A Reluctant Call for Mercy Killing: This Lawyer’s Opinion

The time has come for the criminal defense community to rethink its well-rehearsed response to the following question:

What would happen if every defendant who wanted a trial got one?

Michelle Alexander at the New York Times posed this question in 2012…or more accurately, Ms. Alexander interviewed a former defendant named Susan Burton, and it was Ms. Burton who posed this question. Ms. Burton had served multiple jail terms for drug related offenses. Each time, she got out by accepting the prosecuting attorney’s plea bargain. Each time she got out after serving the sentence she agreed to serve, the state released her back into the under-served, over-policed neighborhood from whence she came. Her status as a convicted felon barred her from job and housing options, and her freedom lasted only as long as it took for the police to find another reason to drag her back in.

Ms. Burton’s story is too common. The criminal court system in the United States jails a larger fraction of its citizens than does any other system in the world. The numbers of imprisoned African American men are the most shocking and shameful; the United States jails more people than were jailed in the Soviet Union during the heyday of Stalinism, and the United States jails a greater percent of its African American men than the percent of Soviet citizens held in the gulag.

Ms. Burton’s question strikes the beast in its one weak spot; the people who promote this mass brutality don’t want it badly enough to pay for it.

Before the federal courts intervened, California’s prisons were stuffed to 175% of their designed capacity. The state later passed several laws designed to reduce the swelling: California’s infamous Three Strikes law now only applies to those whose “third strike” is serious or violent, prisoners can serve their time for property and drug crimes in local jails instead of state prisons, and simple possession of any drug is now a misdemeanor. These reforms came not because California suddenly realized that narcotics had long since won the War on Drugs or that all life was too valuable to take from someone for just any felony; they came because California had neither the money to build more prisons nor the stomach to raise taxes for that purpose..

California’s death penalty will likely share the same fate; Judge Cormac Carney ruled in 2014 that California’s death penalty was unconstitutional because the state did not provide enough funds to hire competent defense counsel who would “exhaust” all of the appellate options for the condemned so that he could be executed. There were no appeals to the inherent worth of every human life, even ones who have taken other lives from us, and California was not overcome with the shame that should come from being among the last regimes in the industrialized world that practices capital punishment. California still wants to kill people, just not enough to pay for the due process that must come beforehand.

At the trial court level, more than 90% of all criminal cases resolve by plea bargain and not by trial. As Ms. Burton pointed out: if every defendant demanded a speedy trial, the courts would collapse under the weight of all those rights happening at once. Cases would be dismissed for lack of court resources and the regime of mass incarceration would become too expensive for the courts to bear. So what would happen if every defendant who wanted a trial received one?

I posed this question on social media (on Twitter @normdeguerreesq): if bringing the system to its knees is in our clients’ best interest, why aren’t we doing it? This got a little bit of attention, but the response makes me think that the question wasn’t interpreted the way I had intended. Mark Draughn at Windy Pundit and Mark Bennett at Defending People wrote answers to a slightly different question: why don’t we just take every case to trial so that the system buckles under the pressure? Both writers responded with the same answer that every young public defender hears from her supervisor when she daydreams aloud about using her massive stack of case files to bring the system to its knees by trying every case.

Both Mr. Draughn and Mr. Bennett seem to interpret my tweets as though I had suggested that every defendant should choose to go to jury trial. Such a tactic would most certainly be unethical if recommended to all defendants regardless of their individual situations. Ethically, a lawyer is bound to pursue the best interests of each individual client and not her clients as a population. There are some philosophical discussions to be had about whether or not the interests of the many would actually benefit the interests of the few, but this is not a conversation for boots-on-the-ground lawyers like myself and it is most certainly not a call to action I advocate. The defendants who will be hurt with a stiffer sentence after trial should be encouraged to plea, as should those who – for whatever reason – are being offered a sweet deal by the DA. I use my experience as a PD to advise my clients whether or not a deal is worth taking.

However, I am not asking whether we should encourage every defendant to go to trial. I am asking, what would happen if every defendant who wants a trial got one? The difference between these two questions is subtle but important.

To answer this question, the lawyer must accept that being a defendant’s attorney entails being his voice of reason behind closed doors and the voice of his client’s best interest in the courtroom. Despite the histories of poor choices that often land a client’s file on our desks, the decision of whether she wants a trial is hers and hers alone, and that choice must be respected so long as the lawyer has shared his honest, candid professional opinion about the merits of any plea deal and the risks of going to trial. If there is a concern regarding client’s competence to stand trial, that decision is referred to medical doctors and judges. So long as my client is competent, as her lawyer, I treat her that way.

Too many lawyers can’t bring themselves to honor a client’s decision with which they disagree. I have heard public defenders and private lawyers yell at their clients in the courthouse hallways and berate them for not accepting their plea bargains. These lawyers win their guilty pleas, but not because the plea bargain was that much better than the likely post-trial sentence and certainly not because the client has finally accepted his lawyer’s wisdom. These clients still want a trial but no longer believe that their lawyers will actually fight for them. It is this situation I am speaking to.

For every client who wants a trial to get one, the defense bar will have to remind themselves that their clients are the ultimate masters of their own fates. The attorneys who fear trial for whatever reason will have to grow a spine and polish their skills or otherwise find a new line of work. The charred and crispy public defenders who have been doing their jobs for too long to try cases will need to step aside, take their pensions, and make room for new blood.

Finally, and most importantly, we must remind ourselves that Constitutional rights have value, and they should not be surrendered unless the accused is being offered something of comparable value. We need to remind ourselves this when we are tempted to tell a client to plea simply because he is guilty. A client’s guilt is largely irrelevant to whether a plea bargain is in his best interest; what matters is whether the state can prove it and whether the proposed plea is lower than the likely post-trial outcome. If the answer to either question is “no,” then the client’s case should be tried.

Frankly, many lawyers need to recalibrate their sense of whether a plea bargain is actually worth taking. Ms. Alexander’s article has a particularly vivid example of a plea bargain that probably looked more attractive than a trial…at first:

Take the case of Erma Faye Stewart, a single African-American mother of two who was arrested at age 30 in a drug sweep in Hearne, Tex., in 2000. In jail, with no one to care for her two young children, she began to panic. Though she maintained her innocence, her court-appointed lawyer told her to plead guilty, since the prosecutor offered probation. Ms. Stewart spent a month in jail, and then relented to a plea. She was sentenced to 10 years’ probation and ordered to pay a $1,000 fine. Then her real punishment began: upon her release, Ms. Stewart was saddled with a felony record; she was destitute, barred from food stamps and evicted from public housing. Once they were homeless, Ms. Stewart’s children were taken away and placed in foster care. In the end, she lost everything even though she took the deal.

Too many lawyers toss aside their client’s misgivings about their plea bargains. “Yet another example of my client’s bad decision making,” they may tell themselves. These lawyers need to remember that unlike their clients, they themselves have never had to live with the consequences of a plea bargain. Probation is no “bargain” if the client cannot or will not jump through the many hoops that come with it. A plea for a short prison term might end up doubling or tripling the client’s next prison term; lawyers may be selling a life sentence on an installment plan. Millions of defendants and their lawyers continue to cooperate with mass incarceration by surrendering their rights, but this amiable cooperation has lead to record numbers of people serving record numbers of years in prison. This tells me that most defense lawyers have been very, very wrong about whether plea bargains are worth taking.

As Ms. Alexander’s article points out, not every defendant needs to go to trial for sparks and flames to fly from the joints of the mass incarceration machine; I believe that the system is so underfunded that defense lawyers could collapse it simply by providing their clients the information and confidence to make their own informed choice and then honoring that choice. What could possibly be controversial or unethical about that?

Many of my peers continue to wring their hands and fret at the idea of making social change through individual representation. “If the police are running amok and if the laws are unjust, then they must be reformed and rebuilt,” these lawyers might say. These lawyers, like Cicero in the days of the old Roman republic, believe that appeals to mercy, decency, and reason will bring out the best in their fellow citizens; justice and reform are just one long dialogue away. But I believe that every institution works they way it does because someone benefits from the status quo, and that someone is most likely in power and will resist any efforts at change. Stabbing the monster in its one weak spot and starving it of resources remains the best tactic; this is why generations of new public defenders continue to ask, what would happen if every client who wanted a trial got one?

Respectfully Submitted,

Norm DeGuerre

The Thin Blue Curtain

Dozens of cars whooshed over my head every second; I first heard the engine, followed by thunks of axles bumping over seams in the freeway, and then the air as it tried in vain to catch up in their wake. The lamps fifty feet above the cars were the only light sources; only a little of it snuck past the overpass and made the journey down to where I sat, in a police car, beneath the highway. I was left sitting in a memory of light, like the image that remained when you finally turn off an old television that had been on for too long.

This light left too many shadows. The nearby shipping depots and body shops had long since become “mixed use” developments, which meant they were only used for discussion during city council meetings. They loomed like sad bamboo around the Hotel Antillia – squeezing it against the two-lane road that ran along the freeway above.

Officer Timmons turned on the spotlight mounted to the side of his police car as he pulled into the hotel’s horseshoe parking lot and shined it on the single-story rows of hotel rooms ran along either side. Each room had a front door that opened into the attached carport, swallowing the doors and cars underneath in shadow until the spotlight punched through. The spotlight darted from car window, to front door, to the lone window allotted to each room, and then on to the next room.

This was not the first hotel parking lot that we had roamed that evening – we were looking for anyone who had left their room to smoke, or talk to other guests, or sit in their car. Officer Timmons was free to chat with anyone he saw in public, and if that person happened to be high, getting high, holding an open container, or on probation or parole, Officer Timmons would then further intervene into their evening.

“Outstanding.” I heard Officer Timmons as he braked to the right of a red Corolla in one of the hotel’s parking spaces. No need to undo the seatbelt – Officer Timmons had been in and out of his car so often that night he no longer bothered to fasten it. I peered through the passenger window in hopes of seeing what Officer Timmons had spotted in a matter of split-seconds; a woman’s head shot up from the driver’s lap just as the driver tried to sink lower behind the back of his seat.

“Let me guess, it’s not what it looks like,” Officer Timmons said as the driver blinked in confusion at the officer’s flashlight. Both he and his passenger handed over their IDs without being asked. Officer Timmons read each card as the driver spilled the entire saga of how he and his lady friend wound up in that parking lot.

I rolled down my window just a bit, and pressed my ear to the crack.

“You see, officer, I know that this isn’t the right place to be doing this, but she’s married with two kids, and my room wasn’t free because me and two other guys chipped in to pay the $54 it cost to rent a room and they got back early, and there really wasn’t anywhere we could go, and no one was around, and besides, I have every right to be here because it’s a public parking lot.”

“Yes sir, that’s the problem, you’re doing this in a public parking lot,” Officer Timmons said, the threads of his patience holding steadfast.

Meanwhile, the dispatcher chirped over the car radio and into Officer Timmons’ earpiece. No wants, no warrants, and neither party was on probation.

“Alright, I’m going to be back in a half hour to see if you two are still out here. Take what you’re doing inside, or I’ll take you in,” Officer Timmons warned before returning their IDs. “I can’t have you out here making yourselves targets for whoever might want to jack [rob] you while you two are distracted.” He slid back into the police car and continued his inspection of the Antillia parking lot; the two men who had been chatting across the lot through their respective windows had long since closed their curtains.

My night with the Sequoia Meadow Police Department followed much the same pattern. Officer Timmons had no sergeant or commanding officer dictating where he should patrol, and so he spent the time between calls roaming secluded, poorly lit public spaces. We rolled through the Honduran neighborhood to let the local gangs know that the SMPD was out and about. We shined spotlights into empty parking garages and parks that closed to the public at sunset. We visited the boarded-up meth house across from the union hall, whose tenants had scattered after one of them hanged himself inside. We also found the time to swing by the homes in the hills with three-car garages because, according to Officer Timmons, several of the owners had complained that they don’t “feel safe” without a “visible police presence.”

At around 1:00 a.m., Officer Timmons drove toward the entrance to the SMPD’s parking lot in order to drop me off before his lunch break. On one side were the steel skeletons of new, “affordable” $800,000 2-bedroom condos. On the other side, the gray glass façade of a large investment firm; signs and arrows guided drivers to the designated limousine parking. Officer Timmons wished me a good night and dropped me off at my car. He pulled away and went to grab lunch, which at that time of night was going to come from either a convenience store or a drive-through.

I nearly missed my exit home while driving back from Sequoia Meadow; I had gotten lost in thought. In 7 hours, Officer Timmons would finish his shift and begin his hour-long commute to the home where he and his family could actually afford to live on a police officer’s salary. Officer Timmons will have spent the remainder of his shift continuing to roam the semi-secluded public spaces of the city, looking for people who lack the privacy and/or good sense to indulge their vices indoors. If their crimes are serious enough, Officer Timmons will arrest them; otherwise, he will shoo them away back into the shadows for their own safety. This will also save Officer Timmons from having to drive back to Sequoia Meadow on one of his days off to testify in court.

“The system is broken,” Officer Timmons had told me as we filled his tank with gas at the beginning of our ride-along. I had nodded politely, assuming that his reasons for thinking that would be completely opposed to my own. But as the evening unfurled, I learned that our opinions overlapped to a surprising degree. Jails and prisons take first-offenders and hardens them by subjecting them to an environment of constant fear. The defendants who go in hardened become permanently lost. Those who avoid jail are simply ignored like a cigarette butt on the sidewalk; dopers and hookers are cited, released, rearrested when they fail to come to court, and then re-released, and then they go right back to old habits once they serve their time.

Officer Timmons has to figure out whether the psychotic homeless man is off his meds, on the right meds, or on enough meds and if he guesses incorrectly, the doctors release him to go right back to exposing himself before Officer Timmons’ shift ends. Sometimes, Officer Timmons finds a man leaning against the side of a building, too drunk to stand but awake enough to almost answer his questions. This man would be too drunk to safely book into the jail but unless Officer Timmons can prove the man’s identity, he cannot take him to the “drunk tank” to sober up. The last option is to call for first responders. But then Officer Timmons has to decide how urgent the situation is before calling it in; a “Code 1″ (lowest priority) is unlikely to get any response at all, while a “Code 3″ was reserved for life threatening emergencies.

These stories came back to me during my drive home. Officer Timmons represents the boundary between the have-nots and have-mores. Sequoia Meadow’s criminal class invited police intervention solely because they lacked the private space to commit their crimes away from prying eyes. In a matter of seconds, Officer Timmons must decide whether he has a legal basis for intruding into someone’s evening. Once he does, he then has to balance what is necessary to keep the city looking safe to the well-heeled residents while rationing the few crumbs-worth of public resources at his disposal. He has only three options to choose from; jailing someone temporarily removes their unsightly activities from public view, but often makes a bad person worse before releasing them back into the world. Calling upon other public resources, such as hospitals or firefighters, cost a tremendous amount of time and money. Sadly, the most efficient solution is to shoo the problem back into the shadows so that the citizens of Sequoia Meadow can tell themselves that it isn’t there. Afterward, Officer Timmons leaves the city to return to where he can actually afford to live.

Making people feel safe without making things better: this is what Officer Timmons meant when he said that the “system is broken.” Despite everything I had seen, I never quite appreciated just how bad things really are.

Respectfully Submitted,

Norm DeGuerre

Grandma, Should I Plea? (A Largely True Story)

“I have an idea – humor me on this.”

I would never have imagined saying these words to a client on the eve of trial. We were in court for a last-minute settlement conference. The jury panel would show up the next day. My client was about to make the most important decision of his life.

I showed my client a quarter that I had pulled from my pocket: “Heads you go to trial, tails you take the deal and go home today.”

My client’s grandmother sat in the first row of the courtroom. She clearly wanted to see what I was going to do next and she did not look at all alarmed at the proposition I had just made her grandson. Meanwhile, the district attorney paced in the back of the courtroom with his cell phone against his ear, trying to postpone a fundraiser for his upcoming political campaign.

Before we had come back into the courtroom, while we were in the courtroom’s attached holding cell, my client had asked me if he could ask his grandma her opinion on whether he should take the district attorney’s plea bargain or go to trial. I told him that he could, and I offered to tell the DA to do his campaigning outside the courtroom. “Fuck it, I ain’t got anything to hide. I didn’t do this and he can hear me say it.” I considered that a knowing and intelligent waiver of attorney client privilege.

My client’s resolve liquified – more than a little – after discussing his options with his grandma across the courtroom guard rail.

My client expressly asked me to share my impressions of his case with his grandma, so I gave them to her. She understood that my client was so drunk on the night of the incident that he had no idea that his friend was going to pull a knife, or that he was going to stick it in the chest of his sister’s ex-boyfriend who happened to be at that same party. She knew that he fled the scene only because he was afraid that the other people at the party were going to come after him for what his friend had done, and besides, the stabber was also my client’s ride to the party. She understood that her grandson had not heard his friend call out the name of his gang before sticking his knife between the victim’s ribs.

She also knew what the DA was going to argue: the red belt my client had worn in high school, the picture of him beneath a flag depicting a gang-related symbol that he used for his Tinder profile, and the red shoelaces on his Nike Cortez shoes proved that he and his friend were members of the same semi-organized criminal gang, and that they orchestrated this stabbing specifically to spread fear of their gang. She didn’t need me to tell her the tilted ratio of frightened white people swimming in our local jury pool, or that these same white people might believe the DA’s outlandish theory. If the gang enhancement were to be found true on top of the assault charges, my client would spend the next 24 years in prison. The only bright side would be that at his age, my client would be released by the time he was 42, with not an insignificant amount of life left to live.

I explained to the grandma that my client had one key that would let him go home; if he pled to just one of the several violent felonies he was accused of and admitted that he did it “for the benefit of a criminal street gang,” he would be released that day. The catch was that my client would be on gang probation for 5 years, and that gang P.O.s carried side arms and pat-searched the probationer and anyone in the home whenever they came for their unannounced visits. If they found any reason to violate his probation, he could wind up serving those 24 years anyway.

He was hopelessly torn, so I suggested the coin flip.

I tossed the coin into the air. It spun. I caught it as it fell. I slapped it against the top of my left hand. I failed to notice that the DA had hung up the phone and was no longer talking. I began to lift my fingers, as though I was about to pull away my hand and show the coin face underneath, but I did not pull my hand away.

“Now admit it – there is one side that you want to see more than the other.”

My client pulled in his lower lip, and nodded. “I want a trial,” he said. I kept eye contact with him while putting the quarter back in my pocket.

“You’re not going to show me what it was?” My client asked.

“No. Why does it matter? We were never going to decide this with a coin flip.”

My client sighed, straightened his back, and nodded his head again. His grandmother beamed with pride while her hands still clutched the guard rail in fear. Both thanked me for helping with his decision.

I had gotten the coin flip idea from an old episode of Frasier – I doubt that they would have wanted to know that.

Now, if you readers are wondering what happened in this case, whether he won or lost, I ask you whether that matters, and whether a decision that important should be determined by win or loss.

Respectfully Submitted,

Norm

Let Me Tell You About my Morning…

When you ride as a passenger in someone’s car, does the driver then get access, dominion, or control over your anus? I thought the obvious answer was “no, are you kidding me?” This week, I tried — and failed — to convince a judge to share this point of view.

My client stood accused of possessing a controlled substance with intent to sell. This whole thing started 9 years ago when my client injured his back on a construction site at the age of 16. When the prescription opiates ran out–which was right around the same time my client’s various doctors realized that each had been writing him separate prescriptions–he turned to buying them from other people. Codefendant was one of these folks. Eventually, both of them realized that heroin provides the same high and was much, much cheaper and easier to get than the prescription pills.

Client and Codefendant drove from their homes in Santa Asphalt to Stucco Valley to visit their dealer. My client left with 2 grams of heroin, which he stowed in his sunglasses case. Codefendant left with 20 individually-wrapped one gram servings of heroin stuffed into his rectum.

Unfortunately for these two, the Stucco Valley Police Department had been watching the comings and goings from their dealer’s house. They watched my client pull away from the curb and waited for him to (inevitably) roll slowly through the stop sign at the nearby intersection. A routine traffic stop turned into an arrest and search. Client and Codefendant were handcuffed, and placed in the back of the patrol car. Once inside, Codefendant tried to discreetly remove his contraband by planting his feet against the cage that separated him from the front of the police car, arching his back until his face pressed against the rear window, and grunting as he tried to slip two hands in handcuffs into the rear of his pants.

The cops noticed, became curious, and conducted a more thorough search.

This client became my client after his probable cause hearing, during which a narcotics investigator testified that the codefendant had too much dope to be consistent with personal use and that it was more likely for sale or resale. After the hearing, the District Attorney charged both Codefendant and my client with possessing the heroin with intent to sell. My client was accused of possessing all of the dope, including the codefendant’s.

I didn’t have much of a defense for my client regarding the amount found in the sunglasses case. However, I thought I had a pretty decent argument that my client did not possess the amount found inside the codefendant.

I hoped to save my client from having to go to jury trial by filing a motion to dismiss (aka a “nine-nine-five”). In this type of motion, the judge assumes that all the information that came out during the probable cause hearing is true. The defense lawyer then argues that even accepting the truth of the evidence, it does not provide probable cause for the charges.

My “opposing counsel” was actually a 3rd year law student; her supervising attorney had obviously believed that this argument was an easy enough “win” to hand to someone who had neither studied for nor passed the bar examination. I really hoped they weren’t correct–not on this case.

“Opposing counsel claims that this court must draw all reasonable inferences in favor of the charges,” I said during oral argument on the motion to dismiss. “Let’s start by reminding ourselves of what the word ‘inference’ means. An inference is a statement that has not been expressly proven, but whose truth is guaranteed based on other truths. We must also remind ourselves of the legal definition of ‘possession.’ According to case law, a person can possess something without it being on his person. However, the defendant must have more than ‘mere access’ to the location where drugs are found; the prosecution must also prove that he had the right of dominion and control over the area where they were found.”

“Now, the prosecution has conclusively proven that the codefendant received a ride from my client, and that at the time of this ride, Codefendant had 20 individually wrapped bindles of heroin stowed away in his body. However the District Attorney asks this court to infer – from his role as the driver – that my client not only had access to the codefendant’s anus, but the right to dominion or control over it. These ‘inferences’ cannot be guaranteed from these facts; I submit that the District Attorney’s theory is wholly unmoored from the facts and we respectfully request that the court dismiss the charges.”

The court denied my motion.

I can only imagine what the jurors will make of this case when it goes to trial.

Respectfully submitted,

Norm

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