a public defender

If you're new here, you may want to subscribe to my RSS feed. Thanks for visiting!

As I sat in court today, a young man came up for sentencing. I hate watching these sentencings, because they’re sad affairs all around. The young man, I say young man because he couldn’t have been more than 20, was pleading guilty to some serious offense. I don’t know what it is that he is alleged to have done, but there he was.

As the judge went through the canvass, taking special care to make sure he understood the parameters of the plea bargain (it was a right to argue), it struck me that this young fellow was going to see nothing but the inside of a prison for the next 15 years. 15 years just gone, finished, written in stone. I can’t imagine being in his position (nor do I ever want to be), knowing that one act you committed, one moment of weakness, has resulted in your being banished out of sight and out of mind for the next 15 years. The world will move on by and you’ll be left there, stuck in a vacuum. The things you will not see, the air that you will not breathe,  the freedom that you have squandered away. Is there regret? Is there pain? Is there sadness? It broke my heart.

Sure enough, as he walked away, a tear rolled down his cheek.

It’s just sad.

One of the first things I learned (among several hundred others) in the criminal clinic at the law school was seeking a bill of particulars. The State files a short-form information, you ask for the long-form version. You make the State commit to its theory of the case and lay out, specifically, the exact nature of the charges. This seems only fair and serves to validate Due Process. The defendant must have notice of the charges against him and the statutes he is alleged to have violated (I’m not saying you do this in every case - you have to use your judgment, but that’s for another day).

Translated into real life, though, this almost never happens the way you want it to. Scott complains here of the government not wanting to provide particulars because it didn’t want to limit the basis for the charges. More than the moving target of the conduct, it is the moving target of time that I find to be impossible to defend against.

Consider the sexual assault case. The “victim” is sexually abused and a few months or even a year later reports it to the authorities. Or in child sex assault cases, several years later. The prosecutor files the information, alleging a violation of the child sex statutes. The particulars?

From 2002-2005, this defendant sexually assaulted this “victim”. Defend that. It’s impossible. The only way to win a case like that is to undermine the credibility of the “victim”. You cannot present an alibi defense, simply because you cannot provide an alibi for 3 straight years. Try it; it’s just not possible. If you say I was out of town on Monday, the State says it could have been Tuesday. Could have, would have, should have. Yet this is okay.

The state does not have to prove, and often does not even put on evidence of, when it is that this crime is said to have been committed. This allows them to paint with a very broad brush, increasing the pressure on a defendant to take a plea offer.

I don’t know what can be done about this other than to take a stand every time the state alleges something like this. Ask for a bill of particulars; argue that it’s impossible to defend against; that you don’t have notice. Because you don’t, really.

Update: Scott clarifies (in the comments here and in this post) his definition of “rats”. He says he’s referring to defendant X who is guilty of crime 1, who, in exchange for a light prison sentence, tells the government about defendant Y who committed crime 2.

If only it were that simple. Sure that scenario arises, but how do you know that before you represent him? What about the scenario where defendant X and defendant Y might be guilty of crime 1. Defendant X wants to plead guilty because he’s got a long record, evidence is murky and there’s a chance that he might be convicted. At that point, he wants a lesser sentence, so he offers to testify against defendant Y. Is he a snitch? If so, why would you not represent him? By not representing him, are you not doing a disservice to the client that hired you?

Or is the dividing line that your client must be willing to testify against someone else committing only a different crime? I guess I still don’t understand (or perhaps I don’t believe that this the case).

Original post: The story that never dies: Snitching. Should you or shouldn’t you? That is the question that has been bandied about the “practical blawgosphere” for months now and has returned with a vengeance. This morning, after Norm’s latest post, Scott got all atwitter.

SO. Instead of rehashing everything said in the last day (and last few months), I’ll ask this of those that will not represent snitches: What do you mean by snitching? Is it purely co-operation with State in the prosecution of another? Does it include a third-party defense (as in testifying “I didn’t do it, my buddy did”) and what is the difference between the two?

I’ll give you my answer: There is none. Testifying on the stand that you didn’t commit a crime, but you know who did and that person is X, is akin to testifying at the trial of X that X committed the crime.

So you do non-snitchers draw that distinction? If not, why not?

Image from this site.

Mark Bennett touches upon another pet peeve of mine: the elusive client file. Mark writes,

About a month ago a man hired me to replace his previous lawyer on his felony. I drew up a motion to substitute counsel, go the client’s signature on it, and sent it to the former lawyer along with a letter requesting that he sign the motion and return it to me along with the client’s entire file “so that I [could] continue my trial preparation from where [he] left off.”

He signed the motion and returned it to me within four days, but did not send me his file. I called and talked to him, and he promised to send me the file, but still did not do so. I called him again, and he promised it on a specific day. That day has come and gone, trial is coming up quickly, and I still have no way of knowing what work, if any, the previous lawyer did (operating under the assumption that the answer is “none,” I’m doing everything that should have been done by him six months ago). I have asked the previous lawyer several more times for the file and had no further response.

Seriously. What’s up with that? I’ve run across the same problem. I request predecessor counsel’s file and it never arrives. At least Mark got to speak to the other attorney. There are times when I get no response. Nothing. Letters are written, calls are made, motions are threatened and yet nothing.

Equally bad are those that claim the files are “lost” in a “flood” or “stolen from storage”. At least those give me a chuckle.

Hello. Criminal defense bar. It isn’t about you. It is about the client. You know, the guy charged with a crime? Now I’m not saying the whole bar is guilty of this. For sure, there are plenty of attorneys that promptly turn over the file, readily admit their mistakes and are eager to assist in the defense of the client (or in habeas corpus claims). But there is a certain percentage that views any effort by a former client to secure his liberty an affront to their lawyering ability. I’d rather it never come to this. If we all did our jobs perfectly the first time, these situations would never arise. We are all human, however, and being human presupposes that we will make errors. Our clients should not suffer because of that.

HT: CDW

[This post is one in a series of ongoing posts I have conceitedly titled "psa". To read the rest of the posts, click on the "psa" category link below.]