I don’t think anything we say is going to make any difference to you, but defense attorneys aren’t stupid or evil. We don’t cross-examine because we enjoy making things tough on a crime victim, we cross-examine because we think the victim is mistaken, or lying, or both. We talk about the state’s witnesses with our clients because they may know something about the witness — the client may need to know that the witness is the John Doe who lives on Elm Street, not the one who lives on Oak Street, to tell us that the witness is the victim’s brother-in-law and has hated our client since first-grade. Lots of cases involve intricate relationships between small comunities of folks and we need to know about those ties to figure out bias issues. We aren’t out to help clients intimidate witnesses and generally warn them not to do stupid things like that.
Of course we care about the collateral consequences, SPO, we live in the community too. We are fully aware of the consequences of our jobs as I presume you are of yours. We have family, friends, etc., who may become crime victims or witnesses in the future. That’s why we want the justice system to get it right.
about 1 year ago
“Defense attorneys aren’t stupid or evil”. Did I even say that? No. What I said (with an aside about the guy jumping for joy when a guilty guy gets off) was that the culture of going to the mat for clients (e.g., ripping witnesses to shreds, disclosing witnesses’ home addresses to violent criminals–yes, that’s been defended here, even where no possibility of gain for defendant) creates issues for your (few in number) innocent clients.
You can say that you never truly know all you want, but I am guessing that you have a pretty good idea when someone didn’t do it. And if the other side could trust you, that would hold benefits for some of the innocent guys. How could it not? But the other side cannot trust you because you’ll do anything (within the law as stretched to the breaking point) for all of your clients, guilty or innocent. And that fact, no matter how you slice it, hurts your innocent guys.
I don’t see why that’s so controversial.
about 1 year ago
Personally, the more I interact w/PD’s and the more I see opposing counsel slam them for upholding the very same Constitution, the more I want to be one.
So, SPO, thanks for a defining reason to do Defense work…much appreciated by my lowly 1L self.
Gideon, et al…rock on.
about 1 year ago
My loyalty is to my client. Period. Part of being a criminal defense attorney is standing up against authority and not caring about who does not like it. We fight the government, we oppose the government’s attorneys, we expose police officers as liars sometimes. Society is taught to trust the police and our government and to despise anyone accused of a crime. That’s why some people can’t fathom the fact that innocent people go locked up every single day. “But how can that be? Not in our system!”
Our clients are facing a uphill battle. My job is to be the one person who stands next to the defendant and to fight hard. Why, be the government is fighting hard against my client and the odds are in their favor.
So this is what you need to understand: I am very nice and respectful ADAs and law enforcement. However, I have a job to do and they are the opposition. It is more important for me to fight for my client then it is for me to be best buddies with the prosecution. The ADA is not facing jail time, time away from his/her children, loss of a job, possible deportation and all the other things associated with a conviction.
That isn’t to say I chase any alibi given to my client, but to suggest that I shouldn’t go to the mat for each and every client is to suggest that I should be an ineffective lawyer simply because you do no like the fact the my client has been accused of a crime. Sorry, that’s not how it works.
about 1 year ago
Passingthrough, I didn’t suggest that. What I am suggesting is that how you guys roll creates a culture where the truly innocent guy can get screwed. I haven’t suggested that you not go to the mat for every client, but going to the mat all the time has consequences.
If I were a prosecutor, I wouldn’t trust a defense attorney one iota. Not one. And if you think that doesn’t harm the relatively few innocent clients you have, you’re kidding yourself.
about 1 year ago
Ok, so SPO, if you were a prosecutor, what could any defense attorney do to get you to trust him/her? You have posted lots of comments saying why we can’t be trusted. But you haven’t offered any suggestions for what we can do to make you trust us without violating our ethical duties to all our clients.
Given the fact that you have said you wouldn’t trust any defense attorney one iota, I would hope you would agree with me that it’s a good thing you are not a prosecutor.
about 1 year ago
S, I think you’ve hit on what I am talking about. The answer is that I cannot. You guys have your ethical duties–it’s how you roll. But you cannot expect that other people are going to take anything you say at all at face value. And that reality inescapably means that the few innocent people you represent are harmed by how you roll. If there were a mechanism by which prosecutors and defense attorneys were in more of an inquisitorial system rather than an adversarial one, then likely there’d be opportunities for trust and your ability to convince prosecutors to take a deeper look or what have you. But that’s not how you roll.
I really don’t think there’s anything defense attorneys could do to get prosecutors to trust them. When you see defense attorneys who know full well that their client “did it”, yet argue to the jury that some other person could have done it, that shows an absolute willingness to lie. Maybe not what the bar rules would call a lie, but what everyone in the world would call a lie. Or when Lanny Davis actually tries to argue that Kevin Cooper is innocent. I mean, really. Why in the world would anyone in their right mind trust people like that? And to the extent that lack of trust harms your clients, guess what, it’s on you.
This is not a criticism. You rate what you skate, and your job is to protect your clients zealously. And let’s face it, not a lot of defense attorneys really give a flying you know what about witnesses torn to shreds or witnesses scared because some violent criminal knows where they or their family lives. But when the willingness to do these things and lie like rugs to juries (in the guise of offering alternative explanations) creates an utter lack of trust for anything you have to say with your adversaries and which utter lack of trust may hurt some of your innocent clients, you guys get all weepy. Interesting, to say the least.
Face it guys, if prosecutors trusted you more, in some cases, that would be outcome determinative with respect to some of your innocent clients. But how you roll precludes that trust. Therefore, how you roll hurts innocent people.
Now maybe that’s for the greater good etc. etc. Who knows? But how about some self-awareness? You guys extol our system, where a defense attorney is a criminal’s paladin, his hero, taking on the government, blah, blah, blah. There are consequences to that, and not all of them are good, and some of them hurt criminal defendants.
about 1 year ago
You admit that you have a pro-prosecution bent and it’s showing here. I think you’re being a little one-sided in some of your statements.
In my experience, there’s a lot more trust between prosecutors and defense attorneys than you assume. Of course there are prosecutors I don’t trust, but there are also lots of them that I do. (But I think the issue of whether prosecutors trust defense attorneys is not the issue identified by Gideon’s original post. I think a lot of prosecutors believe us when we tell them we believe our clients are innocent: they just don’t believe our clients.)
But the main thing I want to address right now is your belief that you just can never trust any defense attorney. You cited a specific example of a defense attorney committing what you call a lie in closing argument and use that as a justification for never believing any defense attorney ever.
So are you equally prepared to declare that you will never believe any prosecutor ever? Because I can cite you lots of examples of prosecutors trying to get convictions against Guy A even though they’ve withheld lots of information from the defense that makes Guy B look pretty darn guilty. In KC a man recently had his conviction for abandonning a body overturned. The man had claimed he’d contacted his attorney to inform the authorities. The prosecutor got up in open court and proclaimed there was no evidence at all to support that even though the prosecutor had the phone records which proved the calls had taken place.
So the point of all of that is, if you’re going to categorically distrust all defense attorneys, don’t you also have to categorically distrust all prosecutors? And if you’re not going to distrust all prosecutors, maybe you might want to rethink your complete and utter lack of trust for any and all defense attorneys.
about 1 year ago
It really does seem like I’ve struck a nerve. With respect to prosecutors and trust, I don’t trust them any more or less than anyone else. There are bad prosecutors, and I 100% agree that the system needs to be more sensitive to dealing with those issues. I cannot imagine that Nifong is the only one. Ethically speaking, though, prosecutors have a duty to justice. That some fall short is not surprising.
My point about defense attorneys is different. I didn’t say that I wouldn’t trust you in real life, just not in the context of your representation of criminals. A defense attorney will consider it a matter of ethics to say to a jury “X could have happened”, when he knows damned well that X could not have happened because he knows his client did it. A prosecutor should be disbarred for doing that. Defense attorneys in here, with nary a whisper of dissent, have talked in terms of a duty to pass along a witness’ home address to a dangerous criminal. My point, of course, is not that you guys are bad guys or anything like that–hell, I am trying to get 5 years shaved off a criminal’s sentence in a federal habeas petition. My point is that the defense bar’s zealous representation of criminals creates problems for those few clients who actually didn’t do it.
I really don’t see why that’s all that controversial. I’ll admit, it’s a bit of a poke in the eye, but you guys will get over it.
about 1 year ago
Truthfully, SPO, the original post by Gideon was meant to express his thoughts re: being a public defender and the uphill battle it brings. Poking another PD in the eye is akin to pissing in the community pool. What I see as a 1L, its not good form to go around pissing on each other’s turf nor is it good form to tear apart another attorney in a public setting. All its doing is making one look like an ass in front of his peers.
No, I’m not a card-carrying bar member…YET. However, I do not believe it good form of you to come on to HIS blog and shred he and other PD’s to ribbons in his sandbox.
Zealous Representation…is this not part of the ethical standard of being an attorney? Forgive my newness but is this not is something that is required of attorneys? What oath did/will every attorney swear to when standing before the judge when sworn in as a member of their respective state?
I may not agree with my client, what he/she has done, but it is my duty to represent them zealously and with every fiber of my legal being as an attorney. I will swear to uphold the Constitution of the U.S. and my state and represent my client zealously. Sure, I’ll step on toes…get over it. I’m not representing my client to make friends, I’m doing it to defend them zealously while adhering to ethical principles.
Yeah, call me protective but if you want to “poke” the PD’s in the eye for zealously representing their clients do it on your own blog. Don’t piss in Gideon’s sandbox on principle and get pious about your comments.
about 1 year ago
Lighten up, no reins girl. The point of my post was to talk about how the ethics of the defense bar contribute to the problem of innocent defendants getting convicted because of the lack of trust engendered by tactics used by the defense bar that are ethical under current understanding. Certainly, that’s a provocative statement, and the “poke in the eye” comment was more to that point, rather than stating that I am pissing in someone’s sandbox.
Really, is the proposition that the ethical rules calling for defense attorneys to zealously represent their clients and the predictable response thereto could sometimes harm the clients that are innocent really all that debatable? I mean, look at what you wrote. You talk about representing them “with every fiber of my legal being.” That means that if you represented a murderer who told you he did it, you would argue to the jury that some other guy could have done it. That’s a lie in just about every other context known to man. And not only would you do that, you’d state that ethics required it if it would help your guy get off. Please remember, I am not taking issue with that–what I am doing is saying that such tactics engender responses from those who see them every day, and those responses, i.e., a lack of trust, a desire to kick your proverbial tail in court etc. can be harmful to the (rare) innocent guy you represent. How hard is that concept? Your response utterly fails to deal with that. Instead, you proudly proclaim how you’ll “step on toes”.
You know what makes a good lawyer–knowing what’s relevant. Your response is completely beside the point I am making. (Note, you cannot make the same criticism of my original post. I wasn’t disputing what Gid wrote.)
Truly pissing on Gid would be to laugh about it. I’m not doing that or anything close to it. I’ll admit, my posts are sharp. But hey, aren’t PDs supposed to have thick skin. After all, they have to deal with often dumb as post judges taken from the ranks of prosecutors. Are sharp posts from a corporate attorney really all that offensive?