Murderer’s Privilege (An Attempt at Mostly Fiction)

The heavy steel door latched shut with the tiniest of clicks just before the jail guard walked away. My seat was round and about as large as a personal pizza. My left buttock tingled and then drifted off to sleep.  Across from me sat my client, wrists chained to his sides, feet chained to the floor: standard procedure when visiting a client in the jail’s maximum security wing.

“So I’ve been talking to some of the other guys in here…”

Oh no. My client had been discussing legal strategy in his homicide case with his fellow inmates, several of whom lacked the legal skill to avoid picking up their own homicide cases.

“…and I don’t think I have received enough training on how not to be a killer.”

My client lifted two fingers far enough from the chains on his waist to slide his manila envelope across the table. I skimmed each clipping and set it on the table between us. Inside the envelope,, I found…

…one newspaper clipping about a man in Staten Island who died begging for his life while his killer choked him to death. The killer told the dead man to stop selling drugs on the corner, but the deceased did not stop quickly enough for the killer’s liking. The grand jury decided that the district attorney did not have enough evidence to charge him with anything.

…another newspaper clipping, this one about a man in South Carolina who shot his victim in the back several times as the victim ran away. Strangely, the killer bound his victim post-mortem. The killer’s companion walked up to the body as the killer dropped another weapon on the ground to make it look like self-defense. Both the killer and his buddy wore identically-colored clothing, and the group to which both men belonged had a fearsome reputation for intimidating and brutalizing their community.

…one last newspaper clipping. A man in the midwest fled a gunman on foot. The gunman caught his prey and took him down. The gunman fired his pistol at the deceased as he labored for breath on the ground. Before dying, the victim yelled at the gunman for what he had done. “You fucking ran, shut the fuck up” sneered the gunman’s companion. Another of the gunman’s buddies mocked the victim for his inability to breathe as he lay dying. The shooter later claimed that he had intended to use one of his less lethal weapons and shot the victim by mistake; he stands accused of negligent homicide, and not murder.

…and finally, a computer print-out of a 100-page report, authored by the United States Department of Justice. The DOJ had penned this report in response to another high-profile killing in Missouri. The final section, entitled “Necessary Changes,” had been dogeared by my client. His handwritten notes filled the margins on either side.

I see where he’s going with this. “So if I’m hearing you, you want me to argue that, like the police officers in these news clippings, you simply have not had adequate training on how not to stab your brother-in-law in the chest while arguing on Christmas Eve morning.”

That guy in New York begged for his life on camera. And they say that the cop was right to fear for his life? Why can’t I say the same thing? My brother-in-law said ‘I’m sorry’ to me right before I stuck him. But maybe I was still afraid of him? Was that completely fucking nuts for me to still be afraid of him? The DOJ says I would probably benefit from more training on ‘proper use of force.’ And shit. Most of these guys are never charged with anything. Why do they get to charge me?”

“So how about this: I make a pitch for you to voluntarily wear a body camera on your person for the rest of your life in lieu of a prison sentence. You want me to offer that?”

I don’t know. Should I?”

“Do you think wearing a body camera would help you value human life a little bit more?”

It couldn’t hurt.

“Well, it better. They’re finally charging cops for this in South Carolina, thanks to the fact that most people carry a high-powered camera in their pockets all the time. But maybe with time, your fear of getting caught hurting people will turn into finding genuine reasons to not want to hurt people.”

“Yeah, it couldn’t hurt.”

Barely missing a beat, my client added:

“You know what else I should get? A union representative to protect me from people’s complaints.”

“Well, you already have a representative, and I’m a member of a union. Is that close enough?”

“They also should have set up a citizen’s review board to screen people’s complaints about me.”

“You mean  a jury trial? Because you can have one of those.”

“No, not a trial. The thing before trial where all the complaints get dismissed.”

“You mean a grand jury? They indict everyone unless you are a cop.”

“It’s too bad I’m not a cop, or I wouldn’t be here right now.”

Unfortunately, my client was probably right.

-Norm

Cry Havoc II: Cry Harder

In Part I of this tale, the County of Santa Asphalt entrusted me to defend a man who robbed a store of its beer at knife-point. After a series of clumsy, ham-fisted questions by the judge and prosecuting attorney, all 18 of my potential jurors had taken the hint that “yes, I can be fair” was the “right” answer. I knew full well that my client had no chance;  my only hope for saving my client from this jury was by making it more likely that they would turn on each other. So now it is my turn to question this 18-pack:

“Mr. DeGuerre, you may begin,” the judge intoned.

I stood and walked to the front of the jury box. This particular judge was known for letting the attorneys take as much time as they wanted (within reason) to spare himself the trouble of asking detailed questions. The real limiting factor was the attention span of the upstanding citizens before me whose regular lives were being interrupted.

Unfortunately, I started with almost no useful information about them. I had so little time to find it.

I looked at the file folder that held my notes. Every district attorney and public defender learns to keep their jury selection notes in the same manner. We start with a blank file folder and arrange 18 post-it notes inside of it in a 3×6 array. Each post-it represents one seat; the top two rows are for the 12 seats in the  jury box and the bottom row is for the six who will replace jurors in the box as they are excused. On each post-it, I write notes about the person currently occupying that seat so I don’t unnecessarily repeat the same questions as the DA. One-by-one, the six seated in the front will replace those in the back 12 as they are dismissed.

Here goes nothing…….

 

When I walked toward the jury box to begin my questioning, I carried this folder with me. I glanced at it one last time before opening my mouth, and wondered for a split-second why I had brought it at all for all of the good it did me.

I clapped my folder closed and looked up at the 18 pairs of eyes, all of them wondering why real court was so much duller than court on TV, why none of the lawyers were even remotely attractive, and what on Earth I was possibly going to say to defend my client.

What on Earth was I going to say?

I then heard a whisper inside my head, a whisper replete with learned over-enunciation. John Adams’ ghost had returned, and reminded me that there was one sure way to lose a case through poor jury selection:

“The most frightful jury is a herd of sheep lead by a wolf.”

Jurors can be divided into two basic types: leaders and followers. Followers will outnumber the leaders. Many of the leaders will harbor biases against my client or my defense; I cannot hope to remove them all. My best option is to ensure that one or two bad leaders are not left with a flock of followers. When in doubt, followers will side with authority–or whomever is the most vocal–and convict my client.

John Adams’ ghost then warned:

“Don’t allow bad jurors to poison the well. Don’t allow good jurors to hang themselves.”

Every so often, a juror will land in the jury box who might single-handedly turn the tide in favor of your client. Perhaps they believe in the wholly Constitutional doctrine of jury nullification. Perhaps they take issue with the state prosecuting “victimless crimes” (these jurors are easy to spot, given their love of wearing sunglasses indoors). Perhaps they have heard or experienced too many colorful stories of police harassment. Unfortunately for my client, these jurors disqualify themselves through their pathological honesty; the judge will ask them if they can be fair, and they will answer honestly that they cannot give the state or its agents a fair shake.

In contrast, the retired police officer, the concerned mother who worries that acquitting your client will endanger her children, and the victim of a crime committed by a guy who looks alot like my client, will all assure themselves and the court that they can nevertheless be fair and impartial jurors in my client’s case. These magic words will keep them in the jury pool until I dismiss them myself.

No matter which group a juror falls into, he or she will talk for as long as I let them. I only need to hear a handful of words before I sort these jurors into one of the two categories. The favorable jurors will blurt out their inability to be fair if given enough opportunity, and the biased jurors will spout endless unfounded prejudice into the jury pool in the same amount of time. For the sake of everyone’s patience, I need to identify who goes in which box as soon as possible. If I tarry, the few good jurors will disqualify themselves. In that same amount of time, the bad jurors will spew their sewage into the rest of my jury pool.

And then, the long con:

“Delay the inevitable; sew discord.”

A jury cannot render a verdict of guilty unless all 12 agree. But to save my client, I need not convince all 12 of my client’s innocence. I simply need to keep them from agreeing with each other. A jury that cannot reach a unanimous verdict is called a hung jury; prosecutors often react to hung juries with a drastically reduced plea bargain. In a handful of cases that result in a hung jury, charges are dismissed outright. A hang is often a more attainable outcome than an acquittal and as good as a win for my client.

With this in mind, I began to question my jurors. I did my best to hear at least one original thought – not in the form of “yes” or “no” – from everyone in the jury box. I did not have time to actually know these people. I did, however, have just enough time to stereotype that person. I asked about their work lives to see if they had ever found themselves standing up to a group of their peers. I imagined potential arguments among the prospective jurors in my head, and I decided which jurors would create the most plausible stew for dischord.

I returned to my seat with 18 hunches.

His Honor dismissed the jurors who had made it clear, during my questioning, that they could not be fair. Once this was done, the DA and I began the “shoot-out.” In most felony trials, each attorney may dismiss any ten potential jurors for almost any reason she pleases. Each attorney alternates, and on each turn the attorney may strike a juror or pass and save their challenge for later.

“The first challenge is with the defense,” His Honor said while appearing to count the number of plaster tiles on the ceiling. I remembered that jury selection is interesting only to the lawyers doing it. As I and the prosecutor had been asking our questions, the judge had nodded off, the bailiff had thumbed through a gun magazine, and half of everyone else had been texting. My client, meanwhile, had been doodling his next tattoo on the notepad I had given him. No one other than the DA and myself saw this process as the thrilling cat-and-mouse game that it felt like for me.

“Your honor, the defense passes.”

The DA raised an eyebrow. Surely I was not going to leave the retired cop, and I was certainly going to kick the guy whose anxiety about life is so vast that he can’t stand to read the newspaper. But if those two were to end up on the same jury as the opinionated grad student and the movie theater employee who gets pulled over by the cops three times per week as he rides his bicycle to work, I just might hang that jury. I might still win.

Meanwhile the DA absolutely could not allow this jury mix. After four rounds, I had passed five times, giving me a 5 challenge advantage over the DA. I now had twice as much power to alter the mix of jurors to my liking. Jury selection continued like this for the remainder of the day, and ended when both the prosecutor and I passed. These 12 jurors and 2 alternates would be the ones to witness the trial.

Ten days later, His Honor declared a mistrial after the jury hung; 10 jurors had voted guilty against 2 for not guilty. Despite the split in favor of guilt, the DA would later make my client an offer with a single-digit prison term on a case that carried a possible life sentence. I considered this a win.

As I mentioned in the previous chapter of this story, jury selection is war by other means. But two sides will engage in war only when at least one of them is gravely mistaken about its prospects for success. If you are ever chosen for jury duty, remember that one of the two sides that you will hear from is very, very wrong about the strength of the case, the amount of punishment it is worth, or, in my case, the liklihood of 12 strangers agreeing on it. Remembering this might help you make sense of what you see in a real courtroom.

Respectfully Submitted,

Norm DeGuerre

An Afternoon With Judge Goodhair

Seven police officers sat behind me as I questioned one of their colleagues in Judge Goodhair’s courtroom. Witnesses in a case are normally excluded from the courtroom when another witness is testifying, so I knew that these seven other cops were here to get a search warrant signed by Judge Goodhair. In the past, I have seen officers enter Judge Goodhair’s chambers with a thick stack of affidavits and then leave, warrant in hand, in far too little time for him to have read that stack of materials. Word had traveled quickly within the Santa Asphalt police department.

The officer who sat on the witness stand had been called to testify at a motion to suppress evidence for violations of my client’s Fourth Amendment rights. I did my best to piece together the officer’s story. In the early early morning–about 2:00 AM–neighbors reported a drive-by shooting, the target being my client’s home. At 10:30 AM,  the Santa Asphalt Police Department decided to respond in force to this very urgent situation. Out of grave concern for potential gunshot victims, the SAPD ordered my client and his two roommates to walk backwards out of the apartment one-at-a-time, each with their hands on top of their head. Each was then handcuffed and put in the back of separate squad cars. The SAPD’s continued search for gunshot victims took them into the back corner of my client’s sock drawer, where they found 50 pills of MDMA in need of immediate medical assistance.

My opposing counsel was maybe two years out of law school. Every important decision about the case thus far had been made not by him, but by his supervisor in the narcotics unit of the district attorney’s office. He was a nice kid, and I knew that he couldn’t just come out and say that his office needed to keep their conviction rates up in order to continue receiving grants from the United States Department of Justice, and that was why he simply couldn’t let my client do rehab instead of jail time. But he was perfectly pleasant and always memorialized the discovery that he had given me thus far in writing. I played along when he explained that he couldn’t give me what I had asked for in way of plea bargain because it was “too serious a case.”

I’m still not sure if he understood that he was being tasked to defend the SAPD’s behavior as a perfectly reasonable reaction in the context of a possible emergency medical situation.

With a premise so absurd, could the final part of my cross-examination of this officer not be? I resume my questioning:

Q: Officer, you testified that you believed that the clothing in the dresser was men’s clothing, correct?

A: Yes.

Q: And you testified that you believed this based on your “training and experience.”

A: Yes, that’s right.

He just couldn’t help himself.

“Training and experience” is one of the things that an “expert witness” can rely upon to testify to her “expert opinion” and have that opinion weigh as evidence in court. I assume this officer learned that in one of the many trainings the District Attorney’s office gives to local police agencies. From what I can infer from the testimony of 70% of the police officers in my jurisdiction, those trainings teach police to simply sprinkle the phrase “based on my training and experience” over whatever speculative bullshit they feel like spouting in order to turn their guesswork into admissible evidence.

This works most of the time, but not today.

Q: Can you describe for us the training that you had in the police academy on the defining features of men’s clothing.

Silence

A: Can you repeat the question?

Time bought for the cop to think of his answer

Q: When did you learn in the police academy how to identify men’s clothing?

Same question, different phrasing; let’s see how quick on his feet this guy is

A: Well, we had many trainings where senior officers would dress in civilian clothes and pose as suspects. They would wear men’s clothes or women’s clothes, depending on whether they were male or female. And so I got to see what clothing would be men’s clothing or women’s clothing.

Q: So these trainings were not actually ABOUT the nuances of gendered clothing items?

A: No.

Q: Was there a test you had to pass at the end of it?

A: No.

Q: Are you a member of any organizations devoted to forensic clothes typing?

A: Uh, no.

Yes, yes I did make this man answer these questions on the record before he was excused from the stand. Tee hee.

I looked up to the bench and I knew I had won–there was no way for Judge Goodhair to rule that the warrantless search of my client’s home was related to a potential medical emergency, not when the responding officer (the men’s clothing expert) responded to my client’s home 8 hours after the shooting, pausing to collect and photograph shell casings along the way to my client’s door. Judge Goodhair was going to have to throw out a whole bunch of hard-earned dope in front of a room full of cops, many of whom were there for his rubber stamp on search warrants of their own.

Judge Goodhair granted my motion and threw out the evidence. I reassured my client that yes, his case was dismissed and no, he would not have to drug test any more. My client was relieved to know it suddenly didn’t matter anymore whether the probation department’s urine tests could detect bath salts. The opposing counsel began to explain to his officer why the evidence had been thrown out. The other officers remained impressively poker-faced. A private defense lawyer sitting in back gave me a thumbs-up. I noted that it was only March, and that I might have just gotten my year’s worth of external validation in one afternoon.

And I remembered that sometimes a court of law can also be a court of justice.

Respectfully Submitted,

Norm DeGuerre 

Adversaries Need Not Apply

To:     Mr. Blaise Trettis, Public Defender

           18th Judicial Circuit Public Defender

           Brevard County, Florida

    

From:    Norm DeGuerre, Esq.

               Deputy Public Defender, County of Santa Asphalt

 

Re:        Recent Job Opening

 

Dear Mr. Trettis:

I hope this letter finds you doing well. My name is Norm DeGuerre, and when I am not exorcising my professional demons through anonymous blogging, I am a trial attorney with the public defender’s office in “Santa Asphalt,” CA. Don’t bother looking at a map, because this is not the name of a real county. Santa Asphalt is my affectionate pet name for my jurisdiction, which makes up for the lack of thriving small businesses by creating a glut of empty, sprawling retail spaces under 3 stories in height.

But I digress.

I understand that you have a position open in your office; I write you this letter to ask that you consider me for the position.

From what I have been told, a member of your local bench named John Murphy physically assaulted Andrew Weinstock, one of your former attorneys. On that fateful day, Mr. Weinstock appeared for at least two defendants and declined to waive his clients’ right to a speedy trial. His Honor then declared that “if [he] had a rock, he would throw it at [Mr. Weinstock].” In a fit of judicial dignity, His Honor then offered to “go outside” with the public defender to settle his differences. Mr. Weinstock followed His Honor into the hallway, and His Honor proceeded to hold Mr. Weinstock’s face in contempt with his fist. His Honor then retook the bench and gave the (now) unrepresented defendant advice on how to schedule his trial date.
On the off-chance that you have forgotten this unfortunate episode, I present you with this link and a reminder that the internet never, ever forgets things:

http://www.floridatoday.com/story/news/crime/2014/07/07/public-defender-in-courtroom-fight-resigns/12292987/

Yesterday, you publicly endorsed His Honor’s ignominious return to the bench, stating that your office asks the court to give “second chances” to your clients on a daily basis, and that it would be only sensible to extend the same courtesy to a judge who suffered the indignity of four-weeks of paid leave before returning to his post.
As mentioned above, I write you this letter as a first step toward applying for Mr. Weinstock’s now-vacant attorney position. Although I have no personal ties to the state of Florida, my hope is that any property I buy in the 18th Judicial District will become beachfront as the oceans continue their inexorable march to swallow man’s hubris. I want to work, live, and play in your jurisdiction, and from your public endorsement of Judge Murphy’s return, I think I have a good idea of what you’re looking for in an employee.

Like you, I too believe that the law should treat everyone equally. You so eloquently noted that your attorneys ask society to give their clients’ second chances, and that this compels you to extend the same courtesy to Judge Murphy. I assume from your sentiment that Judge Murphy was, in fact, treated in the same manner as one of your office’s clients, in that he was brought up on felony charges and held in custody among the general inmate population pending his trial. I also assume that he was given appointed counsel and that his file was placed in the enormous stack of files that one of your lawyers lugs to court every day. I assume that Judge Murphy felt pressured to plead to something in order to avoid your state’s draconian sentencing practices, and that his sentencing judge blithely ignored his long, sad history of childhood abuse and substance abuse.

Because it really wouldn’t be fair to treat him differently from any of your clients.

Like you, I too have realistic expectations of how to be treated by my fellow man, especially my fellow men in positions of authority. The Ivory Tower that gave my my law degree taught me that we have an “adversarial system,” and that such a system does not work unless the accused has a zealous advocate who pushes his client’s best interests against the weight of the state and, in some cases, the weight of public opinion. But really, the public defender is but one grinder plate in the nasty sausage machine that is our criminal justice system. Of course our clients have a right to a speedy trial, but why would I inflict that right on a judge whose calendar is inconvenienced, as though my client’s rights had “value,” and that they should not be given away unless exchanged for something else of value? Such idealistic bullshit warrants a good beat-down in the courtroom hallway for all of the defendants to see, so that they don’t get any uppity notions of inflicting their rights against the state.

Finally, I appreciate the fact that your position is an elected position. You made nice with a man who was so unsatisfied with the power and authority of his office that he had to inflict physical violence upon one of your employees in order to impose his will. Clearly you understand that an elected public defender cannot win re-election by boasting about how many defendants his lawyers walked, or about how many pounds of contraband your lawyers suppressed from evidence through skillful litigation; that would just piss off potential voters. After all, most voters in Florida stopped reading the Constitution after Amendment II, and have yet to realize that half of the Bill of Rights is devoted to rights of the criminally accused. In order to win office in such an environment, you must network with your jurisdiction’s local power brokers. Your decision to endorse the Honorable John Murphy’s return to the bench shows political savvy. In contrast, I would get hung up on how my official actions as Public Defender would benefit my clients; these hang-ups, unfortunately, tend to parallel the ABA’s “model rules” for attorney ethics. Being a stickler for rules will certainly cost me at least one election. I have much to learn from you if you will only give me the opportunity.

Don’t be thrown off by the fact that my attached resume includes a personal interest in Krav Maga, the official martial art of the Israeli Defense Forces. I would never dream of inflicting my right of self-defense against any member of the bench, no matter how much his groin deserves it.

Cordially,

Norm DeGuerre

 

Cry Havoc: Jury Selection in a World Without Civic Virtue (Part I)

 

This is not a manifesto on the virtues of jury duty. I will not wax romantic about the importance of juries in our system of justice or in any system of representative government. I hold no degrees in sociology, and so I do not pretend to be an expert on the behavior of humans in large groups. Jury consultants charge handsome fees to the attorneys who can afford their services; in exchange, these consultants provide detailed profiles on the ideal type of juror for an attorney’s case. What I provide here is information that would cause a “respectable” jury consultant to never be hired again, not because it is not true, but because no one in the legal profession wants it to be true.

But for a public defender in trial, jury selection is war by other means. Victory is rarely a plausible option; all too often, we conduct a jury trial for no other reason than our client’s have refused a plea bargain, or because the prosecution refuses to make your client an offer that is sane or humane. Sometimes my “defense” amounts to quibbling about the number of penile penetrations that the victim received (after all, each penetration that I can disprove means years off my client’s sentence). Sometimes my “defense” is saying that my client did not intend to kill his father by stabbing him in the neck, but merely to wound him grievously. Sometimes my defense will rest on solid legal grounds while repelling every other member of civilized society.

My task is to save this client’s life from that civilized society, if possible. No professional consultant would be able to create a profile of a jury that is sympathetic to my client.

Many of these thoughts came together for the first time during a recent trial, or rather, these thoughts spun wildly in my head as my panel of 75 potential jurors trudged into the courtroom where my client’s trial was being held. This particular client was accused of robbery. His robbery had begun as a simple petty theft when he walked out of the supermarket with two large cans of “malt beverage” (the smelly, affordable wasteland between beer and hard liquor). Things changed when the store security guard demanded a receipt; my client responded by brandishing a pointy weapon and saying something vaguely threatening, but definitely rude.

One by one and two by two the potential jurors filled the courtroom seats. Without fail, the first ones in would take the aisle seats, forcing others to lurch over their knees to get to other seats in that row. No one wants to sit next to each other, so everyone tries to leave 1-3 seats between themselves and the nearest seated person. Unfortunately, none of these people bothered to count the number of people in their group, or compare that number to the number of seats in the courtroom; every seat would be filled, and “personal space” was at best a temporary illusion.
Then a voice spoke to me from inside my head. Perhaps this was the ghost of John Adams, our second president and the man who defended British soldiers on trial for the Boston Massacre to a jury of Bostonians , or Jiminey Cricket, or whoever the embodiment of my conscience is supposed to be.

“You need to defend this man sitting next to you..”

 

Upon further reflection, my conscience was definitely more John Adams than Jiminy Cricket.

“You need to defend this man sitting next to you. If these people are going to put him away, then save your client from them.”

But how?! Not even my prettiest talking could save my from the overwhelming evidence against him. My only hope was that my 12 jurors would dislike and disagree with each other so much that they would not unite against my client.

As the great statesman Jiminy Cricket once said, cry havoc and let slip the dogs of war.

The judge summoned the first 18 people into the jury box. Twelve took the seats in the box, and the next 6 took seats in front of it. The front 6 would replace any jurors dismissed from the twelve in the box, and so the lawyers had a preview of who would take their places. His honor then began his questioning of the 18 potential jurors. I clicked my pen twice – a nervous gesture on my part with the accidental benefit of clearing my head before I prepare to jot down as much information as possible about these total strangers.

The judge began by asking what cities the jurors lived in: 10 out of 18 lived in “Santa Asphalt,” the largest city in my jurisdiction, 6 lived in the generic, contiguous suburbs that surround Santa Asphalt, and 2 lived in the affluent town to the south where people move to get away from Santa Asphalt.
The jurors provided their job titles with pride; unfortunately, most of their job titles gave me no idea of what their daily routines actually looked like. When a potential juror says that he or she is a teacher, nurse, dentist, contractor, or food server, I am able to get at least a vague picture of how this person spends most of his or her day. This was not going to happen with this group. To illustrate, you the reader can produce a potential juror’s job title by choosing one word from each of the collumns below.

Column A                Column B                Column C

chief                             systems                       manager

associate                     project                         vice president

deputy                         data                             engineer

assistant                      sales                           analyst

head                            marketing                  specialist

retired                        resources                    consultant

 

After the first fifteen minutes, I had almost no useful information about the people who could be deciding my client’s fate.

The judge continued by asking the following series of questions:

“Do any of you have moral, religious, or philosophical views that prevent you from sitting in judgement of another person?”

“Do any of you have problems with resolving conflicts in the evidence?”

“Can all of you hold all of the witnesses in this case to the same standard?”

“You cannot return a guilty verdict unless you are convinced beyond a reasonable doubt; does anyone have a problem with this?”

The judge took fewer than 90 seconds to ask these questions. Questions go by quickly when your targets respond with only shrugs and blank stares. If you, the reader, are wondering what some of these questions mean, then you are out of luck; the judge provided no clarification or explanation beyond the questions themselves. To top it off, the judge prefaced his final question with “does anyone have a problem with,” the one phrase guaranteed to throttle any possible response. No one wants to be seen as “having a problem” with a rule laid down by an authority figure in a black robe.

Sixteen minutes and 30 seconds have now passed, and I still had no useful information.

The judge turned questioning over to the district attorney. The DA’s awkward sputtering made the judge’s questions look like a thrilling, insightful Socratic dialogue by comparison. He asked whether the jurors would “follow the law” in as many different ways as he could think of. He made them promise they they would use “common sense” during their deliberation. He tried to illustrate circumstantial evidence by telling a story about a kid with cookie crumbs around his mouth (or something like that, I wasn’t really paying attention). After his analogy, the jurors’ quizzical stares, and his self-effacing attempt at humor, he had them promise to follow the law one last time before sitting down.

I checked my watch. I looked up, but then looked at my watch again. 45 minutes?! How does it take 45 minutes to convince a group of 12 non-felons who have driver’s licenses and current voter registration to obey authority and find my scary-looking client guilty without thinking too much about it?

“Mr. DeGuerre, you may begin,” the judge intoned.

 

To be continued…

 

 

 

 

Brushing Off the Dust

To my readers, passersby, and criminal justice enthusiasts:

Many of you have noticed that Chasing Truth, Catching Hell has been in a state of hibernation for the past few months; it has been too long since I have updated this blog. Without getting into needless detail, I will say that once in a while, my personal life becomes more exciting and eventful than my professional life, and I must divide my attention accordingly.

That being said, nothing “bad” has happened to me. Expect new posts in the very, very near future.

Thank you in advance for your continued interest.

Warmly,

Norm DeGuerre

How Do I Know if my REAL Lawyer is Doing a Good Job?

Dear Norm:

I was arrested recently, and my family pooled their money together to hire a private attorney. He sure sounds persuasive when we talk to him, and we really believed him when he told us that we made the right call hiring him instead of being represented by the public defender. He seemed genuinely outraged for me when I told him that I was being falsely accused, and promised that he had much, much more time to devote to my case than the public defender had. Since he’s bilingual and speaks the same language as the rest of my family, he convinced them too.

But now this lawyer is telling me that I should probably take the deal from the district attorney. I told him again that I did not want to take a plea bargain. He got really frustrated with me and told me that I was risking YEARS in prison if I didn’t. Then he told me to waive some sort of hearing, and then he set my case for jury trial. This week, he told me that my family had not paid him enough to do a jury trial and that he will drop me as a client. After all this, I’m going to be a public defender client anyway.

Did my lawyer screw me? How are people in my position supposed to know if their lawyer is doing a good job for them? And why is this blog the #4 Google search result for this question?

Help,

Abandoned Client

 

Dear Abandoned,

In July of last year, I wrote a post entitled How Do I Know if My Lawyer Is Doing a Good job? This post, with its accurate-but-uncreative title, was meant to give readers an idea of whether their public defenders are actually representing them well even when they fail to practice the niceties of customer service.

Since writing that post, more readers have found my blog by asking the internet “how do I know if my lawyer is doing a good job” than have by any other method. This question is my biggest source of web traffic. The worried defendants who toss this question into the ether find their way to my blog because it appears to be one of the only websites that attempts to answer this question. The American Bar Association has almost nothing on the subject. The other top search results for this question are advertising for private lawyers who so badly want my despondent readers to hire them.  These readers are better served by searching “bad lawyer” on Yelp! and reading the horror stories.

If you or a loved one are being accused of a crime, my heart goes out to you and you have my deepest sympathy. If you don’t have a legal education, knowing whether or not your lawyer is “screwing” you (another popular search query for this site) may be something you find out only after the important decisions have been made and the money has been spent.

An honest lawyer will tell you the truth about your case up front, not just what you want to hear, before any money is exchanged. Public defenders are probably the least likely to “oversell” what they can and can’t do with your case. You can’t compare your public defender to the lawyer on the billboard or commercial who promises to make all your problems go away. If you find your private lawyer is going just a little too out of his or her way to bash public defenders or court-appointed-attorneys, first ask yourself why this person wants to poach public defender clients, and then ask yourself how this person makes any money representing clients who don’t have a large income. It may be possible that this attorney, who appears at first to be a passionate warrior who wants justice, is actually scavenging for dimes by telling frightful canards about their local public defender’s office.

The decision to go with a public defender or a private attorney shouldn’t be that hard; if you can afford an attorney, then you should hire one. Public Defenders are for those who cannot afford their own attorney and who have no other choice. That being said, a public defender client may have a relative who is willing to cash out their retirement account, take out a mortgage on her home, or sell her car in order hire a private attorney who promises (loudly) to give his case more personal attention than the public defender will. The right to court-appointed counsel is meant to prevent this type of financial ruin. Unfortunately, some regions in the US have inadequate resources for indigent defense and clients living in these areas must make this kind of difficult choice.

Although I never intended Chasing Truth, Catching Hell to be a resource for those trying to figure out how to vet legal counsel, the universe has otherwise failed to provide helpful information. I have seen for myself the kind of damage this type of ignorance causes, so I will attempt to add some information to help those going through this difficult task. Remember that I cannot offer any legal advice over the internet. Although I am flattered that this blog has inspired complete strangers to sing the sad songs of their cases, a reader in need of legal advice should not make major life decisions solely based on the word of anonymous internet sources.

The following are all-too-true tales of clients who became clients of the public defender after being used and thrown away by private counsel:

First Tale of Woe

George was on parole after being released on a felony domestic violence charge. Regardless of the stern warnings and urine tests provided by his parole agent, George really, really liked crystal meth. However, crystal meth can be expensive for the regular user, and George soon ran out of TVs to sell; however, buying enough meth to resell solved both his supply and cash flow problems. Furthermore, crystal meth made it very, very difficult for him to interact with his wife in a constructive way during their divorce. Soon, George had another felony domestic violence case that carried a maximum of 8 years state prison. George also picked up a possession-for-sale case; however, although he had been selling, the police only caught him with 3 ½ grams of the stuff (an amount so common that police use the term “eight-ball” to describe it, since it is 1/8th of an ounce).

I represented George on his domestic violence case; since the DA had accused George of several “strike” offenses, no private lawyer would touch it. George also had a top-shelf public defender on his dope sales case; however, any lawyer worth his or her salt could have talked the DA into reducing that charge to possession for personal use. Unfortunately, George’s fantastic public defender failed to visit him at the jail because she had the gall to be in trial on another client’s case for two weeks. In response, George sold his car in order to hire a hack private lawyer. This private lawyer frightened George with awful tales of what happens when a public defender fails to spend enough time with an individual client, swooped in, took his money, and got him the exact same deal that anyone with a passing familiarity with the metric system could have gotten him.

George realized this prior to his sentencing on the case that I had with him, and wholly without instigation from me. George should have watched out for the following red flags:

  • Only a very special type of lawyer makes the bulk of his money by goading public defender clients to pay more than they can afford: the type that can’t market skills and who thus resorts to marketing fear.
  • This same type of lawyer will push hard to be hired for some of a defendant’s open cases but not others: they want the easy ones whose consequences won’t cause them to lose sleep.
  • If a lawyer promises to fight for you but asks for less than $50,000, this lawyer is not actually planning on fighting for you. If you are innocent and you want your day in court, a felony jury trial represents tens of thousands of dollars’ worth of legal services. If a lawyer talks a big game while arranging for a client to pay his $4,000 retainer at $85 per month, this lawyer will dump you before any “fighting” begins.

 

Second Tale of Woe

Joaquin was brought to the United States by his mother when he was 7 or 8 years old. Joaquin started hanging around with gang members in his neighborhood due to the usual combination of too much idle time, absent/abusive family dynamic, and constant threats to his safety in the poor neighborhood in which he lived. When Joaquin turned 18, an older gang member with a prison record coaxed him into helping with a home invasion robbery. Joaquin and this other man barged into a home, threatened the owner with a stun gun, and made off with whatever outdated electronics they could carry. This experience frightened Joaquin enough to inspire him to leave the gang lifestyle; he got a job as a plumber and was soon expecting a baby. However, years later, fingerprints taken from the scene of the home-invasion robbery matched the fingerprints that Joaquin gave when he was arrested for misdemeanor DUI two years after the home-invasion robbery.

Joaquin’s mom borrowed and sold as much as she could in order to hire yet another hack lawyer. This lawyer told Joaquin’s mom that he would explain that Joaquin was “just a kid” when this took place and that his behavior in the interim proves that Joaquin had changed his ways enough for any judge to cut him a break. Months later, Joaquin is a client of the public defender facing a life sentence because thanks to Hack Esquire, the district attorney added “gang” enhancements to the charged home-invasion robbery.  

Joaquin and his mom learned the following lessons much too late to be of any help:

  • It is natural for a defendant who does not speak English to want an attorney who speaks his language; the family finds it comforting for the exact same reasons. Sadly, some lousy lawyers know this and leverage their foreign language skills to earn quick trust.
  • If a lawyer tells a client exactly what he was hoping to hear and then quickly changes his tone when advising the client to take a plea bargain, one of several awful things might be happening. At best, the lawyer’s rosy sales pitch is meeting the jagged shoals of reality; if this is so, the client needs to ask the lawyer to explain why, after promising to fight for the client, he is now yelling at client in court’s attached holding cell that he is “screwing himself” by not taking a 16-year offer by the district attorney. At worst, the lawyer has just then decided that his client’s case requires much, much more work than his client’s meager finances can pay for.
  • A defendant should always get an explanation of all the stages in a felony case and clarify, before ever cutting a check, what stages in this process are covered by his retainer fee.
  • Finally, a defendant should never be afraid to ask why a proposed plea bargain is worth taking. Seek second opinions if necessary.

The following are general tips that do not have accompanying annecdotes:

Lawyers tend to be persuasive, smooth-talking people. Don’t hire a lawyer because he or she sounds convincing; convincing a potential client is easier than convincing a judge or a prosecutor.

Be mindful of prejudices that might steer you away from a great lawyer; younger lawyers, female lawyers, and lawyers of color often run circles around the middle-aged white men who lurk about my local courthouse.

The best private attorneys are often former public defenders.

The number of jury trials that a lawyer has done is not a perfect or complete metric of that lawyer’s skill and experience; however, it is in fact one very good metric. Don’t hesitate to ask.

As noted previously, don’t retain counsel without a clear understanding of the stages of a criminal case and which of those stages are covered by the lawyer’s retainer fee.

Before paying a lawyer anything, have a serious conversation about your goals for the case and how your lawyer will help you reach them. If you don’t like what they say, seek a second opinion. Depending on the advice you receive, be open to revising your goals in the face of reality.

A good lawyer will not ask you surrender any of your Constitutional rights unless you will receive something from the state of equal or greater value. Ask your lawyer what this is before agreeing to “waive” any of your rights. For readers in California, a preliminary hearing (or “prelim” for short) is a particularly important right, and one of the most common rights tossed away by private counsel. A prelim is your first chance to see witnesses testify against you, hear their testimony, and see how it withstands cross-examination from your attorney. After the prelim, the judge will decide whether there is enough evidence to warrant a trial. The right to a prelim is also the last right that many private lawyers convince their client to waive before dumping them on the public defender. Sometimes, waiving prelim is a good idea, primarily in cases where the evidence at prelim would allow the prosecutor to add more or worse charges; for example, an assault with a deadly weapon can very quickly become an attempted murder depending on how the witness testifies. More often, private lawyers encourage their clients to waive prelim for the sake of dropping the client faster. Again, your Constitutional rights are valuable; idealists might even say that they are invaluable. Do not waive any of your rights unless you are receiving something of equal or greater value in return.

If you find yourself becoming a client of the public defender after having been previously represented by private counsel, be prepared for a very different bedside manner. A public defender will almost always have done more jury trials than a private sector counter-part; if she encourages a person to accept a plea bargain, it is probably because she is thinking of how your case will look in front of a jury and not because she just wants to dump your case as soon as possible. The public defender will not be able to see a client as often or return phone calls as quickly as anyone would like, but this is not necessarily a sign of poor representation. Also, be prepared for some bad news in the event that the private lawyer fouled something up in your case.

And one last thing, and this is something that is as difficult to say as it is to hear: feelings, especially those related to unfairness, have no place in the justice system. In my experience, I have found that the more that clients struggle with feelings of unfairness, the worse decisions they make. You can be offered the best legal counsel in the world, but you may not be able to accept or receive it if you are stuck on how “unfair” your situation is. Instead, you may be tempted to give away your hard earned money to a lawyer simply because he or she did the best job sympathizing with your feelings. You may even lose a good plea bargain that you rejected because it felt “unfair.”

 

Good luck,

Norm DeGuerre