“Staying Billable,” or “Norm Reviews: The Six-Minute Solution”

Saint Asphalt, my county’s namesake, lived in what is now Eastern Luxembourg in the 15th century. She was known for her extreme compassion for the poor and her miraculous efforts on their behalf are what eventually led to her sainthood. Saint Asphalt would take a person’s problem, dig a hole in the ground, put the problem in the hole, and then cover it all up with bits of rock and dirt. Miraculously, the problem ceased to exist. So many of her followers came to her for help that eventually the small city she lived in turned into a hardened shell, with absolutely no problems. No problems whatsoever.

In this post, I would like to speak a little about anxiety. I know that my writing has been a little lean for the past year or so. That is because I have been on a “rest assignment” rather than an exciting “trial tour.” My office regularly rotates attorneys through assignments to help them avoid burnout. While I enjoyed the lower stress and regular office hours, finding interesting material to write about was quite a challenge. I found myself using the new lifestyle to gain some perspective on my inner being as I continued to adjust to life as a family-man.

I decided to use my “rest” time for some internal renovation; I resolved to deal once and for all with the anxiety that would sometimes paralyze me at work.

“Well of course you’re anxious; you have an incredibly stressful job!” This is what well-meaning colleagues told me when I worked up the courage to confide.  So I would stop talking and leave the topic to smolder like a dumpster fire. I replayed their chipper explanation in my head as, “My feelings are normal. Why should I think I’m entitled to feel anything other than terrible all the time?” Which then turned into, “I have to stop feeling this way. My feelings bore people. ” Which turned into, “My feelings are a weakness, and I’d better keep them hidden.” Which invariably turned into, “My feelings are literally Hitler right now.” It wasn’t until I began paying a professional by-the-hour, twice-per-week that I actually told someone what I meant by anxiety. While it’s true that my job is indeed stressful, when I stayed too long at this shallow interpretation, I found that I lost intimacy with my deeper feelings, with what was really going on inside of me.

Let me illustrate by telling you about one focus point around which my anxiety would swirl: the red blinking light on my desk phone that warned of a new voicemail. I hated checking my voicemail. One red blinking light was an angry message from a client who was mad at me because I was too busy being in trial to visit him at the jail. Another red blinking light would be from the family of the client whose trial I had just finished, and I would have to deliver the message framed as “happy news” that their son would be out before they turned 70. Another blinking red light would be from the DA, and she would have more bad news for me or for someone else that I would have to deliver.

One constructive way to deal with this issue would be to check the voicemail right away, make the return phone call or calls first thing in the morning and just be done with it. That’s not exactly what I did. I tended to wait for when I would have adequate emotional space to handle such difficult conversations, and then make the return calls at that time. Of course, what ended up happening was that the damn blinking red light of doom would menace me all day until it was time to go home, where I knew it was still blinking, waiting for me first thing in the morning.

Then there were the piles of files on my desk. There was never any time to open a calendar and triage the most important and urgent tasks first; everything is important and everything should have been done yesterday! So I grabbed the nearest thing and worked on it until I could, in a better conscience, stuff it away in a drawer so that I would not have to look at it any more. I repeated this until about midday when my mind would start to wander to something, anything else. I would take a short break to regroup, end up by distracting myself for far too long, then after my hurried snap-to, I continued to shuffle the remaining piles as quickly as possible until it was time to go home. I left work with a crushing sense of defeat and dread for the next day. I tried to avoid talking to anyone that I didn’t have to. I worried that if I spoke to anyone for too long, they would find out. They would find out that I was a terrible, terrible fraud. That I was a scarecrow held together by duct tape into a surprisingly passable resemblance of a good lawyer and functioning person. And O! The shame! Such shame behind that mask of adequate functionality!

I speak glibly about this now. It took me a few months of speaking to a professional to realize that I was the one doing this to myself. Not my clients, not opposing counsel, not the blinking red light of doom; it was me making myself miserable.

Tolstoy famously said that happy families are happy for the same reasons, while each unhappy family is miserable in its own unique way. From my reading, I learned that the psychologist, John Gottman, proved less-famously that the opposite is true; happiness allows for unique and individualized relationships between people, while misery makes our interactions more rigid and thus more predictable. The widespread misery of lawyers is noted in legal circles with an almost blasé boredom; every few weeks a new story appears about how lawyers have the highest rates of suicide, divorce, and substance abuse of any group of professionals. The state bar’s required 1.5 hours of education on the topic has done little to stem that tide.

I believe that lawyers’ collective unhappiness splinters off into a handful of predictable flavors. Mine has been anxiety, and so this led me to pick up Scott Rogers’ book “The Six-Minute Solution” in recent weeks; Mr. Rogers’ primer on “mindfulness for lawyers” has quite a few good things to offer, but also accidently reveals a surprising amount about the collective state of unhappiness among anxious lawyers.

Mindfulness has become vogue enough to where law schools now offer courses on it. “The Six-Minute Solution” presents mindfulness as a blend of Eastern meditative practice and cognitive-behavioral therapy. The lynchpin of mindfulness is sitting in stillness and quiet. Thoughts will inevitably float through your bubble; Rogers anticipates that many of these thoughts will be about the seemingly more productive things that you should be doing (finger wag) instead of sitting still doing nothing. However, the anxious lawyer returns to stillness by recognizing this guilty notion as a thought, nothing more, no more important than any of the many thousands of thoughts that pass uninvited through one’s head every day.

Rogers warns us that the mind will not readily slip away and leave us in our calm silence. By observing our anxious thoughts as mere thoughts, we then wander into deeper, less transient thoughts: thoughts about ourselves as people that give rise to the scolding surface thoughts that come during the first few moments of stillness. Rogers borrows a term from cognitive behavioral therapy and calls these automatic thoughts. Automatic thoughts are thoughts we have about ourselves; many of them are negative, and most of them are the result of repeated patterns of interactions that we have had with others. These thoughts come so quick that sometimes we don’t perceive them as a thought, more of an internalized self-projection we assume is true. I’m not good enough/smart enough for this job. Everyone else has their shit together except for me. I’m a fraud and everyone will find out sooner or later. According to Rogers, repeated mindfulness practice can lead to serious examination and confrontation with these destructive automatic thoughts, and that process begins by seeing them, experiencing them, and recognizing them as mere thoughts, and nothing more.

Rogers’ book is one of many available on the topic of mindfulness, but is one of the few directed specifically at lawyers. Rogers makes several stylistic choices that arguably reveals more about his audience than it does about his subject matter.

Rogers presents mindfulness concepts in one–and only one–format. First, a mindfulness concept or meditative practice is presented in reference to some sort of legal principle or concept (presumably to make it memorable for the reader). Second, the concept is presented. Third, Rogers presents references to scientific journals to prove the long-term effectiveness of mindfulness techniques. These three steps repeat once per page, and all but a couple of concepts require more than one page.

If we assume that this is an effective method for reaching his audience, what does it say about his audience? How skeptical must his audience be to need reassurance on each and every page that neuroscientists have given these concepts appropriate levels of peer-reviewed scrutiny and, thankfully, can reassure us that they aren’t snake oil? Personally, I have found lawyers, in general, to be a very skeptical group of people. I myself see no problem with skepticism, but I know–don’t ask me how I know this–that skepticism slides easily into cynicism and distrust. Lawyers, as a group, show profound distrust of any self-care technique that doesn’t involve booze or Crossfit-levels of pain. In this regard, I think that Rogers understands his audience.

I did find curious his frequent reliance on legal concepts that I haven’t had to use since law school. For example, Rogers offers one particular meditative practice that involves specific patterns of breathing and hand placement that he calls “The Learned Hand” technique. Who was Learned Hand? In law school, every lawyer is taught that the Honorable Learned Hand was a very smart, very important judge who wrote very smart things about…well, like 99% of lawyers, I haven’t the foggiest idea of what Learned Hand was actually famous for. But like many of the legal concepts that Rogers uses to introduce his mindfulness techniques, the phrase “Learned Hand” takes the reader back to law school more than anything else. Is Rogers really relying on these tired law school tropes to teach his concepts, or is he trying to take the reader back to a time in his life when being a lawyer was a dream and a goal, rather than a source of pain?

I do have but one grievance with Rogers’ book. The main obstacle to lawyers caring for their own well-being is the myth that they just don’t have time to care for their own well-being, especially when they’re at work. Rogers gives quiet support to this myth by reassuring the reader of just how little time his techniques require. He does this as early as the title of the book; six minutes is equal to 0.1 hours, and it’s the minimum unit in which a lawyer bills a client for her time. Surely this is not coincidental; Rogers reassures his reader that his techniques will only consume the absolute minimal amount of time that is worth anything at all to a lawyer. I believe this phrasing gives tacit support to the idea that a lawyer is only worth his or her billable time. Rogers even reassures his reader that she can practice certain mindfulness breathing exercises while talking to a client or while in court! It is certainly efficient to be able to bill a client for the time that you spend taping your sanity back together, and I believe Rogers’ encouragement of this behavior somewhat undercuts his message.

While “The Six-Minute Solution” is an approachable, easily digestible introduction to mindfulness, overcoming anxiety takes far more time than it will take the reader to finish this book and the 0.1 hours per day putting it into practice. My suggestion, if you’re looking for mindfulness resources, is to start with Rogers, and then keep going. For the first time in many years, I finally feel as though I’ve gotten my head above water and I gave a lot more attention to my self-care than six minutes per day.

So what did I finally do to overcome my anxiety? Well, like I said before, I started seeing a therapist. Hmmm. Yes, I see. I found a form of exercise I enjoyed. En garde! I cleaned out all the clutter in my office once and for all. Does this old file on my desk spark joy? And I make a list every Friday afternoon with the tasks I have to do for the following week. Interview rooms at the jail full? On to the next task! I’m also more sensitive to things that contributed to my anxiety and I’m proactive about dealing with them. This box of paper transcripts I keep kicking under my desk will upload or die! Now, I find that I have plenty of time to plan and organize, and no time to waste on anxious worry.

Do any other lawyers out there relate? What helped you? I would love to hear more ways to overcome anxiety in the comments.

Respectfully Submitted,

Norm DeGuerre

 

Sworn to Silence

The public defender who hired me warned that most of our attempts to help our clients will fail, despite our very best efforts. But she went on to say that even when all of our efforts fall short, a defendant’s public defender can and must always be the client’s voice in the courtroom; even as all the grinding parts of the machine line up against the accused, his or her public defender will always stand beside them and insist, with intelligence and passion, that the person on the receiving end has wants, needs, and interests that must be heard.

This is a story of how I may have failed to be a voice for a uniquely vulnerable client. Let’s call her Letty.

Letty ran away from her parents’ home in Dingy Suburb two weeks after her 18th birthday. Unfortunately, Letty had a less-than chivalrous boyfriend with a pitiful attempt at a moustache (let’s call him Dirt Lip). Dirt Lip promised Letty that they would “make it” on their own with the help of an older friend who lived two-hours away in Big City.

Dirt Lip’s “older friend” was a heavily-tattooed East Coast gang member who had decided to seek his fortune –and meth– out West. Older Friend explained to the young couple that he “looked after” three other girls. By “looked after,” he meant that he kept them stocked with crystal meth, reminded them of the number of Johns they had to service to pay him back for the dope, and handled their money for them to ensure that he was compensated for the hotel rooms, the drugs, and his time as their “security.” Dirt Lip assured Letty that this was nothing at all like pimping, and pointed out that unless they could find some way to pay the older friend back for the hotel room that he had booked for them –without asking first– Letty might have to follow the girls’ lead and make some quick cash.

Thankfully for Letty, Older Friend’s taillight failed to come on as he drove her and Dirt Lip back to their hotel. Before the highway patrolman could even begin to open his book of tickets, Letty blurted out as much of her story as he could to the surprised officer before he told everyone to be quiet and get out of the car. The officer quickly noticed that everyone was high, arrested them, and found Older Friend’s half-ounce of crystal behind the driver’s seat.

Per local custom, our district attorney decided to accuse everyone in the car of possessing the meth with intent to sell or distribute. Dirt Lip was a juvenile, so he never found his way into my courtroom; Older Friend hired a real lawyer, and Letty came to me.

The courtroom stood mostly empty when I arrived for our pre-trial hearing; I was the first lawyer there. Letty sat handcuffed in the jury box, swimming in her ill-fitting orange jail uniform. I began with my well-rehearsed “Trust Me Quickly” routine: handshake, business card, assurances that I am, in fact, a real lawyer, explanations of the charges, and our reasons for being in court that day. Letty responses ranged from “yeahs” to nods without eye-contact; I wasn’t entirely sure that she understood everything or cared about the parts that she did understand.

The DA and Older Friend’s lawyer came in together  before I could begin discussing her options for going forward. Older Friend’s lawyer was laughing at his own joke and he was wearing a tie with golf balls on it. The DA looked to me from across the room, pointed his thumb out the courtroom door, and mouthed something that I took to be “can we talk outside?”

I winced. Even if I included the squirrels fighting over dropped french fries on the sidewalk outside the courthouse, this DA was not my favorite mammal in the area. I promised my client that I would let her know everything that happened outside upon my return. I followed the DA outside.

“So I’ve decided to add pimping and human trafficking charges against the codefendant.”

“I can certainly see why,” I replied. Normally at this point in the conversation, this DA would have threatened to add extra charges against my client if she decided not to plea guilty to something. So I waited to hear what was coming next.

“I’d like your client to testify against him.”

“That can’t happen so long as you’re accusing her of possessing her pimp’s crystal meth,” I said in the blandest tone possible. Despite my attempt to balance diplomacy with candor, the DA still sucked in his lip like he had done whenever a defense lawyer offended him.

“If she testifies today, I won’t object to her being released from custody without bail before her next court date.”

“And…?”

“And I’ll ask my supervisor whether we can reduce her charge to simple possession.”

I’ll ask my supervisor is easily my least favorite phrase that prosecutors give me. The ABA’s model ethics rules assure us that the individual prosecutor is the one who wields the power to decide what charges the state levies at a person; this allows the individual prosecutor to  tailor a just outcome. But individual DAs work for an elected District Attorney, and that elected District Attorney has tough-on-crime campaigns to run. To ensure that no individual prosecutor does something to undermine this stance, he or she must get approval from their supervisors to ensure that their individual actions harmonize with the administration’s marching orders.

“So…you want my client to waive her 5th Amendment rights and testify without any actual promises in return?”

The DA sucked his lip again. “Well, if she doesn’t I’m going to add misdemeanor prostitution charges against her after the hearing.” Here was the threat I was waiting for! On a side note, I have met many men who manage to have successful careers despite a complete lack of people skills, obliviousness to the norms of common courtesy, and deafness to the human consequences that their seemingly-mundane decisions have on others; many titans of the tech world thrive despite and because of these deficits. But during this conversation, I felt a pang of rage at the fact that a person can miss the sick irony of charging someone you believe to be a victim of human trafficking with prostitution and still thrive as a prosecutor. I assured the DA, in my blandest Swiss diplomat tone, that I would convey his “offer” to my client.

I sat beside my client again and resisted my urge to tell her which part of the human body best exemplified our prosecutor. Her eyes widened with fear at the prospect of testifying against her codefendant, but they shone when I mentioned the pre-trial release. “I get to go home today?”

“Hold on, please. It’s not that simple,” I warned, but I feared that I was too late. Her hungry look reminded me of a talk that I had attended some months before, where a doctor told me that the brain chemistry of a person withdrawing from methamphetamine is nearly identical to that of a person who has become delirious from starvation. The DA isn’t actually promising you anything, I told her, and that since the evidence against her was so weak, she should continue to fight the charges against her. If her cooperation is so valuable to the prosecution, she should not give up any of her rights without something equally valuable in return; a promise by the DA to “talk to his supervisor” did not strike me as equally valuable.

I tried so, so hard to persuade without bullying. But I did insist, multiple times, that going along with the DA was not actually in her best interest. When she finally agreed to go forward with the day’s hearing and fight the charges, her shoulders slumped in seeming defeat….and I feared that at that moment, I had become the bully that I thought I was protecting her from.

But I had no time to backtrack; the judge was going to take the bench any minute and I could not afford to have her rescind what I thought was the wiser decision, even if she made it for the wrong reasons. The DA flushed when I told him that my client had decided not to help him.

“All rise.”

Today’s judge left his chambers and took the bench. He called our case and asked whether all three of the lawyers were ready to proceed. The DA then called his first witness.

My client. He called my client as his first witness.

“You honor,” the DA intoned with as much solemnity as he could muster, “We will be asking the court to grant her immunity for the testimony that she is about to give today.” Normally, immunity is a gift; in exchange for testimony, the defendant is granted immunity from having any of that testimony used against her. She would also be immune to any new evidence that law enforcement discovered thanks to her testimony. However, it did not feel like a gift; the DA couldn’t get what he wanted by persuasion or bargaining, so he was going to take it from her.

My client turned to me as though someone had asked her in classical Arabic to perform surgery. “What am I supposed to do?!”

“Nothing bad is going to happen to you,” I whispered, just loudly enough for the other lawyers to hear. “The DA’s deciding he’s going to steal what he wants from you since you’re not willing to just give it to him for free. We’ll go up together, and all you have to do is answer the questions honestly.” I then leaned in closer and lowered my voice to an actual whisper. “Just don’t blurt out anything about anything illegal you did beyond this case.”

I kept pace with my client as she shuffled up to the witness stand. I pulled her chair out for her and sat next to her. I had never sat in a witness stand before; the courtroom looked less like a solemn chamber of justice and more like a big, cluttered, dreary office cubicle. The judge had too many windows open on his computer screen and struggled to find the one that would show him the court reporter’s transcript in real time. The court clerk had bins of paper clips, a half dozen family photos, and a carpet of post-it notes across the surface of her desk; her potted vine seemed oddly perky given its steady diet of fluorescent light. The codefendant’s Real Lawyer scratched his chin very seriously and wrote illegible things on his legal pad even when no one was saying anything. The DA shuffled some things at his desk and began.

Stone by stone, the DA elicited the walkway of sorrows that had brought my client into her current circumstance. However, the DA seemed utterly incapable of asking a non-leading question. “And so Mr. [Older Friend] brought you drugs?” “And later that day your boyfriend made an ad for you on Craigslist?” Being in the witness stand, I was a mere advisor and spectator and could not object to his line of questioning. As my client muttered “yes” to each question, I found myself wondering why exactly his questions angered me so. Was it the sloppy in-court technique? Was I feeling a hyper-competitive urge to shut down my opponent with objections? Was I just irrationally angry at the way the DA’s eyes narrowed at the end of every question, as though he was trying to spot lies in my client’s one-word answers?

Though I would have answered “yes” to all of these questions, the biggest reason came together during our closing arguments after the hearing. “Your honor, I question whether Mr. DeGuerre’s client is telling us the whole truth,” the DA mused as he began to argue why the judge should use her testimony to believe that codefendant was a pimp, but to disbelieve that she had no power or control over the Older Friend’s dope. My client had spent the past hour-and-a-half agreeing to all of the words that the DA had put into her mouth, and he had the unfiltered gall to challenge whether she had told the truth?!

What I realized hit me hard; at no time that morning did my client have her story or wishes spoken out loud. I had assumed that Letty’s first desire was to do whatever it took to free herself from pre-trial custody and blaze another pipe full of crystal, and I had insisted that her rights (in the abstract) were more valuable than the chance to get high sooner. She grudgingly adopted this view long enough for me to it repeat for the DA as my client’s stated position. I don’t necessarily regret having done this, but to this day I do not feel good about it. And then when she did get the chance to testify, she spent her entire time on the witness stand agreeing out loud to another man’s words.

Thankfully, the judge found that the DA did not have enough evidence against my client and set her free; my advice was thankfully in her short-term best interest as well. But if he had decided that the state had presented enough evidence to warrant a jury trial, my client would have sat in custody for months. If I knew with a clean conscience that this is what my client preferred, I wouldn’t waste a second thought. But to this day, no one really knows what Letty wanted because she never really got to tell anybody. From her history of drug use and evident desperation, I assumed that she would have said, “I’ll do whatever lets me open my own jail cell as quickly as possible.” Past experience tells me that when clients with drug histories do whatever gets them them out of jail faster, they inevitably return; they often relapse and either miss court dates or violate the terms of their probation. They end up picking up new charges and, in their renewed desperation, take even worse deals to get out faster. In order to talk someone out of this, I have to assume that the abstract notion of “rights” have actual value, and that this abstraction is more valid than the actual, tangible need to get free and make the withdrawals go away. But is this true? What am I supposed to do when my client’s voice is at odds with her best interest? If that day’s hearing had turned out differently, the abstract notion of “rights” would have meant very little to the real person fighting the shakes in a real jail cell.

Respectfully Submitted,

Norm DeGuerre

Triage

(More short fiction)

 

From his seat in courtroom 110, the Honorable Quentin Castro felt thousands of tiny fingers around his neck. If he took both hands away from his pen, away from his files, away from his notes and made a show of kneading an imaginary knot, the feeling went away long enough for his pulse to drop down back to normal. This trick had worked for most of the morning, but at 11:35 a.m. Quentin Castro could not pretend anymore.

“Mr. Andrade,” the judge told the defendant who had been rambling about not being able to make his urine test because he lost his bus pass, “let’s just pretend that losing your bus pass is actually a good reason to not give a sample to your probation officer…”

Quentin saw Denise Rothbach, Mr. Andrade’s public defender, raise her hand as though to speak, and then thought better of it.

“…If I were to order you to submit to testing today, right after court, would you test clean or dirty.”

Ms. Rothbach leaned toward her client and said “Don’t lie” just loud enough to be picked up by the microphone at counsel table.

“Dirty, sir.”

Judge Castro rubbed the back of his head with all ten knuckles. “Thank you, sir, for being honest with me. You’ve been coming to reviews in my court for about…four years now? I’m glad you know better than to feed me a line of b.s. Your next review is in 6 weeks, and I want no dirty tests after today’s. Am I clear?”

“Yes your honor” from both lawyer and her client.

Judge Ana Cordova held the door open behind her as she slipped into the back of the courtroom. In that damned pencil skirt.

“Just to let counsel know, I am not feeling very well right now.” Quentin had a knack for professional understatement. “It is very likely that Judge Zuniga will be handling my afternoon calendar in courtroom 92. Thank you.” Quentin left the bench as quickly as would not be noticed and closed the door to his chambers behind him. He heard the social workers and probation officers wish him better from back In the courtroom.

He pulled the chain to the light in his chambers’ tiny washroom. At least I don’t look like I’m dying he thought to himself. Up until 5 days ago, the years had been extraordinarily kind to Quentin Castro. Aging had done little to his looks except to dust his hair with salt-and-pepper. He was no longer the leanest or least sweaty man at his club, but he had always taken care of himself.

“Inoperable,” had been his doctor’s word, and Judge Castro repeated it into the mirror. He reminded himself that there was no way he would actually be feeling the cancer interlacing with his blood vessels, the way his doctor had said it was doing. He had dreamt about feeling it in last night’s nightmare, and now he was feeling it while awake.

I guess it’s time to tell Ana. Fortunately, Quentin decided this just as Ana walked into his chambers without knocking. She stared without blinking into Quentin’s reflection in the mirror. “Is this really the only way to talk to you now? Do I have to chase you down after court like some … groupie?”

Ana squared off with Quentin at the entrance to the washroom. The hurt in her voice, her long dark hair and long dark lashes made Quentin ache. “I….. I have always, always said that you deserved better than me.”

“Don’t you fucking dare with that shit right now Quentin!” Ana knew how to feel without raising her voice. “No calls. No texts. Is your wife making you give her your phone password again? Or are you finally just done with me?”

“Ana…”

Ana bore a hole into Quentin’s desk with her eyes. She held back a sob. “You know what the worst thing is?” Her sob broke through. “I actually believed you! I let myself think that you were serious with the stay-together-until-your-kids-go-to-college bullshit.”

“Ana!”

Ana’s hands dug into her elbows.

“I might die. I might. Die. Soon.”

Quentin choked on a lump in his throat.

“I might die very soon.”

Ana took 2 steps away, but let Quentin catch up to her. She wrapped her arms around him and cried into his shoulder. He told her about the second opinion and everything that Quentin knew about how long he was going live, which wasn’t much, but that it might not be very long.

“Quentin.” Ana’s voice hardened to ice. “You’ve known this for 5 days?” Ana pulled away and squared her shoulders. “And when were you going to tell me?!” Her jaw tightened. “When would you have told me if I hadn’t come here and chased you down?!”

Quentin felt a squeeze behind his ears. Ana had to go. “Ana. Ana, I have spent the last…five….five days explaining this to my family.”

“Which I’m not.” Ana knew it was true. She had practiced not caring, knowing the day would come when Quentin would chose his family over her. It hurt anyway. Like a hot poker to the heart, it hurt anyway. Ana turned to leave.

“Ana!”

Ana stopped. She loved it when he needed her.

“Ana…there is a real chance that sometime soon, I decide I want to live my last days…happy. Happy. With you. Would you take me?”

A fire went out in Ana’s eyes. She knew that she would, and she hated him for it.

“I should tell you something. I’ve always been meaning to tell you, but since you’re dying now, I feel like telling you right now. Remember when you were my supervisor in the Narco unit?” Quentin remembered being a supervising attorney at the district attorney’s office and then wished she would just answer his question. “I used to come to you for advice on my cases and whenever I would want prison terms, you’d always ask me why I hadn’t offered the defendants rehab or drug counseling instead.”

“Yes Ana, I remember…”

“And then I started coming to you with ideas for creative sentences, residential treatment, the whole thing. On my performance eval for that year, you noted that I had shown ‘huge improvements in empathy and compassion.'”

“Ana, please tell me…”

“I never cared. I never ever actually cared. I just wanted to impress you.”

Quentin somehow felt less alone when Ana finally left. 5 minutes until his wife came to take him to his doctor’s appointment.

_______________________________________________________________________________

Madison Castro hated her drug case. The black pleather sunglass case held her vaporizer, her dimebag, her “dry herb” vaporizer attachment mouthpiece, medical marijuana card, and a small metal pick. But inside the case was also her old plastic grinder with the crack down the center, a Men’s Health magazine subscription card folded down the middle into a weed funnel, and small brown flakes of vaporized pot. Her drug case was too dirty. Audrey Hepburn would never have carried this drug case.

Madison stowed the case under her car seat as Quentin left through the staff entrance to the Hall of Justice. Quentin said hi as he slid into the passenger seat. They traded looks that agreed not to try to kiss each other because they probably weren’t going to anyway and so they might as well not agonize over not doing it before not doing it.

And then Madison looked at the rest of him. “You should really consider taking the afternoon off.” “I’m going to try,” Quentin said. Was he shivering? “Judge Zuniga said he might be able to cover the mental health calendar this afternoon.”

Madison tucked a straight blonde lock behind her ear and eyed her husband again, and turned back to the windshield as she pulled out of the court’s parking garage. “You really must not be feeling well,” she said to no one in particular. Quentin waited for Madison to remind him of their daughter’s college tuition, their other daughter’s high school tuition, and the job at her father’s lobbying firm that he had turned down when the county’s presiding judge had asked him to pioneer the county’s first court calendar for mentally ill offenders. Town after town whizzed by on the freeway toward Stanford Hospital, and Madison’s usual barbs never came.

“I will still need you to drop me off at court afterward, in case Judge Zuniga can’t cover my calendar.”

“Okay,” Madison said to no one in particular.

“Thank you for this, Maddie.”

Madison looked at him and turned down the car radio. “Why are you thanking me for this?”

“Not for this.”

“Then for what?”

Silence. Madison realized that she had been biting the inside of her cheek. “I never needed you to thank me, Quentin. Not when I quit my job to freelance part-time and raise our daughters. Not when I spent our nights lying next to you listening to you fret about the sad sacks that you had sent to jail that day.” The leather steering wheel creaked under her grip. “Not when I promised not to tell our family about Ana, or any of the others.”

Quentin rested his head against the window and read the sign – 2 more miles until the exit. “I’ll never be able to repay you for that Maddie.”

“If you somehow make it out of this alive, then I’ll figure out how you can maybe even begin to pay me back for that. Or else…” Madison drew a deep breath. Her mouth twisted. “If the girls can’t have a living father they can still have a dead hero.”

Was that the kindest or the meanest thing she has ever said to me, Quentin asked himself. Madison hit her turn signal to take the exit. Her Mini outmaneuvered an Escalade and snatched a parking spot near the walkway to the hospital. They sat in silence for what felt like minutes until Madison reached into Quentin’s lap and took his hand.

“I told you when we were dating that I didn’t want to be like my friends who dated a person for, like, 6 or 7 years without getting married. Whether we like it or not,” Madison squeezed his hand, “we’re family. We’re still family.” Quentin squeezed back, and Madison opened her car door.

He’s not going to make me care again, Madison promised herself. He’s not going to make me care again and then die on me.

_______________________________________________________________________________

Ana watched the coffee cart guy foaming the milk for her cappuccino. His bulging forearms and ironic waxed moustache made him look like an old-timey circus strong man. His Smiths t-shirt broke the illusion and made him look bored and mopey.

Ana looked around at the streams of people passing the outdoor coffee cart as they came and went from the courthouse. The coffee cart guy lifted his eyes for whoever had just walked up behind her.

“Just coffee,” the woman’s voice said.

“I’m sorry ma’am, but we stop brewing coffee at 10:00.”

Ana stepped out of line to grab a lid for her cup. She looked at the disappointed blonde woman behind her. She was the same woman who smiled beside Quentin in so many of the pictures in his chambers. Ana turned down toward her cup and made a show of trying to get the lid on her drink.

“I can make you an Americano,” the coffee cart guy offered.

Madison’s eyes lingered over the steel tank at the side of the cart as though she could make coffee magically appear inside. “Yeah, that’s fine.”

Ana pretended to check her phone as Madison waited for her drink. Grinds and gurgles came from the espresso machine and a flume of steam shot from the cup as it filled with hot water. Madison passed the cream-and-sugar station without a glance.

What am I doing, Ana asked herself as she matched Madison’s pace toward the nearby parking lot. What do I think I’m going to say? “Excuse me,” Ana called. Madison turned and Ana saw her own face in the reflection of Madison’s sunglasses.

“Oh hell no,” Madison muttered. She gripped her car keys in her free hand and her shoes continued to clack toward the parking lot.

“Wait. Just wait, please. I’m…”

“I know exactly who you are,” Madison spat as she stopped and turned toward Ana, “And I remember telling you never to speak to me again.”

Ana remembered the text message that she had gotten from Quentin’s phone, written by Madison. She took a breath. “You told me never to speak to Quentin again…”

Madison clenched her jaw. “Fucking lawyers. Fine. What exactly do you want from me?”

“You have every right to be hostile…”

“I’m not hostile. I’m honest. People confuse that for being hostile.”

You asked for this, Ana thought, now what are you going to say?

“I just want you to know that…that I’m not going to stand between Quentin and his family.”

Madison’s tongue pressed against the inside of her cheek, and then she sneered. “Oh. Okay. Good.” Pause. “Do you feel better now that you’ve said that?” Ana guessed that there was nothing to say afterall. Madison turned toward the parking lot, and then turned back. “I told Quentin to do one thing for me if he ever started fucking someone else – don’t tell me just because it makes you feel better. Don’t pour your sins out for me because its been weighing on you sooooooo badly and you feel sooooooo guilty. But I guess neither of you can help yourselves, can you?” She tucked a blonde wisp of hair behind her ear. “Let me give you something that I had to learn the hard way. At some point in every relationship, you say things to each other that you can’t take back. Not ever. Ever ever. Because when you try to, you realize that you meant them.” Madison wiped a finger under her sunglasses. “And that’s what hurts. Not the words, but the fact that you meant them. And taking them back doesn’t fix the hurt. Enjoy yourself before that happens. But do it with someone else.”

Ana stood frozen as Madison’s heels stabbed the pavement on the way to the parking lot.

_______________________________________________________________________________

“Are you sure about this Quentin?” Judge Zuniga eyed Quentin warily as Quentin zipped up his judge’s robe.

“I’m sure, Sal.” Maybe I can be good to someone before the day is over. I may not have that many left. “All rise,” the court bailiff called as Quentin walked toward the bench from the back hallway.

Jury Dookie

(A piece of short fiction)

“Oh. My. GAWD!”

 

For the first time in several hours, Juror Number 2 put down her cell phone. By this point, I had served on this jury with her for 8 days, six hours, and 15 minutes. I and 11 others had spent the past three days around the conference table in the jury deliberation room discussing the case. My seat was directly across from hers. Watching her chest heave against the flimsy straps of her tank top had kept me entertained for…maybe 20 minutes of those three days? Once the thrill faded, I had found myself with plenty of time to notice Juror Number 2’s less redeeming traits. As my fellow jurors traded ideas about the case, her desire to fit in would cool her desire to tap on her phone. She would then put the phone in her lap, in her bra strap (never have I so envied a cell phone!), or maybe in her purse, but her fingers always lingered over the phone, as though they were promising the phone a swift return.

 

Neela! Her name was Neela!

 

This time, Neela slammed her phone onto the table, sending a rhinestone flying from the phone’s outer case to skid across the dusty blue nylon carpet. Her arms folded and her hands hid beneath her arms in solidarity with what I knew was her wounded pride.

 

“I can’t BUH-LEEVE you people!” Thankfully for those of us enjoying our complementary courthouse water, waxed Iron Man Dixie cups do not shatter on high notes. “I have spent a whole goddamn week here, listening to this stupid case, and one of you have the NERVE to talk shit?”

 

Her eyes darted from face to face, sniffing for the scent of treason. Don’t laugh. Oh God, don’t laugh. Oh no! The corners of my mouth betrayed me. Neela’s eyes narrowed into burning slits before I could remake my Very Serious Juror Face.

 

“You! You creeper! Where do you get off?!”

 

Moi? I turned toward our fearless leader, Juror #12, Dr. Important Dentist D.D.S. I opened my eyes wider and tilted a single eyebrow – What is she on about? At least that’s what I imagined my face was saying to the man who had nominated and elected himself jury foreperson before his 11 disinterested subjects.

 

Dr. Dentist laid 12 index cards on the table. He closed his eyes, whisked himself away to his happy place for just a moment, and leveled his glare at Neela. “Neela,” he tiptoed, “what exactly is bothering you?”
Neela opened her lips, but not her teeth. She could have fried an egg against my forehead with her eyes. “Creeper over there just…just…just cyber-bullied me!”

 

“What is that? Cyber-bullied?” I had known Juror #3 for 8 days, along with everyone else. During jury selection, the judge had made everyone answer a handful of basic life questions. Juror #3 was named Harvinder, and she was a retired nurse who lived in one of the indistinguishable suburbs that blanketed most of the county. Aside from that, she had a warm smile for anyone and everyone…especially when she wasn’t sure what was going on.

 

“All right, look,” Dr. Dentist said as he picked up the 12 index cards again and laid them one by one on the table, “We have been here for three days bickering about this case.” Dr. Dentist plucked the two of the index cards that read “not guilty” and held them at eye level. “Two of you are still not convinced that the defendant is guilty, and no one gets to go home until we all agree, one way or the other.”

 

“Whoa whoa whoa whoa, you need to check yourself right now,” Juror #1 said, folding his arms and spinning his ball cap backwards to make eye contact with Dr. Dentist. “I’m not changing my vote just so you can get back to tightening braces.” I had forgotten Juror #1’s name, and as far as I knew, he owned no clothing other than the Metal Mulisha t-shirt that he had worn to court every day of the trial.

 

“Well if you had a job yourself, and employees who depend on you, maybe you’d be less keen on coming back Monday. My employees don’t get paid until I get back to ‘tightening braces’ as you put it.” Dr. Dentist put his index finger against the conference table, as though his unpaid employees were under there at that very moment hoping for table scraps to fall.

 

“If you were that worried, you could just pay them anyway,” Juror #1 said, meeting Dr. Dentist’s eyes while swiveling his chair in semi-circles. Dr. Dentist snorted in disbelief at Juror #1’s suggestion and then turned to me. “Wei-Wei, is it? What exactly are you doing to Neela?”

 

“Walter. You can call me Walter. I said that before and you can still call me Walter.” The judge had called me Wei-Wei because that’s what my driver’s license and my mom call me. But after 8 days I was still Wei-Wei, the unmarried computer engineering major at Sequoia State University. “And we aren’t even supposed to be Tweeting about the trial until it’s over. I was paying attention when the judge talked.”

 

“Ah ha,” Neela said, “How did you know it happened on Twitter unless you were the one harassing me?”

 

“Twitter?” Harvinder the retired nurse smiled at Neela, expectantly.

 

“Twitter is a website where you can post short little messages. And someone posted this!” She picked up her phone from the table and passed it to Dr. Dentist. Dr. Dentist held the phone like a dead plague rat that might infect his dignity and read:

 

“I wish the judge would tell the hot kindergarten teacher to stop tweeting about the trial. Her sparkly phone is blocking my view. #nicerack #jurydookie”

 

Dr. Dentist spoke the word “hashtag” like some nasty swear word he had just learned in a foreign language.

 

“See? I came up with the hashtag ‘jurydookie’ first! And then I clicked on it to see if anyone else had thought of it and JUST NOW I saw this message with the same hashtag.”

 

“So…” I began, “not only have you been Tweeting about the trial, even though the judge told us specifically not to do that, you also came up with this hashtag that you thought was sooooooo clever that you clicked on it to see if anyone else started using it?” Of course that was what she had done. I had known she would do that. That was the point of using her own hashtag.

 

“All right, enough! None of you are even supposed to be posting on the internet until we get this thing done, and that is never going to happen at this rate.” Dr. Dentist handed the phone back to Neela. “Besides, the person who posted this calls himself LOL underscore DONGS, and his profile picture is one of those mustache masks that the Occupy Wall Street people wear. You don’t know it was Mr. Khek.”

 

Ah. I had been promoted to “Mister Khek.”

 

“Well who else was it? Her?!” Neela pointed her thumb toward Harvinder. Juror #3’s eyes widened, and turned to the rest of us. “But it was not me!” She pleaded to Neela with her eyes while putting a hand on her shoulder.” It was. Not. Me!”

 

“But Neela has a point.” Juror #10 was named Yuri, and his last name had lots of consonants put together: a married engineer with two kids. His accent had become much less noticible since the first day of jury selection, when the judge ignored Yuri’s claim that he was not fluent enough in English to sit as a juror. “How did you know that Neela was upset about something that had happened on Twitter before she even said it happened on Twitter?” Juror #10 folded his arms. His belly strained against the buttons of his plaid shirt. His hairless noggin shone in the flurescent light. For 3 days, Juror #10 had not interacted with us for longer than it took to write the word “guilty” on his index card every time Dr. Dentist called for a vote. And now he decides to chime in?

 

Neela, Harvinder, and 2 other jurors nodded at Yuri and then turned to me. Time to think fast.

 

“I assumed it was Twitter because clearly no one is taking Instagram photos and only my parents and their friends use Facebook.” Was that too scoffing? Or just enough scoffing to deflect attention away from me?

 

Either way, I was not convincing enough for Patty Sanchez, Juror #11, who turned one lip up in disgust at me. “That is so incredibly rude. And oppressive to women. This is supposed to be a place where everyone is safe to share their thoughts and you just violated all of the trust in this room.” Neela, Harvinder, Yuri, and the other two nodded. That was 6 of them. Six jurors up in my shit.

 

“Well if Neela has been Tweeting about this trial, she has already violated the trust in this room.” Maybe Dr. Dentist didn’t care about sexual harassment. Maybe Dr. Dentist was sick of Patty’s constant “not guilty” votes. Either way, he was done. “None of you need to be talking or Tweeting or blogging or anything to anyone else not in this room.”

 

” ‘None of you need to be talking?’ You sound like a frickin’ middle school yard duty.” Yes! Metal Mulisha was starting a mutiny. Ten jurors smirked and held back laughter. I didn’t bother holding back.

 

Patty turned to Neela. “One time my friend posted pictures from her trip to Curacao on her Instagram. She was going to go to Aruba but thought it was too touristy. And then that girl disappeared and got killed by that rich boy from Holland. So she went to Curacao instead. Anyway, she posted pictures and some guy made a comment on her bikini and she was all like ‘I bet I know who this is – there’s this guy in my O-chem class who keeps staring at me in discussion section.’ And we both had a class with this guy in the afternoon, so when we all sat down in the lecture hall, she tried to sign into Instagram as him. But she didn’t know the password. So she clicked the button that sends a new password to your phone. And right when she did that, the guy got a text and looked at his phone, and so we knew it was him.”

 

Fire shone in Neela’s eyes as she picked up her phone. Her nails clacked madly against her phone. Crap. My hand snuck under the table to my phone to disable the text notification settings on my phone before its vibration could give me away.

 

Bzzzzzzzzt.

 

Too late. Neela’s eyes grew to the size of dinner plates.

 

“Just a dang minute here,” Dr. Dentist pounced on Patty. “Besides this guy being a jerk,” the doctor’s thumb primed toward Metal Mulisha, “the whole reason we are still here is because you don’t think that the defendant was the one who threatened the victim on Facebook before he got shot dead in his driveway.”

 

“Because that’s totally different!” Ten jurors scowled at Patty. Neela’s death gaze never left me. I pretended not to notice. “The defendant said that he kept his Facebook open on his computer, and he lived with his brother, and his brother had threatened the victim too. One time my little brother broke into my Facebook and talked all kinds of shit on my friends’ Facebook walls. And I had to call them all and say it wasn’t me, it was my brother, and…”

 

Dr. Dentist spoke without taking his eyes from the ceiling. “Did your little brother have an ankle monitor that pinged within 10 yards of your computer at the same time as he posted the comments? Because you know that the defendant had one of those. It pinged 10 yards from the scene of murder 15 minutes before the murder.”

 

The light went on in Patty’s mind. “Oh yeah…..” Silence. Meanwhile, Neela’s eyes had not moved. I remembered a story that my U.S. history teacher had told me about how the CIA killed an Iranian diplomat by seating him behind a tube that shot radiation right into the back of his head.

 

“Maybe….I guess he did it.”

 

“OF COURSE he did it,” Neela said to Patty.

 

“No…the defendant. I guess he did do it after all.”

 

“Well, this game is no fun if I’m the only one playing it.” Metal Mulisha grabbed a new index card from the stack in the center of the conference table. He scrawled the word “GUILTY” in big spikey letters. The jurors began to shift in their seats as though they had all been defrosted at the same time. The clouds parted from Dr. Dentist’s eyes.

 

“So…,” Dr. Dentist begin, weighing each of us for signs of dissent, “does that mean we all agree?”

 

A wave of grateful nods circled the table. Dr. Dentist sprang from his chair and knocked on the door of the deliberation room. The bailiff answered, and Dr. Dentist told him that “his” jury had reached a verdict. No one could care less about me anymore.

 

We filed into the courtroom and took our seats in the jury box a half-hour later. Although we were about to deep-six his client, I still had to admire the defense lawyer for leaving everyone on the jury while the prosecutor had tried to kick as many of us off as possible. Using chaos to hide a man’s crime was black-belt level trolling. I had much to learn.

Three Years Ago Today…

Happy Anniversary to me! Chasing Truth, Catching Hell turns 3 years old today. Year 3 will begin with a different tone and focus. The theme of the blog won’t change, but the style will be more fiction and less polemic. I’ve enrolled in a creative writing class (online, open to all) from the University of Iowa to expand my skills as a writer. I am now trying my hand at short scenes and stories, some of which I will share in the near future. I have noticed more than one literary-minded person follow Chasing Truth within the past year; I would love to hear your honest feedback on what you read.

Wish me luck,

Norm DeGuerre

The Warrant Exception: A Fourth Amendment Field Report

Most of my cases involve some kind of search. My clients have had their homes raided by squads of police officers sporting surplus military weaponry. Their underwear drawers, pants pockets, and backpacks have been turned inside out. They have been ordered to sit on curbs in handcuffs beside their cars while their neighbors looked on. In the most extreme cases, the long arm of the law has pulled its nitrile gloves tight across the knuckles in its search for contraband.

Given the invasive nature of these searches, should a police officer be able to carry them out whenever he or she wants? Shouldn’t a neutral, detached member of the judiciary take a look at the officer’s’ reasons for wanting to do these things, consider whether those reasons amount to probable cause and sign a warrant stating that the officer’s behavior will pass Constitutional muster? I would only need two hands to count the number of times my clients have seen a warrant before a search, but I would still have fingers to spare.

And yet as a matter of law, any search without a warrant is presumed to be illegal. This rule, along with the rules requiring Miranda warnings and appointed counsel for the accused, came from a bygone era of Supreme Court jurisprudence. In later years, the Rehnquist Court found many of these rules too protective of the accused. Rather than overturning these rules, the High Court decided to puncture them with exceptions that police can rely on to justify their behavior. In most cases, the police succeed because the “exceptions” cover the vast majority of times my clients have been searched. Searches done with a warrant are now the exception, not the rule.

My client (let’s call him “Client”) lived in a duplex in one of those unincorporated areas between good-sized cities; an older residential neighborhood with too many cars parked in the driveway and no sidewalks. Client shared the duplex with his wife, his brother-in-law and his brother-in-law’s indoor marijuana grow, which he tended with help from a friend who lived elsewhere (let’s call him “Parolee”).

One day, Parolee addressed his finished product to the wrong ZIP code and accidentally mailed a big box of marijuana to the other side of the state. Detectives from far away soon began following my client and his family because they lived at the return address on the package. They engineered a “consensual encounter” with Client and Parolee on the sidewalk in front their home just as they were about to unlock the door and go inside. For 15-20 minutes they peppered Parolee with questions to find out whether he lived in the duplex (if he had lived there, the detectives could have searched without a warrant). Parolee, who had accepted a totally voluntary invitation to sit on the curb between two police cars, continued to insist that he did not live there.

So the cops went with their Plan B; they tracked down Client’s wife in the maternity ward of the nearby hospital, waited until after she had given birth, confronted her as she was learning to nurse her infant, and convinced her to sign their consent form. I will point out here that Client and his wife have very limited English skills; I had never spoken with Client without an interpreter. The officers claimed that all of their interactions with Client and his very new family were consensual, and that Client and his postpartum wife could have ended the encounter at any time.

Now if I pretended to be a member of my local bench, I would say that living at the return address on a big box of pot is probable cause to search Client’s home and sign that warrant. If I were the on-call judge, available 24/7 to sign emergency warrants, I might have even signed it outside of business hours.

So why harass a new mother and her newborn baby instead of simply asking a judge for a warrant? If you have given birth, or have been at a birth, you know what a special and vulnerable time it is for the mother. The miracle of life is exhausting, messy, painful, and overwhelming; between hospital gowns and nursing, it leaves little room for modesty. These detectives had chosen to drive hundreds of miles to interfere with something sacred rather than seek a warrant from a judge.

That’s the part that gets me; they didn’t have to, they chose to. Why?

And if cops can bust in on a woman learning to express colostrum, what can’t they do?

Respectfully Submitted,

Norm DeGuerre

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