psa
Where were you on April 17, 1966?
Jul 22nd
Ask anyone that question and they’ll look at you like you’re crazy (and you might get some interesting responses from those that weren’t born yet). But try it. If you were alive then, think back. Think back to that April day or any other April day that year or the next year or in fact, any day between 1966 and 1972 and tell me where you were specifically between the general periods of any time of day or night.
You can’t. It’s impossible. 44 years have passed since 1966 and 38 since 1972. Yet, for “G.R.H.” of Louisiana it is this lack of photographic memory and the inability to have the foresight to note and document his whereabouts on all those days in those 6 years decades ago that has landed him in jail for the rest of his life.
In 2006, GRH [opinion here] was accused of sexually assaulting a minor, as you may have guessed, between 1966 and 1972. The complainant, 44 at the time of the accusations, had an alleged clear memory of the assaults perpetrated by the defendant, some 40 years ago.
There was no corroboration, no contemporaneous disclosure, no other instances of sexual abuse by this defendant, nothing. Just the say-so of a 44 year old woman, almost an entire lifetime after it allegedly occurred.1
Imagine, as Justice Douglas did, dissenting in United States v. Marion, that the 44 year delay occurred after GRH was arrested and not before. Certainly, none would argue that his right to a speedy trial was not violated. And the concerns with such a delay are certainly mitigated after the institution of a criminal prosecution: you know there is an action pending, so you hire an investigator, document your memories, speak to witnesses and firm up their recollections. When someone is not prosecuted and doesn’t sense one coming (having done nothing wrong), there is no reason why anyone would keep track of whatever alibis they might have had or whatever witnesses may have had to offer.
Justice Douglas, quoting Baron Alderson in 1844:
Deterrent? Not Actually
Jul 14th
all your DNA are belong to us
The story of the role of DNA in the criminal justice system is quite interesting. Heralded as the ultimate in crime solving, DNA has slowly infiltrated the collective consciousness of the entire nation and infected our lawyers, judges and jurors. It’s a double-edged sword, to be sure: DNA can accurately (or maybe not) identify an individual who leaves behind some trace materials at or in a crime scene, thereby implicating or exculpating a suspect. Fueled by DNA based shows like CSI, jurors became more demanding and mistakenly over reliant on the science, producing the “CSI effect”, DNA, on the other hand, has drawbacks that defense lawyers try to highlight – which I’m not sure have sunk in yet – like the fact that you it can’t tell you when it was deposited. DNA is most famous for high-profile exonerations of people already convicted of crimes and serving lengthy prison sentences.
But DNA is much more than that. As the science grows, the uses and implications of the genetic markers grows by leaps and bounds (see here and for the future, see here).
Which is why DNA, and the collection of DNA, is so attractive to law enforcement agencies. Unfortunately, as is often the case, the evolution of science and technology and the desired application of these new uses conflicts to some degree with the core protections of the Constitution.
Just yesterday, a 3 judge panel of the 9th Circuit heard an appeal in a lawsuit filed by the ACLU challenging the legality of California’s DNA-collection-upon-arrest law. That’s essentially all there is to the law: collect the DNA of everyone ever arrested. (Connecticut tried to pass a similar bill two years ago and it was ultimately rejected.) Under some circumstances, the DNA may never be deleted from their database:
All that’s left to do is mitigate
Jul 2nd
In its pure, unadulterated, un-judicially-activated form, the law – criminal and constitutional – is a beautiful thing. Reflecting on the context in which the Constitution was written, and the way in which its application was envisioned is a source of inspiration.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
These are the rights of individuals – all individuals and checks against the power of the large governmental entities. The Constitution drew a line and on the site that was protected were placed the flesh and blood individuals, the citizenry and on the side that was being warned and whose authority was being severely limited was the abstract, nameless, faceless Government.
What a beautiful concept: we are individuals first and as individuals, we have rights that will not be subordinate to those of an ever-changing abstract concept.
The concept is dying a quick and painful death. It took only 200 odd years for the pendulum to have shifted completely in the opposite direction. By attrition, or force of sensationalism, or crowdsourced fear, the line drawn by the Constitution has turned around and is now facing those very individuals it sought to protect. The idea of individual liberties is so foreign to most, that comes as a surprise to many that the founders fought and fought hard for them.
These protections and rights exist merely as a thorn in the side of the righteous who seek to punish the evil. US vs. criminals. Speeding this disaster is the learned hand of those who are in charge of interpreting and enforcing the august protections enumerated and implied by the Great Document.
Jurisprudence, over the years, has taken an increasingly narrow approach to individuals’ rights, especially those charged and convicted of criminal offenses. The scope of acceptable intrusion by the Government has increased dramatically over the years and the zone of protection surrounding each individual and his possessions has correspondingly narrowed.
Cops want to use collective knowledge to deem that someone carrying two cell phones is a drug dealer and thus about to embark on a baby-killing spree? Allowed. Cops want to use lies and trickery to trap individuals into confessing to things they may or may not have done? Allowed. Prosecutors make impermissible remarks to juries and comment on a defendant’s exercise of his rights? Frowned upon, but the guy was guilty as sin anyway, so it doesn’t matter.
I fear that if one were to embark on the task of writing a book that enumerated the remaining fundamental protections, it may be just long enough to fill Twitter’s 140 character requirement. The Twitstitution.
Really, what 4th amendment rights does one have anymore? Police have to get a warrant? Well, not always. And even in cases where they really should have, it’s mostly okay. What if the prosecutor circumvents the probable cause requirement and adds charges later that aren’t supported by the evidence? Too bad, prove it at trial.
The role of the defense lawyer has gone from Constitutional law expert to mitigation specialist. Cases are won and lost on the facts, not the law. The law is dead to us. A lifeless corpse that taunts us and obstructs us in our efforts to keep the Govermental power in check. There is no longer any confidence backing up an assertion that an act by the police is “clearly illegal”. Frankly, there is no such thing anymore. Courts will find a way to condone whatever improper action we complain about.
“But he’s only 16, judge”, “he didn’t really threaten the use of a gun”, “he’s only doing this because he has a massive drug problem”.
Go to any court and sit in on any pre-trial negotiation and you’ll hear most, if not all defense lawyers use variations of the above. Mitigation specialists.
That’s the only thing left to us: harkening back to the very individuality that the Constitution sought to protect. Each person is an individual, but instead of talking in terms of protection, we now speak of punishment. Each individual is different and must be punished differently.
Guilt upon arrest is but a foregone conclusion. All that remains to be determined is the term. We don’t practice law anymore; there is nothing noble left. We mitigate.
The law is dead and slowly, it’s killing us all too.
Life without possibility of redemption
Jun 17th
I sat in a prison cell yesterday. And not your regular bullpen where they cram in 4 people who’re waiting to go to court. The real deal. Where our clients sleep at night (and often during the day). That of the 60 square foot variety.
There was a bed – a small bed – that was the length of the room. At the foot of the bed a metal toilet, with no cover. Just beyond that the heavy metal door, with a slit for a window. The door was maybe 3 feet wide, if that. At the head of the bed, if you were laying on your right side, you’d be about half a foot away from an ugly metal desk with holes that pretended to be drawers. This could not have been more than a foot long. The bed was flush with one wall. The desk with the opposite.
The bed looked hard, cold and dirty. And that’s it. This particular cell happened to have a window at the head of the bed. A window looking out onto nothing. Any future inhabitant of this particular cell would have it good. It was a single. Across the narrow passageway from this cell was another, identical in every respect except two: it was a double cell and there was no window. (Here’s a post I wrote a while ago about a different take on prisons in a foreign country.)
I didn’t have the courage to ask my escort to have them close the cell door for a minute, locking me in. It was nauseating and claustrophobic enough as it is. Maybe I was having a panic attack, or maybe the air in there was dead, like the spirits of the men that inhabit these cells, but I thought I was going to faint.
I willed myself to stand there, though, for a minute. To look around at the bare walls, the bare desk, the dirty toilet and imagine someone “living” there.
I even briefly closed my eyes and tried to picture myself there, day in and day out, for months, which turned into years, which turned into decades.
That bus is not for your client
Jun 8th
The internet has changed everything. Every fool with no money has a blog, every newspaper website caters to the lowest common denominator and every twit can Tweet for free. A percentage of these are former and current clients, both gruntled and dis.
Back in the old days, when you walked 20 miles to work, uphill, in blizzards, with no shoes, the only medium for clients to express their displeasure was filing a grievance with the state bar. Now, clients are able to air their grievances in a more public forum, with no restrictions that their complaints be made in good faith or sworn to.
And since you are what the internet says you are, how far can (or should) one go in response, asks Mike C:
What if a former client writes: “My lawyer was terrible. He never returned my calls or e-mails. I had a million-dollar case, and she blew it!”
Some prospective clients might read that blog entry, and thus never call the lawyer. Current clients might get nervous. Other lawyers might decline to refer a case to the bad lawyer.
Under the current Rules of Professional Conduct, it would certainly be unethical for the lawyer to write: “John Smith called me 5 times each day. He asked the same questions over and over again. After evaluating his case through discovery, we realized his case was marginal. We told him to settle the case for $25,000 – nuisance value. He refused. The trial court dismissed the case on summary judgment. Now he’s angry. By the way, you can read the case filings here, here, and here to decide for yourself whether we blew a huge case.”
Does that Rule make sense? A lawyer can lose business. Online reputation matters – not for a lawyer’s ego – but for his business. The law offers trademark protection. A brand matters. A lawyer is only as good as her name. Shouldn’t a lawyer be able to breach some aspects of the attorney-client privilege in order to protect her name?
First off, this really is nothing new, at least for those of us in the high-volume criminal defense business. I’ve had clients tell me they didn’t want me to represent them and wanted me to, in the same week, based on what their then-cellmates told them about me. You are as good as your current client’s former cellmate says you are.
Second, the differences between revealing confidences to defend against a disciplinary proceeding and responding to a blog post or newspaper comment are quite obvious. The grievance proceeding requires you to defend against the accusations, for failing to do so affects your livelihood.
But what of Mike’s point of the reputation of the lawyer in this age where more and more people are relying on the internet to secure representation? I have the wherewithal to explore any concerns I might have about a prospective lawyer with real people who know that lawyer and that lawyer’s work, but might a potential client? Why shouldn’t a lawyer have the ability to respond, albeit in a limited fashion to that Festivus tradition?
Scott’s take is similarly multi-faceted. He, too, recognizes the need to permit the attorney to have the ability to respond in some fashion, but cautions us that it is constrained in many ways by our continuing obligation to our clients:
[In response to Mike's hypothetical] I’m not entirely clear that’s accurate. Waiver of privilege is an all or nothing proposition. Once a client discloses confidential communications to others, it constitutes a waiver. It’s the client’s to waive, and there’s nothing to prevent her from doing so. It may be stupid and foolhardy, and the client may not realize the significance of disclosure and waiver, but it’s her right to let the world know what happened within the sanctity of the attorney/client relationship. Once waived, however, the privilege is extinguished. Like pregnancy, it’s not just a little waived. It’s waived. End of privilege.
Thus, while there may be no ethical or legal impediment to the use of privileged communications to fend off an attack, and while waiver means waiver, we nonetheless have a duty to disclose no more than is necessary to respond, and a duty to do no harm to the client in the process. While the best defense may be a good offense under other circumstances, we’re constrained to use the least harmful defense possible.
Clearly, the limits placed on our ability to lash back at those who might lash out at us puts lawyers at something of a disadvantage in a street fight, and certainly an attack on the internet can bear all the indicia of a street fight.
I don’t know much about the grievance process and the extent of confidential communications and privileged information that one can disclose in response to a grievance, but there is another area of the law in which confidences are routinely disclosed and that’s the post-conviction setting.
The blind leading the blind?
Jun 7th
We are counselors, which is a term that is broader than attorney or lawyer. Counseling implies so much more than merely representing someone in court in a criminal or civil matter. It is our job to counsel, to advise. We are not cheerleaders and we are not enablers. I often tell clients that they may not like what they hear from me, but that I will not lie to them or blow smoke up their ass, because it is my responsibility to give them all the information so that they make the best decision for them.
Flowing from that duty – and particularly important in criminal cases – is the ability to accurately assess the strengths and weaknesses of the State’s case against the client and analyzing the risks and benefits of going to trial. Everything we do leads up to that. Some others have written (Bennett I can remember for sure, but I can’t find the post) that their focus from the first court date is preparing for trial. It is through that preparation for an eventual trial that we as counselors can fully understand the intricacies of the matter. Investigate fully and discover that there exist no defenses? Your advice to the client reflects that. Realize that their witnesses are shaky and the evidence questionable but the offer is good enough to hedge against any “wild card” eventuality? The advice varies accordingly.
But a new paper [pdf] suggests that perhaps we’re all a little full of ourselves and overestimate the strength of our case.
Lawyers’ litigation forecasts play an integral role in the justice system. In the course of litigation, lawyers constantly make strategic decisions and/or advise their clients on the basis of their perceptions and predictions of case outcomes. The study investigated the realism in predictions by a sample of attorneys (n = 481) across the United States who specified a minimum goal to achieve in a case set for trial. They estimated their chances of meeting this goal by providing a confidence estimate. After the cases were resolved, case outcomes were compared with the predictions. Overall, lawyers were overconfident in their predictions, and calibration did not increase with years of legal experience. Female lawyers were slightly better calibrated than their male counterparts and showed evidence of less overconfidence. In an attempt to reduce overconfidence, some lawyers were asked to generate reasons why they might not achieve their stated goals. This manipulation did not improve calibration.
There’s no need for me to get into the paper in detail. You can read it for yourself; it isn’t very long. Striking is the fact that there wasn’t much of a difference between civil lawyers and criminal lawyers. Also notable is that attorneys were overconfident regardless of their experience. This sample tended to overestimate their chances of success at the same rate.
There is a cautionary tale here and something to be learned. No matter our desire to test the latest theory or try a new creative challenge or approach to the “type” of case we have before us, we must remember one thing: client’s cases are not grounds for experimentation. In our field, if we are wrong, someone goes to jail – and often for a very long time.
The client is, in a sense, blind. They rely on us to counsel them, to lay out the alternatives, the pitfalls and how best to navigate them. We are useless if we are blinded by overconfidence.
It is incumbent upon us to offer educated advice and only offer that when we are ready. If there’s one thing I’ve learned that I can deign to share with the rest of the world, it is that there is no such thing as a sure fire win in criminal law. If you don’t think you can lose, you will.
When relaying an offer, or advising a client to reject one, I ask myself: “would I do what I am recommending the client do?” Because if I can’t follow my own advice, I have no business suggesting it to someone else.
Of course, the client is free to do as he pleases. It’s his liberty on the line, after all.
If you’re not ready, neither is your client
Jun 3rd
War stories are a great way of passing time. It’s a slow day in the office and you end up in a long conversation with a colleague who’s been there and seen that. While mostly entertaining, the stories are also useful for one other thing: they’re a training tool. A veritable what’s what of what not to do.
I won’t bother you with this particular story, but there’s something to share, something that seems so obvious yet is often neglected by lawyers either because they don’t give a damn or don’t have the damn time.
If you’re not ready to plead, neither is your client.
Simple, isn’t it? Yet in the high-volume courts across the country, offers are routinely made and accepted or rejected on initial court dates or before investigation can be started or before you have the time to learn your client’s name and tell him from a hole in the wall.
If you wouldn’t know enough to take the offer, your client doesn’t either.
It’s difficult to do, resisting the tide that builds up, demanding swift disposition. It gets embarrassing, asking for continuance after continuance because the investigation isn’t complete. The caseload keeps piling up, the numbers look astronomical and ugly. I get it. There just isn’t enough time.
But this is non-negotiable, folks. Would you listen to a lawyer who said: “take this offer. I’m sure it’s a good one, but I can’t tell you why because I don’t know enough”? Obviously not. Yet we ask our clients to place their trust in us, to rely on our judgment and our opinion. The least we can do is take the time to make sure that we are in a position to recommend acceptance or rejection of that offer.
I’ve said it on occasion: “Sorry, judge. I need more time. I’m not ready to convey this offer to my client.” If I haven’t been dilatory in my handling of the case, what’s the judge going to say? After all, no one likes a habeas.
More than that, no one likes a client who’s forced into doing something because his lawyer didn’t take the time to make sure it was the right thing to do.
So the next time you’re being pushed into conveying an offer to a client or have a client who’s being rushed into accepting or rejecting, ask yourself: do you want to become a war story of the instructional kind?
Twice in jeopardy, 40 years apart
May 17th
Back in 2007, when the Commonwealth of Pennsylvania announced its intent to prosecute William Barnes for the death of officer Walter Barclay, eyebrows were raised. Barnes, you see, had already been tried for the 1966 shooting of Barclay and had been found guilty of attempted murder. Why was he not charged with murder at the first trial? Because Barclay wasn’t dead yet.
He died in 2007, more than 40 years after the shooting. The Commonwealth, already having exacted 26 years from Barnes, now 74, for the attempted murder, now seeks to exact some more for the eventual death of Ofc. Barclay.
Barnes’ second trial for the act of shooting Barclay began today in Philadelphia. The Commonwealth will attempt to prove that the gunshot wound suffered by Barclay in ’66 – which left him wheelchair bound – caused the urinary tract infection in 2006 that ultimately killed him.
The defense will seek to show the jury that the Commonwealth cannot prove the causal link, relying in part on the fact that Barclay, despite being confined to a wheelchair:
was able to drive a specialized car, walk with braces, earn a college degree, marry and divorce three times and perform sexually, had been in three car accidents and had fallen out of his motorized wheel chair twice during the 41 years that he lived after being shot
Mark Bennett, in a comment to Scott’s post above, asked in 2007:
I must be missing something, because those articles don’t even discuss this question: How does a conviction for attempted murder not jeopardy-bar a prosecution for murder when the victim dies?
Tonya Craft teaches us all
May 11th
Tonya Craft, a former kindergarten teacher, charged with 22 counts of various sexual offenses involving 3 minor girls, was acquitted today. You may or may not have heard of her. I wrote a post recently about the trial and some of the outrageous antics engaged in by the prosecutors.
She was represented by Demosthenes Lorandos, who apparently has made a habit of successfully defending child sex cases across the country, and who hilariously said at the post-verdict press conference: “I do not lose”.
The media has been all over this trial, bringing it much needed attention. At first, the attention focused on the misbehavior of the prosecutors [see this for some very questionable comments during closing] and later the complete lack of qualification and training of the so-called “child sex experts”.
Twitter was set ablaze today as the jury was deliberating and the tweets of joy were abundant when the verdict was announced. Parties have been planned, interviews being given on the news and Ms. Craft will now fight to regain custody of her children.
All’s well that ends well. But this is not a happy post, nor is it a merely celebratory one. While Ms. Craft has the opportunity to return to her life, there are lessons for all of us. A fellow defense lawyer asked on Twitter: “Who is #tonyacraft and why [is she] any different from all of our other human tragedies?”
She is not. There are hundreds of Tonya Crafts out there in the criminal justice system, every single day, pleading to charges to avoid lengthy sentences or attempting to fight the false allegations and losing.
Any criminal defense lawyer (like yours truly) saw a stream of familiarity in the continuing coverage by news reporters of the direct and cross-examinations of the witnesses. The dissection of the forensic interviews by the defense experts was a veritable checklist of the problems associated with such after-the-fact divining: repeated questions, leading questions, suggestive questions. Pressuring children to answer a certain way; the worst form of confirmation bias. The prosecutors attempting to cast the defendant in general terms as a bad person, a person of loose moral character, thus equating foibles in their character with child molestation.
This. Happens. Every. Day.
A witchhunt by men who molest the law
Apr 29th
[Update: She's been acquitted.] Raise your hand if you’ve never heard of Tonya Craft. I hadn’t either, until I stumbled across this post at change.org. Tonya Craft is the latest lightning rod in that modern day witch-hunt: the sex offender.
But, from all accounts, this isn’t a normal case. This is a shining example of the lengths people will go to, in order to brand someone a villain. The word sham is inadequate to describe the sheer rape of the law that is currently underway in Northwest Georgia at Craft’s trial.
There’s little doubt that a guilty verdict will fail on appeal. Yet Arnt and his fellow prosecutor Len Gregor seem intent on achieving one anyway, no matter the cost. They’ve badgered witnesses with questions about Craft’s exercise and lawn-mowing habits, of all things. They’ve asked whether Craft is a narcissist, and if Craft ever passed out in a girlfriend’s bed after a night of drinking. These so-called “sordid revelations” that the kind that only a puritan (or an unhinged prosecutor) would connect to evidence of child molestation.
The case has gotten weirder and weirder. One defense witness, who let Craft watch her children every day for almost two years without incident, testified that one of Craft’s accusers — who is also a child actress — was “worldly for her age.” “Does that mean she’s a slut?” asked Gregor. When the witness uncomfortably denied the charge, Gregor wondered whether the child might be a “pre-slut.”
While change.org has two posts on the subject, much of the coverage is being done by this man (and this newspaper). The transgressions of the prosecutors in this case are numerous: from claiming that they didn’t have to obey the law, to employing the worst “experts”, to seeking to introduce dubious “prior bad acts”. I could really go on, but that wouldn’t do the story any justice. Instead, follow the yellow brick road from the ridiculous:
Craft’s trial has also seen a parade of so-called forensics experts act as effective cheerleaders for the prosecution. One expert who made an appearance, Holly Nave Kittle of the Children’s Advocacy Center, was openly hostile to questions about her lack of credentials and was unfamiliar with any relevant child abuse literature. Neither did she help her credibility as a witness after she “liked” a public Facebook post by Arnt, in which he wondered “if Tonya Craft’s Defense [sic] lawyers are really insane of [sic] just trying to jack up her defense bill?” (Both Arnt and Kittle’s conduct likely violate Georgia’s ethical rules.)
Another prosecution “expert” involved, Suzie Thorne, lacks a college degree, and her testimony seems highly suspect. When Thorne interviewed one of the children involved during a videotaped session, she asked the girl a whopping 16 times whether “anything else happened.” Each time, the child said no. However, Thorne testified that after she shut off the camera, the child left the room and then returned — suddenly remembering that yes, Craft had sexually abused her.
Fair enough. But then why didn’t Thorne record this statement, or press the child for more information on camera?
to the “what the fuck are you talking about?”:
“Do you know anything about a time that Ms. Craft came to the door of her home dressed only in a towel to meet a first-time date?” “No, I do not,” said the witness.
Mr. Gregor asked, “Do you know any narcissists?” “No, I do not.”
“Would a good person molest a child?” “No.” “Would a good person insert a finger or thumb in a vagina or rectum?” “No.”
As Noah Arenstein at Change puts it: the prosecutors were becoming increasingly unhinged. At least until the media showed up. But that’s not the worst of it. The man who seems to have defiled the purity and sanctity of the law the most is the judge presiding over the trial: Judge Brian House. Starting with declining (without explanation) to recuse himself from the trial, despite having represented Craft’s ex-husband in his divorce from her, to permitting completely irrelevant testimony about the defendant’s alleged affairs with adults, to not permitting the defense to present any character evidence of the defendant, after permitting irrelevant character-assassination testimony from the prosecution.
We all are aware that allegations of child sexual abuse inflame the passions of most people. But when a woman is so horribly being railroaded in a trial, where the singular aim seems to be to obtain a conviction in the face of damning evidence suggesting the contrary, where all independent observes agree that even if a conviction is obtained, it is sure to be reversed on appeal, do we know that we’ve crossed the line from hysteria into madness.
Prosecutors so abusing their power and a judge sanctioning the farce is a damning indictment of the lengths we will go to to demonize those that may be innocent so long as a child is involved. Whether Tonya Craft is guilty or not is irrelevant. That the trial is being permitted to be conducted in such an egregious manner casts a dark pall over all of us that hold the criminal justice system here in such high regard.
While this is the first I’ve read about Tonya Craft, this won’t be the last. I hope it’s the same for you.
[You can follow coverage of the trial by reporters on Twitter and use the #TonyaCraft hashtag.]
How hard is too hard?
Apr 25th
In response to my previous post on lawyer misadvice, a longtime PD and friend of the blog asks: when does counseling end and coercion begin? How hard can you push the client to make a certain decision before it crosses the line? To be sure, it is an important question and a difficult one.
The choices that have to be made about all the “big stuff” – whether to take an offer, whether to testify, whether to waive a jury trial – are the client’s domain. We get to unilaterally handle the “other stuff” – what witnesses to call, what questions to ask, what tact to take.
The reality, however, is that most clients will do what their lawyers tell them to. Clients want this and lawyers recognize this: “Ultimately, you have to decide whether to take this deal or not, but…”
This is an awesome power in our hands – which is why I argue that we must exercise it with the greatest care and in the most informed manner possible – that can easily corrupt us and blur the lines between giving advice and making decisions.
There’s a reason that we wield this power: we are the ones trained in the ways of the system, we have the experience and most importantly, the client can never seem to get out of his own way.
So how hard do we push to convince the client to do A when he seems set on doing B, which is detrimental to him?
Clearly, the outer limits of the spectrum are set: one should not take a hands-off approach and merely lay out the alternatives for the client and one cannot make unilateral decisions on the client’s behalf, either by lying or obfuscating or keeping the client in the dark.
It’s the vast expanse in between that’s tricky. When does forceful and repeated advocacy cross the line into impermissible arm-twisting? In true lawyerspeak, I think the answer depends.
It depends on the client himself, the event that you’re counseling the client about and the level of confidence you have in the conclusion you’ve reached.
Take, for example, the decision to testify. It is indisputably the client’s. Yet, most lawyers will tell you that unless the client is compelling, it is usually a bad idea. Clients, on the other hand, will usually have very strong feelings about whether they want to testify. I’ve yet to encounter one who is ambivalent. They either are adamant that they have to take the stand and present their “side” of things, or are experienced enough to know that, in their case, it would be a terrible idea.
If their conclusion is the same as yours, great. If it isn’t, can you do anything to get the client to change his/her mind? Apprising them of the obvious downsides to testifying is a start: their record, lack of any concrete testimony, demeanor, etc. But what if the client is oblivious to these problems or chooses to ignore them? Do you persist? Do you try a different tact?
I don’t know the answer to that question. I believe that if I am convinced it would be a terrible idea for the client to testify, I would state it in no uncertain terms. I would probably have another lawyer in my office talk to the client to provide a second opinion. I may even do a mock direct/cross of the client to demonstrate the pitfalls. Is that pushing too hard? I don’t know. I don’t think so, but others may disagree.
If, after all of that, the client still persists, well, the only thing you can do is damage control.
Getting back to the original question in this post: how hard is too hard? Put another way, how do you know when to stop?
The answer, I think, is this: when you’re convinced that the client fully understands everything that you understand. Only when you are confident that you have explained all the things that led to you to the opposite conclusion, can you let the client make the “wrong” decision.
Again this depends on the client. For some, it may take one meeting. For others, it may take 5. But this is the only way I can put into words the elusive and shifting requirement of effective representation.
You may have a different view. Tell me about it in the comments.
Effective misadvice is ineffective
Apr 23rd
[Or: Leave your ego in law school]
When Ahmed Kenyatta Ebron was told by his lawyer that he should reject the State’s offer and instead plead guilty without an agreement because “he couldn’t do much worse or words to that effect”, he did what all of us usually hope our clients do: take our advice.
At this open plea, armed with the client’s record and an unfavorable pre-sentence investigation report, the judge imposed a sentence of 11 years to serve, 5 more than the State’s offer of 6.
Mr. Ebron, relying on counsel’s advice, is serving 5 more years than he should be. For now, at least. His conviction has been reversed, based on ineffective assistance of counsel, and that reversal has survived the Appellate Court (I’m not optimistic about its chances at the Supreme Court).
The events leading up to Mr. Ebron’s conviction, the habeas itself and the aftermath raise several points.
First, it is easy to forget that at the end of the day, we are in a service industry. As criminal defense lawyers, our job description is limited to the service of another. We are protecting the rights of others, we are helping others make important decisions about their lives and we are, ultimately, representatives of other people.
That this is easy to forget should come as no surprise. Lawyers have famously large egos. But there is a danger in letting the sense of self overwhelm the duty and responsibility that we have.
It is that duty to the client that compels us to treat each case with the attention that we would give to it were we the defendant. There is no greater sin that can be committed by the defense lawyer than misadvising the client.
Clients rely on us to show them the way, to spell out the alternatives and to recommend one over the other, based on our knowledge, skill and experience, keeping their best interests in mind.
It is imperative that we fully inform ourselves of the facts and circumstances of the client’s case and then, and only then, recommend a final course of action.
I am not suggesting that we must force a client to take our advice; the client remains free to make stupid decisions. But the advice that we give clients must be sound. There are some that take the view that our job is to present the alternatives to the client and then accept whatever decision the client makes. I am not of that view. I believe – and certainly I may take some flak for this – that it is our responsibility to do our best to convince the client to choose the course of action that is in his/her best interests, despite the client’s seeming disapproval of that path.
This, however, can only be done if the advice we give is informed. We can only stand behind the advice we give if we are convinced that it is the best alternative and that decision can only be made with a full understanding of all the circumstances and an awareness of the pitfalls of that and every other course of action. If someone else, years down the road, decides that the advice was unreasonable, so be it. No one gets hurt by that and it only helps the client.
Ebron’s lawyer didn’t do that (and to his credit, took responsibility for it). The standard for effective assistance of counsel is woefully low. To scrape by and meet Constitutional scrutiny, a lawyer needn’t do much. But if you’re aiming for the standard, then you’re not really fulfilling your duty. If you truly believe it is sufficient to perform at a minimum level, then there are other areas of law that might be better suited for you. Stop meddling with the liberties and freedoms of fellow men and women.
…
Ineffective assistance of counsel is a sort of “dirty” phrase in the criminal defense world. It is viewed by many as a personal attack and is met with scorn, anger and derision directed toward those who practice in the post-conviction arena. That this view is prevalent among the bar is alarming. It belies a fundamental misunderstanding of the duties and responsibilities of the defense lawyer in the criminal justice system.
IAC claims are not a taint on your reputation nor is it an indictment of your abilities. It is a recognition of the simple fact that we are all working within a juggernaut of a system that from time to time overwhelms even the best of us.
At the end of the day, it is you and I who go home to our comfortable beds. You and I have the ability to walk outside in the free world and to buy what we choose and talk to whom we want, whenever we want. To place our petty egos and some twisted sense of self-worth before the complaints of the convicted client, who has nothing but a badly beaten and bruised writ to use to seek his release from the oppressive conditions of confinement in our penal institutions is pettiness of the ugliest kind.
The local listserve erupted with comments after the release of the Ebron decision: there were voices from both sides – those that praised the decision and those that lamented the additional burdens it seemingly placed on the defense lawyer (based, it seems to me, on a misreading of the case and the responsibilities it underlines).
Why does IAC evoke such polarized reactions among us? Are we that sensitive? Or is it because we view ourselves as separate and distinct from our clients? Do we believe that the players in the criminal justice system are the State, the judge, the defendant and the defense lawyer? If so, that is a terribly misbegotten view.
This may be getting repetitive, but it cannot be said enough that in order to truly serve our clients we must view ourselves as nothing but an extension of the individual client. We must be the client, at every moment that we represent them. We – criminal defense lawyers – are not parties to a criminal case. The client is. We are his representative. We must, at all times, remember that and act like it.
I will not lie to help a client, but I will not add my name to the list of those that violate his Constitutional rights.
Enough already
Apr 11th
I can’t read the news anymore, nor can I watch it. Perhaps this is why I exclusively read blogs. News is depressing these days and local news more so. The headlines are practically the same every week: “2 shot in New Haven”, “Man found dead in Hartford”, “Summer is around the corner; violence is spiking”.
There was a time when I’d read the stories with some interest and make a mental note of the coverage. This could, after all, be my next case.
But not anymore. Not today, at least.
I’m tired. I’m tired of the violence. I’m tired of the lives needlessly lost. I’m tired of the damage to the community and the individuals. I’m tired of watching yet another man take someone else’s life and throw his own away. I’m tired of yet another directionless teen who got sucked into the “culture”, yet another mope who knows of no other way but crime. I’m tired of the grandstanding, the pontification, the holier-than-thou attitude. I’m tired of society getting outraged at the consequences, but doing nothing to treat the cause.
Crime will never stop. As long as I love my job, I guess that’s a good thing. There’ll always be something to do, someone to represent, some novel legal issue to research into the ground.
Sometimes I just wish it didn’t have to come with the attendant realities of pain, loss and fleeting promises of lives since extinguished.
Besides, I have too much work already. Give this guy a break, will ya? Stop shooting and killing each other.
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.
The presumption of guilt
Apr 4th
Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Rerum Gestarum, L. XVIII, c. 1.
Coffin v. United States. The presumption of innocence, a bedrock principle of criminal justice systems the world over for generations, is really not that ambiguous or in doubt. The presumption has been traced by some to Deuteronomy and there is evidence that it was embodied in the laws of Athens and Sparta. “Better than 10 guilty persons escape than that one innocent suffer“, says Blackstone [see here for a summary of the history of the presumption].
It’s a catchy phrase: “innocent until proven guilty”. It nicely ties in the other core principles: the burden of proof is on the State; the defendant has a Constitutional right not to testify; each and every element must be proven beyond a reasonable doubt. I’ve often employed Emperor Julian’s response, reproduced above, in answering the cocktail party question.
It’s all a lie. A big, bold-faced, wool over your eyes lie.
The presumption of innocence is dead, at least in practice. The real presumption, if you must, is that of guilt. Despite the Constitutional and historical directives to the contrary, the defendant “enjoys” a presumption of guilt from the moment of the institution of criminal proceedings.
From the absurdly low standard of probable cause needed to arrest a citizen, to the pitifully slanted pre-trial proceedings, to the trial itself, the presumption weighs heavily against all those who have been charged with a crime.
22tweets, a creation of Lance Godard, asked those who were featured in last week’s Blawg Review one question on twitter. Mine was: “What would you say is the most difficult aspect of being a public defender?”*
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