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

Criminology 201: Selected Topics in Disorganized Crime

Criminology 201: Selected Topics in Disorganized Crime

In my last post, I discussed a client whose life experience failed to square with the accepted narratives that are taught to police, probation, and corrections officers during the course of their training. I now have a vision of what it would look like if my client were given the chance to communicate his life experience in a classroom setting. If any criminal justice class actually would let this client teach the lessons that he had learned just by living his life, the final result would probably be a wonderfully educational public relations disaster for the school in question. It might climax in a conciliatory letter of some sort to the aggrieved student body, with a short explanation of how little their textbooks had prepared them to comprehend life on society’s margins.

Like this one:

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From the Office of the Academic Dean, William H. Taft Institute of Criminal Justice and Weight Loss:

A number of students who were enrolled in last semester’s Advanced Criminology seminar have petitioned for review of their grades and disclosure of the grading criteria used by last semester’s guest lecturer. Our guest lecturer has provided a complementary set of explanations for the final exam that was given at the end of the term. He hopes that you will then use the lessons contained within his explanation to  figure out what went wrong with the remainder of your assignments, and assures you that “life is hard, but it isn’t complicated.”

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Question 1: Multiple choice, choose the correct answer.

You are a probation officer supervising a juvenile ward. He is often truant from school, and his urine has never tested negative for THC, suggesting daily marijuana use. To aid in this minor’s rehabilitation, you should:

a)    Violate the minor’s probation and advocate for his detention in juvenile hall – the

       minor must cease his violations of state and federal drug laws

b)    Order the minor to enter residential drug treatment for what is clearly a crippling

       addiction to a Schedule 1 controlled substance

c)    Get the minor drug counseling and something, anything, worthwhile to do with his day

d)    Wait until he gets arrested for something more serious, and then figure it out

Half of the class chose answer choice (a), the other half chose answer choice (b). Clearly, neither half had experimented with marijuana in high school. If you had, you would know that marijuana is not a reason to skip school; the decision to skip school is made completely independently of the decision to smoke pot. School holds nothing for a huge number of these children. They often have learning disabilities, or anger problems, and largely-inherited substance abuse patterns. They need far more help to succeed in school than they receive, and many predict their own failure early and throw in the proverbial towel. And with all this free time these kids now have, why not smoke pot?

Of course teenagers shouldn’t be smoking pot. It interferes with their brain development, screws with executive functioning (very relevant for someone debating the merits of stealing a car), and creates a lifestyle that makes it very hard for them to interact with professional adults (teachers, employers, customers, etc). But pot isn’t dangerous; in fact, it has no known fatal overdose. Depriving them of freedom for smoking it is counter-productive at best, and completely self-defeating at worst. Of course, some sort of intervention is necessary, and without it, this minor will likely end up in serious legal trouble: not because of marijuana, but because of the people in his life who also happen to smoke it. Those who reside in the real world will answer with choice (c). Those who are already employed in the system might answer with choice (d), but that’s not the right answer either.

Question 2: Multiple choice, choose the correct answer

Which of the following can be considered as proof that a juvenile has joined a gang?

a)    Wearing baggy jeans

b)    Living in a neighborhood that is controlled by a gang

c)    Spraying gang graffiti on a highway overpass

d)    None of the above

To those who chose an answer other than choice (d), consider for a second that the word “gang”suggests a semi-disciplined criminal conspiracy. Wearing certain styles of clothing, even if that clothing bears the colors or logos that gangs use to identify themselves, says nothing about whether a person is a member of any such organization. Anyone can wear a certain color of clothing, and clothing can be shed at will when the social group dynamics cease to reward the teenager for wearing them.

Like conformist fashion tendencies, mindless vandalism is also common to at-risk youth. Anyone can spray anything on any surface; the vandal does not need to have been given orders to do so in micro-writing that was smuggled out of a maximum security cell block in the anus of a corrupt corrections officer.

Finally, while many gang members have the misfortune of growing up in neighborhoods that are already divided into gang rivalries, no sane person chooses to live there. People are born there, stay there, have no hope of ever leaving there, and will probably die there. These kids have roughly the same life expectancy as someone living in the Middle Ages. Gang membership is assumed by rivals just by virtue of that child’s neighborhood. Before the child knows it, he is choosing his bus routes to school so as to avoid “rival” territory. He is already suffering the drawbacks of gang membership; wanting to accept the benefits is an easy sell, especially if they have no other alternative for safety. Again, the correct answer is choice (d).

Question 3: Short answer

What does it mean to “hold someone accountable” for his actions?

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Holy shit. As often as I heard you say this during our class discussions, very few of you seem to know what this phrase actually means. Holding someone accountable doesn’t mean showing them that their actions have consequences: anyone who has witnessed a car accident understands this. It doesn’t matter how many years of prison a person receives; the Convicted does not need you to remind him, repeatedly, in varying tones and volumes, that his own actions resulted in tremendous loss to himself and others. I suspect that many of you relied – to your detriment – on the thesaurus, which lists the following as synonyms for this phrase: attack, brand, blame, denounce.

Holding someone accountable for their actions entails building empathy for those affected by their actions; these parts of the brain may have atrophied from years of mistreatment in childhood, so we need to be patient. Holding someone accountable includes teaching them about alternative choices that could have been made. Extensive work needs to be done with those who – with or without reason – felt that they had no choice in their actions. Too many of your answers would have fit on bumper stickers, let alone three lines. Put more thought into phrases that are used so frequently. And for God’s sake, stop thinking in slogans.

Question 4:

Describe a situation where a person might plea “no contest” to a crime that they did not commit.

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Again, a disappointing number of blank answers for this question. The students who confronted me about this question after class insisted that no one in their right minds would do such a thing. During the course of these conversions, I inferred that none had ever been given poor legal advice by an attorney that either did not have the time to care, the ability to care, or the retainer to care about that person’s case. A depressing number of Accused plea because, quite simply, they do not have confidence that their attorney has heard, understood, or investigated their defense. And without a defense, why wouldn’t they plea?

Do not underestimate the frightening penalties that follow trial, especially in jurisdictions where the criminal sentencing laws (and the judges tasked with imposing them) are left to popular vote. Many, many innocent people (or people who have a colorable argument for their innocence) surrender their rights simply to minimize risk.

Finally, don’t underestimate how often the district attorney uses a “devil’s bargain” to coax a plea from a defendant who has a strong defense. In fact, the deals become more irresistible as the prosecution’s case weakens. For example, a defendant who is in custody on the day of trial will find a “credit for time served” offer irresistible. An 18-year-old will plea to terrible things in exchange for minimal time. A good lawyer will sometimes advise him or her not to take the deal, but the defendant will always respond by asking, “But I get to go home today?” In California, an 18-year-old becomes a walking life sentence if the charges to which he pled happened to be “strike” offenses; his next felony case might result in a life sentence. The DA gladly cuts time up front with the expectation that they will get him later; and if his record is made serious enough early on, that “later” can last the rest of his life.

I know that the premise of this question hurt some students’ tender sensibilities, but taking my lectures seriously would have given you plenty of material for to answer this question.

Question 5: Essay

Part I: Consider the the following hypothetical. The minor described below is a ward of the juvenile delinquency court and you are his probation officer:

    Jaime is a 15-year-old high school freshman. His mother probably should not have had children until she had a stable relationship and/or living arrangement. Jaime’s mom probably should have tried to have all of her children with one person, rather than several people. Jaime’s father should have attended his domestic violence classes like his probation officer wanted to. He also shouldn’t have died when Jaime was 9 years old. Jaime’s mother should have finished her drug rehabilitation program and should not have relied as heavily upon her own mother for child care. Jaime’s mom should not have dropped out of high school, because Jaime’s mom should not have had to settle for working a graveyard shift at the front desk of a shady motel by the freeway. Even though she insists upon working this job, Jaime’s mom really should be getting home in time to make sure that Jaime and his little brother are getting to school on time.

    Jaime should never have failed his first semester of high school. Jaime should have studied harder and placed a greater emphasis on his education. Jaime should not have gotten himself suspended for fighting; Jaime should learn to control his seemingly irrational bouts of anger. Jaime should not take his anger out on his family by punching holes in the wall. Most importantly, Jaime should not be cutting class to smoke marijuana.

Part II: Please comment on the following, and show how it would influence the way you would approach Jaime’s supervision:

When you use the word “should,” you are arguing with reality.

Unfortunately, I have no sample answers to discuss because none of you attempted an answer. This was disappointing given the preoccupation that most of the class expressed concerning criminal street gangs. Several students expressed interest in stopping violent gangs, mainly because of some awful episode of Lockdown: Life on the Inside that they insisted upon mentioning in class.  However, none of you realized that little Jaime is a prime candidate for gang membership. Kids love group identity, and young men love a sense of feeling power and control.

Imagine the many, many niches in Jaime’s life that would be filled by a gang. He would have family, safety, financial opportunity, and a steady drug source within one social circle. Eventually, Jaime will get caught. He will be arrested. He will be sentenced according to the astoundingly severe sentencing laws that Californians put on the ballot. As a result, Jaime will possibly serve 10, 15, or 20 years in prison on his first case. And with nothing to do for 10-20 years, and with no social capital other than gang membership, what do you think will happen once he gets to prison? Prison gangs are the Frankenstein of California’s criminal justice scheme, and fixating on what someone should do, taking decades from their lives for things that they should not have done won’t actually fix anything.

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Well, readers? What is your answer to Question 5? How would our approach to criminal justice issues change if we addressed the real world as it is, and not how it “should” be? Anyone? Anyone?

Please share your thoughts in the comments section. I would love to hear some new ideas.

Respectfully Submitted,

Norm DeGuerre

Criminology 101 – Advanced Theories of Street Crime and Hard Time.

“There was crime, but it sure as Hell wasn’t organized.”

This is a quote my client told me in an interview room at the jail while recounting his growing up as a gang member in an agricultural community about two hours away from my county’s Hall of Justice. Nearly all of the adults in his life had been unemployed and/or addicted to something. He and other kids who roamed the streets–instead of going to school–banded together, usually under the influence of some older brother who had just recently been released from prison. They wore the same colors and got the same tattoos. But this was no paramilitary criminal conspiracy; most of this group’s crimes revolved around drugs and fighting.

This client was baffled that the laws that had been passed to catch sophisticated criminal conspiracies were being used on him. He was accused of helping his codefendant sell $1500’s worth of stolen property to an undercover cop. And by “helped,” he actually sat in the codefendant’s living room drinking 40 ounces of something vile while the codefendant sold stolen property to an undercover cop. But because he and codefendant grew up with each other and had been members of the same “gang,” the district attorney believed that he was somehow furthering a criminal conspiracy merely by his presence, which happened to be on the couch, drinking.

Within days of that fateful bout of day-drinking, my client checked himself into rehab. Weeks after, he began the necessary court proceedings to get visitation rights for his daughter, who prior to that had been on the verge of being placed into foster care. He no longer had to live with his old gangbanger friend or rely on his old gang ties as currency for life favors. And then the district attorney indicted him.

He spoke with pride about the two community college classes that he had passed between bouts of incarceration. He mentioned having a fantasy in which he was able to share his life experience with future law enforcement in a classroom setting. And I had to wonder what that would look like.

Few if any of the professionals working in the field of criminal justice have any personal experience that allows them to relate to, let alone understand the people on its receiving end. Communicating that experience to others is a challenge that I will take up in my next post.

Respectfully submitted,

Norm DeGuerre

A Brief Foray Into Self-Promotion

Dear Readers:

Chasing Truth, Catching Hell has been selected to join the ABA Journal’s “Blawg 100,” the Journal’s annual list of the 100 legal blogs that it recommends to its readers. I am honored that someone up there has found things worth reading on Chasing Truth.

And of course, whenever a list is made, a ranking must follow. The Blawg 100 has listed all of its suggested blogs and has encouraged readers to vote for their favorite. For those who have enjoyed Chasing Truth, Catching Hell on at least one occasion this year, consider voting for it on the Journal’s website. You can do that by clicking here or by clicking on the Blawg 100 badge that has just been added to the sidebar of this site.

Chasing Truth has been quiet lately; surely my fellow public defenders understand how busy things get. But the next post is coming soon, and this one will be part one of two.

Thank you again for reading.

Respectfully Submitted,

Norm DeGuerre

Profiles in Happenstance

Chasing Truth, Catching Hell turns one year old today. A surprising amount has happened since then; my cathartic creative writing project is now featured on the ABA Journal’s “blawg” roll and has hundreds (plural!) of readers. An amazing community of bloggers, lawyers, writers, and informed citizens has visited Chasing Truth over the past 12 months.

Many stumble upon Chasing Truth through search engine queries. In furtherance of this blog’s goals of educating and entertaining its readership, I will attempt to answer the questions that many of Chasing Truth’s readers have been trying to answer with the help of the internet.

“How to win a Romero Motion.” This reader is a public defender (or intern) sitting in front of an office computer. His client faces a life sentence under California’s Three Strikes law. In a Romero motion, the public defender will, essentially, beg for mercy in the face of his client’s love of drugs and/or violence. In utter desperation, he has consulted Google for answers. Google doesn’t know how to win a Romero motion. Unfortunately, the only sure way to win a Romero motion is to defy the laws of physics and travel backwards in time to stop your client from having a record. If this is not possible, the public defender will simply have to plumb the depths of his client’s life story, find the shiniest nuggets of redeeming humanity, and convince a judge that the remainder of his client’s human worth is so precious that the drafters of the Three Strikes law would never have wanted the client to serve a life sentence.

In all seriousness, best of luck.

“What happened to Demontes Wright?” This reader is an idealistic young lawyer whose friend has a job in asbestos litigation that allows him to subscribe to HBO. Young Lawyer invites herself over to watch Gideon’s Army, an excellent documentary on public defenders. Gideon’s Army is the story of three intrepid public defenders in the South who war for their clients’ freedom against a drought of resources and a flood of indigent clients. During the climax of the film, public defender Brandy Alexander argues that her client, Demontes Wright, could not have been the man who robbed the liquor store in question. I’m sorry that the plague tornado knocked out the electricity before this reader could see the end, but rest assured that Ms. Alexander won her client’s freedom, despite the ease with which her innocent client could have lost ten years of his life in prison.

Related search: “Travis Williams public defender Georgia.” This reader has the bad luck of being accused of a crime in Georgia, and is desperately hoping that Gideon’s Army super lawyer Travis Williams will be his public defender.

“Are my rights violated if I can’t even go to the bathroom, but they say you’re not even under arrest and police interrogate me without reading me my Miranda rights?” This reader has been questioned by police to the point of physical discomfort. However, in deciding whether his rights have been violated, the question is not whether the reader felt free to leave. The question is whether the reasonable, prudent, Yale-educated Supreme Court justice would have felt free to leave under similar circumstances. If a member of the Ivy League ruling class would feel free to waltz out the door of the police station, this reader should too. If a cop has told this reader that he can’t use the bathroom, he is being detained. If this ever happens to you, stop talking immediately. In all honesty, consider soiling yourself to prove just how trapped you feel.

“Getting help for your client on remand” The good news is that this reader finally got a referral from that business card that he taped above the urinal in the bathroom that adjoins the visitor’s lobby at the local jail. The bad news is that now this client expects his money’s worth. This means that unless the attorney can lower his client’s bail, the client will not be able to make more money to pay the lawyer. This will oblige the lawyer to waive preliminary hearing and then dump his client on the public defender once the case is set for trial.

This reader needs to get his leased Audi out of the nearby parking garage very, very quickly. I know a number of reckless teenage vandals.

“Can a good lawyer get you out of anything?” This reader has hired the lawyer described in the paragraph above. Never underestimate the private bar’s willingness to sell a client an enema of sunshine in lieu of honest legal representation.

“How do you win a Marsden motion?” Unfortunately, I wouldn’t know anything about that. Best of luck to you. Indigent criminal justice reform needs to take place nationwide. People who commit crimes in my county are lucky to have such good representation. But I want everyone in America to have access to the same high quality level of defense. Protecting the rights of our most vulnerable citizens protects the rights of everyone.

“People in jail for drug addictions ‘leave a comment’” County jail is a terrible, smelly, occasionally violent, and perpetually depressing place. Its callow corrections officers are not interested in making any of its tenants into a better person. Maybe this reader needs to write a Yelp review?

“Movies about chasing something and never catching it” Thanks for stumbling upon my blog by accident. I really do appreciate the additional readership. I’m sure that somewhere, out there, is a Zooey Deschanel movie with your name on it.

“Can I add a profile to the Megan’s Law website.” This impish prankster has a great idea for getting his chemistry teacher fired. Unfortunately, these gates of hilarity are blocked by Department of Justice firewalls.

“Crystal meth cannot climax” Not to be an insufferable optimist, but some would say that this is a feature of crystal meth, not a drawback.

“Public defender burnout.” This reader is likely a public defender, and she was probably scheduled to spend a full day cross-examining tearful victims in an all-day preliminary hearing. This reader welcomed the excuse not to check the blinking light on her phone that tells her that she has yet another unhappy call to return. This reader may well be deliberately postponing that life-sentence case that he just cannot bear to try until another attorney takes over his calendar. Or, this reader may have the burden of being someone who works hard without complaining. His public defender’s office may have rewarded this work ethic by giving him some terrible, thankless, high-volume court calendar that the squeakier wheels refuse to do (and somehow get away with doing so).

For what its worth, I’ll bet that this reader is doing a great service to her clients. I will also wager that most of her clients think so too. We love you. Honest. You are why we need student loan forgiveness for government servants. Being able to pay bills every month without excessive anxiety would really help with preventing burnout, would it not?

“Pretenders drink while you’re at it.” This is clearly one of those Zen riddles that one ponders while hoping that his coworkers have not noticed the third vodka soda that he has ordered during the weekly office happy hour. This reader is cheating by searching the internet for answers.

A confession to friends of this blog; I never expected to still be adding to this site one year later. You make me want to keep writing. I reserve the right to broach this blog’s anonymity when I need to plug my first legal thriller; until then, I remain your secret admirer.

Respectfully Submitted,

Norm DeGuerre

It Looks Like You’re Trying to Instruct a Jury…

Good Morning, Your Honor!

It looks like you’re working on a set of jury instructions. How exciting! Clearly you’re in the midst of a jury trial, and you’re almost ready for the closing arguments. Of course, you’re going to warm up the audience by reading a 60-page packet of jury instructions for about 45 minutes. Although the two lawyers in your chambers would prefer working on their closing arguments to watching you argue with MS Word’s automatic formatting decisions, you and I both know that finishing these instructions in their presence is a much more important use of everyone’s time.

Hey! Why did you close me?! For the past twenty minutes, I have watched you mash the left mouse button in a vain attempt to change the line spacing. You clearly need my help!

Wait! Don’t close me again. Did you know that giving an incorrect instruction is reversible error on appeal? Ha, clearly you knew that; these instructions were written by judges for other judges to read, slowly, repeatedly, in chambers and in open court. Who knows whether the jury will actually understand them? That is clearly not the point. Now kindly move that cursor away and get back to reading. We have lots of agonizing to do while these two lawyers drum their fingers.

It looks like you’re working on the “reasonable doubt” instruction. This whole instruction looks risky to me. Didn’t one court of appeal say that trying to define reasonable doubt is like playing with fire, because any attempt at defining “beyond a reasonable doubt” almost inevitably makes the burden of proof sound lower than it is?

Oh, your added instruction makes everything clear: “Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true.” This won’t be a problem, because it gives no definition whatsoever. How does such a solemn phrase manage to convey absolutely no information? How many of your twelve jurors know what “abiding conviction” means? Do you even know what it means? How does it differ, in substance, from just saying, “proof beyond a reasonable doubt makes you really, really, really sure that this guy is guilty?” Refusing to give any information is a great way to make sure that you don’t give wrong information! Also, I especially like the way it avoids comparing “beyond a reasonable doubt” to the other levels of proof in the legal system:

      Too much information for a jury instruction     

This way, if the defense lawyer actually tries to instruct the jury beyond what you’ve written by contrasting “beyond a reasonable doubt” to other levels of proof, the DA can point out, in his rebuttal argument, that YOUR jury instruction gives NONE of this information. The DA gets to hint that the defense lawyer has pulled all of this information from his rectum, even though the DA knows full well that everything the defense lawyer said was true. I love it when lawyers are sneaky!

A tired-ass “guilt-o-meter” chart that also isn’t in the instruction

Oh, it looks like you’ve moved on to jury instruction #355. “The defendant has an absolute constitutional right not to testify … Do not consider, for any reason at all, the fact that the defendant did not testify.” Hey Judge! Whatever you do, under no circumstances are you to think about a giant squid. You didn’t think of a giant squid just now, did you? I just told you not to! How do you expect this jury to follow an instruction not to think about something that you just made them think about?

Hey! Can’t you see that your hanging indents should be set to 0.38, and not 0.5? Don’t worry; I’ve gone back and changed all of the indents in your document. You’re welcome.

It looks like you’re working on the final pre-deliberation instruction. Do you remember that today is Wednesday? Do you understand that you will likely be giving this instruction on a Thursday afternoon? Do you think it might be worth adding something about not jumping to a verdict on Friday afternoon just to avoid having to come back on Monday? When do we get to the instruction that at least acknowledges the real world and its prejudices? Why do all of these instructions read as though they were penned in a hermetically sealed vacuum by people whose professional and personal identities hinge entirely on the presumption that our system is actually fair? Have none of these people ever served on a jury?

Ok, that’s enough for me. I’m done, Your Honor. Let me know when you need help writing a letter in Times New Roman.

[Clippy and his likenesses remain the property of Microsoft Corporation; clearly no one else wants him.]

Respectfully Submitted,

Norm DeGuerre

A Modest Proposal for the Looming California Prison Crisis

In order to comply with a federal court order, Governor Jerry Brown must release 10,000 more prisoners by the end of this year. Over the past 15 years, California’s prison population has ballooned by 500%. At the time of the federal court’s order, California’s prisons were stuffed to 175% of inmate capacity. The release of 10,000 more will bring that down to the 137% ordered by the federal court. Prior to this, about one inmate per week was dying in prison due to preventable medical reasons made unpreventable by overtaxed prison health care systems.

The bulk of these prisoners are serving multi-year or multi-decade sentences under California’s Three Strikes law, regardless of how long ago a defendant committed his “strike” offense. At least a thousand are serving terms for non-violent drug offenses. Several thousand are approaching old age. Many others would be treated more effectively, more humanely, and more affordably in psychiatric facilities.

Governor Brown responded to the federal court’s most recent demand with what one lawyer called “willful defiance.” Governor Brown has since modified his stance to include giving over $300,000,000 to the Corrections Corporation of America to rent their for-profit prison facilities. Governor Brown says that this is necessary for public safety, because public safety would be jeopardized by the early release of an elderly inmate who committed a robbery 20 years prior, and who will likely die of natural causes before finishing his lengthy prison term for some property crime.

Governor Brown is missing an opportunity to solve problems in California’s traditional manner: letting the voters decide by way of ballot proposition. Californians routinely place decisions regarding criminal sentencing and the taxes that pay for it on the ballot for popular vote. Thus far, the initiative process has resulted in a huge prison population that no one wants to pay for. But that’s only because the right initiative hasn’t been passed yet.

I propose the following legislation:

Section 1

The Title of this act shall be the “Entitled Baby Boomer Criminal Justice Act,” and shall be referred to hereafter as the Act.

Section 2

We the People of the State of California have agreed upon the following knee-jerk reactions to the complicated social problems of crime and drug abuse in our state

a) If you do the crime, then you do the time [original emphasis];

b) We, the People, breathlessly follow any news story concerning the disappearance of a photogenic child, and we have decided that the sad afterglow of such a highly publicized tragedy is the perfect time to craft legislation that will apply to everyone for the foreseeable future;

c) We, the People, are very confident that no provision of the Act will interfere with the life, liberty, or happiness of anyone that we know, because they are good people and our kids are in private school;

d) Unlike the fields of medicine, astrophysics, or engineering, the subject of criminal justice requires absolutely no specialized education or training; this gives our opinions the force and weight of actual research.

Section 3

Recognizing that more than one-fifth of the current prison population are senior citizens, We the People declare the following measures necessary for public safety:

a) At no time shall an ailing or elderly prisoner be given access to motorized wheelchairs whose battery life would allow them to travel more than 20 feet beyond prison walls;

b) At no time shall an elderly prisoner be given access to non-motorized wheelchairs with brakes, since brakes would encourage elderly inmates to attain dangerous speeds during escape attempts;

c) All nurses, doctors, surgeons, and pharmacists who attend to elderly prisoners shall register as “criminal enablers” with the sheriff of chief of police of the city or county in which they reside, and shall not reside within 1000 meters of a park or playground;

d) For inmates who have been sentenced to serve additional time beyond a life sentence, their mouldy bones and other mortal remains shall be kept in a vessel made of recycled cardboard and stowed in a broom closet to be determined by the Department of Corrections and Rehabilitation.

e) An inmate’s age, frailty, or pitiful life expectancy shall not be considered when deciding whether to release the prisoner to ease institutional overcrowding, because if you do the crime, then you should do the time.

Section 4

The following provisions have nothing to do with the fact that the Act was drafted, edited, and promoted by the Corrections Corporation of America and the union representing state corrections officers:

a) Unlike alcohol, tobacco, and prescription opiates, cannabis sativa and cannabis indica are dangerous, addictive narcotics that cause overdoses, murder, and dangerous depletions of both Cool Ranch Doritos and internet bandwidth. Any inmate whose blood tested positive for the presence of THC at the time of their arrest shall not be granted early release under any circumstances;

b) Anyone who, while present in the United States without legal documentation, dares to exchange their labor for money, goods, or services shall be imprisoned in the county jail or in state prison for 16 months, 2 years, or 3 years. This includes those who exchange their labor for produce that they later sell themselves in lieu of actual wages;

c) No part of subdivision (b) shall be used to punish the Job Creators ™ who lure undocumented workers from their troubled homelands with the promise of toil in exchange for produce;

d) We the People, by way of our elected governor, and the Department of Corrections and Rehabilitation shall give as many millions of dollars as are necessary to the purveyors of privately owned prisons for use of their facilities. This policy will continue until California’s sentencing laws have accomplished their goal of creating a crime-free Utopia, which will assuredly happen some time before the state completely runs out of money.

Section 5

We the People hereby refuse to pay for anything that we want, including the implementation of the Act. Specifically:

a) All budgetary items not related to the prosecution and prolonged incarceration of inmates shall be tallied under a single line item called “bullshit;”

b) All of the costs for maintaining the prison population shall be deducted from designated “bullshit” expenditures, because no state services benefit the gainfully employed and our kids are in private school anyway;

c) The Courts of Appeal will heretofore be known as the Courts That Waste Tax Dollars by Delaying Executions, and their operating budgets shall be allocated along with all other “bullshit” expenditures;

Section 6

In keeping with California’s rich tradition of placing individuals’ constitutional rights on the ballot for majority vote, We the People hereby strip the Superior Court, Courts of Appeal, and Supreme Court of jurisdiction to hear cases in which prisoners allege that the Act strips them of due process rights or imposes cruel and unusual punishment under the Eighth Amendment to the United States Constitution.

Section 7

Any orders by the Supreme Court of the United States that are contrary to the Act shall be returned to the Supreme Court by registered mail with an affixed Post-It note that declares, “UR not the boss of me,” followed by the following emoticon: > : p

Since I am unable/unwilling to breach this blog’s anonymity to gather signatures and submit the proposal to the Secretary of State, I entrust you, my readers, to carry this torch for me.

Because if you do the crime, you should do the time!

In accordance with statute.

In accordance with statute.

Respectfully Submitted,

Norm DeGuerre