clients
Guilty of being poor
Apr 5th
There is a myth that persists among criminal defendants that is well known to all of us: if you are poor, there’s a greater likelihood you’ll be found guilty of something. This myth – and a myth it is, because the rate of conviction is so damn high that you can’t honestly carve out any special class among the universe of defendants – is a steady source of amusement for the public servant.
“Man, if I had a real lawyer, I’d have gotten a dismissal already.”
Yeah, sure.
“I know how this works. If I had a private lawyer, he could fight for me more, but I can’t afford one so I’m stuck with you and this crappy deal.”
Whatever you say.
The irony is that the myth “you’re guilty if you’re poor” is just a few minor edits away from being close to the truth. The reality is that in the volume-high, fund-low world of indigent defense, most people are certainly guilty of one thing: being poor.
I’m not referring to the link between poverty and crime, for which there is much to be said – despite the tortured claim put forth last year that the declining economy coincided with a declining prison population and hence there was no link, an argument that any statistician worth the paper his degree was printed on would snarkily dismiss out of hand with the acronym SSS* – and indeed much has been said, but rather to the reality that unfolds every single day in the busiest courthouses across the country.
In response to my post yesterday on the “difficulty facing public defenders” [and if you want to read a more thoughtful post on the subject, check out Gamso's], a commenter points out that what I identified as a difficult wasn’t really exclusive to public defenders. The presumption of guilt applies to all defendants. But what is special to the indigent bar is that we often have to sit by and watch clients plead guilty, without having a clue whether they are actually guilty or not and without having the opportunity to determine that.
For almost every defendant except the guy doing life on the installment plan, the single biggest motivating factor is liberty. “When can I get out?” is the paramount question.
Padilla v. Kentucky: If it is clear, it is clearly your duty
Apr 1st
Yesterday, in Padilla v. Kentucky, the United States Supreme Court finally got around to affirming and acknowledging that which most of us in the field already knew: immigration consequences matter.
Writing for a 5-4 majority (7-2, if you count the concurrences), Justice Stevens opined that when the immigration consequences of a plea are clear, it is Constitutionally deficient for a defense attorney to neglect to inform the defendant of those consequences. Well, duh.
As SCOTUS itself recognized in INS v. St. Cyr, for the non-citizen defendant, the fact of deportation may be the single most important factor in deciding whether to plead guilty. We’ve known this forever.
Moreover, several states, including Connecticut, require courts, by statute, to inform defendants during the plea canvass that their plea might have immigration consequences. In cases where the immigration consequences are unclear, Justice Stevens writes, the defense attorney must meet at least that threshold.
Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward (as it is in many of the scenarios posited by JUSTICE ALITO), a criminal defense attorney need do no more than advise a non-citizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.
There may be some who throw their hands up in the air at yet another thing the defense attorney has to do or learn. In a lot of situations – and I’m looking at you, public defender offices – the sheer volume of business is such that it’s hard to keep up with changes in substantive criminal law, let alone familiarize oneself with the immigration consequences.
I don’t think that’s a legitimate complaint: for one, the defense attorney is already ethically and morally bound to advise the client of all matters that are relevant to the client’s decision to plead guilty. I’m sorry to say that our role as counsel is not limited to just the criminal arena. The consequences of a conviction extend far beyond the local penitentiary these days. Housing, immigration, child custody are all consequences that stem from the fact of a conviction and are all issues that are important to the client.
It helps to think about the kind of lawyer you want to be. Do you want to be a lawyer who does the bare minimum and relies on the judicial dam that stems the tide of ineffective assistance of counsel claims? Or do you want to feel good about yourself when you go to bed at night, knowing that you’ve accurately and honestly helped someone make a decision that will severely impact their life?
And how difficult is it, really? The big ones are no-brainers: robbery, murder, assault, rape, kidnapping. All will result in deportation. The drug offenses are where it’s difficult. But if that’s your stock-in-trade and you don’t familiarize yourself with the immigration consequences, you will lose business or gain a bad reputation. It’s that simple. Even simpler, call an immigration attorney. Every single reputable immigration attorney I know will gladly take a few minutes of his or her time to give you a rough approximation of the consequences, if any, of the plea and even tell you how you can structure the plea to avoid deportation (if possible).
The effort required to discover this pertinent information is minimal and you owe it to yourself and your client to make it.
Finally, just a reminder of the ethical responsibilities. The Rules of Professional Conduct states:
Rule 2.1 Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.
The commentary to and analysis of Rule 1.1 also provides handy guidance.
Depends on what “money” means
Dec 17th
As expected, my post yesterday on the money wedge between public defender and private attorneys has generated a response from Cousin Greenfield, who calls me on my bullshit of not noticing that there are, indeed, divergent interests to some extent between the private bar and public defenders. Scott, however, turns the table and gently points out that public defenders lack of concern for the actual eligibility of clients takes away from the ability of private lawyers to feed their families (which echos the comment left by “Bubba”).
The thing that disturbs private lawyers most, at least in New York City, is that defendants who can afford counsel are nonetheless given a free lawyer for the asking. There is no meaningful vetting process, and every defendant is handed a PD or 18b lawyer at arraignment by default.
Why buy the cow if you can get the milk for free?
Public defenders aren’t concerned about defendants who can afford a lawyer but elect to stick with the PD. I suspect they are flattered, though they should be angered. These defendants suck up their time, time which should rightfully belong to defendants for whom Gideon (the decision, not the blawger) was intended. They complain about being oppressively overworked, yet don’t turn anyone away, even if they drive up in a shiny Mercedes wearing 20 pounds of gold and diamonds around their neck.
To the private criminal defense lawyer, the defendant who can afford a lawyer is their domain. The PDs are taking away their next meal. Where’s the mutual love? Defend the poor and downtrodden all day long, but let the private lawyers make a living too. While PDs see themselves as just helping those in need, private lawyers see them as poaching on their turf.
While I suspect that Scott is engaging in hyperbole, I can see his point. However, I don’t necessarily agree with it. At least one hundred years ago (site very, very NSFW), I wrote about indigency standards and the authority of a court in CT to simply appoint a public defender even if the defendant has some resources available.
To be sure, there are extreme examples of defendants with liquid assets, who can (and routinely do) hire private counsel after they’ve become dissatisfied with their public defender. It’s happened to me and it irks me to no end. To that extent, I agree with Scott: don’t waste my time.
From the ass’s mouth
Dec 2nd
Or: Didn’t your mother ever teach you not to speak ill of the dead, David Martin? David Martin, of course, is the man who “represented” Cameron Todd Willingham, the possibly innocent man executed by Texas on the basis some rather dubious arson evidence.
Willingham is dead, there is a controversy over his innocence and David Martin was apparently missing the limelight. So he decided to give an interview to the press in which he said the following:
The veteran defense attorney represented Willingham at trial. He looked at all the evidence. And he has no doubt that his client deserved to die.
“I never think about him, but I do think about those year-old babies crawling around in an inferno with their flesh melting off their bodies,” Martin said. “I think that he was guilty, that he deserved death and that he got death.”
This is a man that, at least in name, represented Willingham. A lawyer, a member of the bar and a capital criminal defense attorney. I use the quotes around the word represented because:
Martin’s case was brief, with just two witnesses. The first was the family baby sitter, who testified there was an oil lamp in the hallway, suggesting it might have spilled and spread flammable liquid. The second was a jail inmate, who was going to dispute the testimony of a jailhouse snitch who claimed Willingham had confessed. But the judge forbid most of his testimony as hearsay.
But of course, one cannot keep a champion fool like Martin quiet. This is not the first time he’s opened his mouth about Willingham and his belief in Willingham’s guilt. A mere few months ago, when the arson story broke, he gave an interview on Anderson Cooper:
[youtube]http://www.youtube.com/watch?v=L5cFKpjRnXE[/youtube]
I must’ve missed it, but my good friends over at Defending People and Simple Justice didn’t (see Mark’s post for links to other posts on Martin’s stupidity).
As Scott summed it up:
While no one can make a criminal defense lawyer believe in the innocence of his client, or chose to argue it after his representation has ended, he can be taken to task for doing the unthinkable, the outrageous and the facially wrong. David Martin’s comments are a disgrace of the lowest order. And, for good measure, just as criminal defense lawyers aren’t expected to believe in the innocence of every client, they similarly aren’t endowed with the superhuman ability to know when a person who professes innocence is in fact guilty.
I may lack an explanation for what drove David Martin to condemn his own client publicly, particularly in the face of overwhelming evidence of innocence, but I have no doubt that his statements on Anderson Cooper 360 are some of the most despicable I’ve ever heard from the mouth of a lawyer. Never, but never, smear your own client.
I’m glad to say that no one I know would act like Martin did (although one has come close).
I’d probably run
Oct 18th
Over the last three months or so, I’ve twice had the experience of riding the elevator with a client. There’s nothing out of the ordinary about riding the elevator with the client, but these two particular times, the proverbial bell was tolling. Both times we were on our way to find out the verdict of a jury of my client’s peers.
Both times, I looked over and stared at the face of a man who had placed his faith in me and in the justice system. Some might call that foolish (I might be one of them) and some might call that rolling the dice. Both times, though, I couldn’t imagine what it felt like to be him.
As any regular readers left out there know, I consider myself able to empathize with the plight of our clients, to have some insight into their world and their though processes. But this…this was a foreign emotion to me. One that I could not duplicate in my own mind.
How, I asked myself, did they have the courage to step off that elevator and into that courtroom, knowing full well that they may never walk out again into those hallways and out those doors?
Maybe my experience with the system is a curse in this regard. I’d never, never (well okay, almost never) risk a jury trial. I’ve come to the conclusion that jury trials are a crapshoot. That you’re always taking an immense risk placing your fate in the hands of 6 (or 12) strangers, who might have their own agenda and their own skewed view of the evidence. That you’re placing your fate in the hands of your lawyer, who may – with the best of intentions – pick the wrong approach to convince your jury.
Everyone knows what the consequences are of going to trial and losing. It’s called the trial tax for a reason.
I’m more convinced than ever that I’d never take that risk. That I’d probably plead to something I didn’t do to spare myself the agony of the Russian roulette that is a jury trial.
I’m sure there are many more like me. Which means there are many, many more innocent people in jail than we currently estimate.
More than anything else, though, those two moments emphasized to me the awesome responsibility we have and the seriousness with which we have to execute our duties. We can get jaded after a while, but we all need to remember that simply by representing someone we are shouldering an awesome burden: the faith of another individual and the delicate fate of their freedom and liberty. This not only means that we have to zealously advocate for them, but to them as well.
I don’t think I’d have the gumption to step off that elevator to hear a jury’s verdict. I’d probably run.
Crazy? Jail’s the place for you
Aug 23rd
This post has been a long time in the making. Over the past few months, I’ve had to deal with clients – and have observed other lawyers dealing with their clients – who have severe mental health problems. And each one of us can tell you that there’s nothing more difficult – or more heartwrenching – than coming to an appropriate resolution of a criminal case involving a defendant with mental health problems.
Not only does one have the normal problems of communicating with a person who may be hearing voices, or who may believe that he is an FBI recruit who has to save the world while the Russians are tracking him with embedded micro-chips, but one also struggles with the failings of a system that has no room for clients like that.
While I usually decry the heartlessness of prosecutors and judges on this blog, I have to say my experiences in this area have been to the contrary. While they don’t get in the way, they do join the defeaning chorus that reminds us of the futility of our efforts.
Careful what you wish for
Jan 23rd
Someone needs to explain to me why this case ever made it to SCOTUS. Actually, I have several questions:
- What are you asking for, exactly?
- Is this a case of getting too greedy or too literal?
- Did anyone consider the ramifications of an unfavorable decision in this case? (Let me spell it out for you: it could spell complete evisceration of a well-established and solidly pro-defense line of cases starting with Santobello)
- How do you get selected to argue in front of SCOTUS and then produce a complete clunker [pdf] (and not just one counsel – both!)?
- Does anyone think either lawyer has any clue as to what is being asked of them?
I fear that Puckett might win the battle, but lose the war. That would be bad news for all of us.
We could learn a thing or two from pro-ses
Jan 6th
For example:
The birds today
Are singing loudly,
The day is fresh
With the sounds
Upon the wind
The crickets.
The blackbirds
The woodpeckers
Beauty in every
Spark of life
Just So their sounds
Are appreciated
Their sounds are beauty
The ants are silent
But always searching
The birds noise a song
and the fade of the automobile tires
Chirp. A shadow from
a passing monarch butterfly
Breathless in Colorado.
Overheard at the pd’s office
Jan 6th
Public defender 1 to public defender 2 about a client who believes God will help her obtain a verdict of not guilty:
PD1: Well, what do I do now?
PD2: Look at it this way. If she gets convicted, she can file a petition for writ of habeas corpus alleging ineffective assistance of divine counsel in violation of the Sixth Commandment.
You had to be there.
A little pd Christmas ditty
Dec 18th
Overheard in court and sent to me by a little canary.
For your listening pleasure, set to the tune of…well, you know.
THE 12 DAYS OF ARRAIGNMENTS
On the ____ day of Arraignments, my client came to me with:
12 FTAs
11 Prior Convictions
10 Years Suspended
9 Dumb Excuses
8 Failed Programs
7 Cases Pending
in 6 Jurisdictions
5 AKAs
4 VOPs
3 BCLs
2 DV cases
And the client needs to get a PTA!
Some of the phrases have been changed from the original because, well, the canary has a bad memory. Bad canary!
In honor of ditties, here’s a little ditty for you, because face it, the protagonists would be our clients today:
[youtube]http://www.youtube.com/watch?v=jcJz-x6idd8[/youtube]
Glossary after the jump:
Might OJ Simpson have a Sanders claim?
Dec 8th
how did I end up back here?
One interesting piece of information in this OJ Simpson brouhaha is the revelation that he may have rejected a plea offer for a sentence as low as 3 years. The first word came from a friend of The Juice and it was later confirmed by his lawyer.
Sanders, in the post title, refers to a CT Superior Court decision: Sanders v. Warden1. Obviously, OJ wouldn’t get the benefit of this particular case, because, as much as Mohegan Sun wants it to be, this is not Vegas. The principle Sanders stands for is borrowed from a 1996 Second Circuit decision: Boria v. Keane.
It’s the client, my good chap
Nov 23rd
One of the primary reasons I started blogging was to express my thoughts and feelings about the criminal justice system. But the more I blogged, the more I realized that what it was really about was learning and sharing: learning new things and sharing experiences. Learning how to be a better lawyer, really. For the most part, the blawgosphere has served that purpose and it has enriched me as a lawyer and as a person.
There are times, though, when the blawgosphere exposes its ugly side. Slowly but surely, the blawgoshpere is moving away from actual conversation and closer to pure marketing. Everything is about the blogger and the blogger’s business or promoting their business. It’s getting a little dirty. Take, for example, this: Accident Prone, a public defender blogger, wrote about a common experience a few weeks ago:
Dear Private Attorney,
I know you think you know more than I do. Hell, maybe you do. I know that you think dispensing legal advice without, oh I don’t know, “reading the file” or “knowing about what the evidence is” is a good idea.
In the future, if you’re not going to do either of those things, please do not tell my already deluded client that he “should be able to get” a misdemeanor disposition from a felony. Or else, take the damn case and get what he “should be able to get” for him. Oh wait, what? You can’t/won’t/don’t have a valid legal license to do so? Then shut the f&*$ up!
This was clearly a post about an experience the blogger had in real life, but still was instructive: Remember that it’s about the client and not about drumming up business. It’s not about making a name for yourself, but rather for doing something that’s in the best interests of the client. If you do a good job, you’ll get a good reputation and the business will follow and so on. Really, everyone should know this. I know I keep harping on it, but you’d be amazed how infrequently other lawyers actually act in this fashion. Take this response to Accident Prone’s post from a private attorney:
Dear Public Defender,
I am sorry that I can get a better deal for your client than you can. Maybe it is because I have been practicing law for about as long as you have been breathing. False confessions, eye-witness allegations and testilying cops don’t frighten me. I plea bargain, but I do so from a position of power, even when I am the “underdog”. I give your client a feeling of protection and ability.
Chances are I know, taught, mentored or helped elect the judge or prosecutor you are dealing with and s/he will take a chance on a client I represent because I bring a sense of reliability that you don’t enjoy. That is likely because your investment in our legal community is limited to telling your fellow lawyers what rubes we all are or rolling your eyes as we invite you to belong to our bar associations.
Oh don’t forget that while you are guaranteed a salary,I am not. Hence, you don’t work on every holiday or go in on weekends or even return calls… I do.
I give my clients my private cell number and my e-mail address. I am available to him or her 24/7. I am still in my office at 11pm on a pretty regular basis.
I did my time in Legal Aid. I appreciate the work that you do and I enjoyed it when I was doing it, but let’s face it, if I didn’t describe you, I described many PDs who get a lot of credit for dedication, but aren’t always as dedicated as they think. That is why their client is in my office begging me to take his case, and why I can’t. You can take it though, and you could win his undying loyalty and respect, but it’s not free, you have to earn it.
Warmly
Private Lawyer
Sigh.
This is what I mean. A large part of that comment is purely self-serving. It also belies a fundamental lack of understanding of what Accident Prone’s complaint was and what the greater, more deep-seated problem is that we as public defenders face. This is not a contest between public defenders and private attorneys, yet there is a consistent percentage of the private bar that engages in such divisive behavior.
The real problem is the willingness of some to put aside their professional responsibility and duty to the client to make a quick buck. The real problem is the maligning of the public defenders in order to do so. I know you have a business to run, private lawyer. I don’t begrudge you that. But when you start lying to clients or spreading misinformation that makes my job tougher, without taking responsibility for it, I will not sit silent. Just to make that extra $1500 (and I know it is a tough economy), you are willing to stick your nose into a file, give bad advice and then hold up your hands when asked to deliver. That doesn’t work, won’t work and shouldn’t work.
Look, I’ve said to clients on occassion: “why did you hire so and so?” or “I bet you won’t hire so and so again, will you?” But that’s not because I want him to be my client, but rather because I care about the client and want to see him get good representation and certain attorneys have certain reputations.
Our goal is the same and our clients are the same. We should be working together, side-by-side for the benefit of our clients. Your client today may very well be my client tomorrow. It doesn’t serve his interests for you to bad-mouth me now or promise him the moon.
It is our responsibility, both as members of the private bar and public defenders to quash this nonsense when we see it. I can’t tell you the number of times I’ve seen clients – mine and that of fellow public defenders – get enticed by the promises of the huckster. “Well, you can only get me the minimum on murder, he can get me manslaughter”. No, he can’t and I’ll tell you he can’t, but it’s your money and your life. If you want to do it, I can’t stop you, Mr. client. “Well, if I pay him $500, he can get me a program.” Right and so can I, because you’re eligible for a program. Not because he’s in bed with the judge. And this is the problem. Sometimes we’re fighting the fight on four different fronts: the judge, the State, the client and some unscrupulous members of the private bar.
We don’t need to be doing that. All of us in the profession should put our clothes on in the morning with the singular goal of doing something to help a client that particular day. If we don’t, the entire profession gets a bad name.
Scott, to whom I showed this exchange last night, offers his take from the perspective of the private bar. You’ll find some of the same notes being struck there, because he gets it. Let’s hope, after reading these posts, “private lawyer” gets it too.
[We tried to synchronize our posts, but lazy old me got behind. Sorry Scott.]
[Further: Forgive the disjointed thoughts in this post. I wrote and re-wrote it 5 times, so there are leftover fragments from previous iterations.]
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