The following is a search engine query that led someone to this blog:
The police and the
courts had tunnel vision and
didn’t give me bail.
The following is a search engine query that led someone to this blog:
The police and the
courts had tunnel vision and
didn’t give me bail.
A client of mine was recently sentenced to 19 years in state prison. His sentencing took place a handful of days after his 18th birthday.
Prior to that, and all during the time I represented this client, he was housed at juvenile hall. Although he was a teenage boy, the district attorney decided to charge him as an adult.
By age 16, my client had made the very grown-up decision to replace his failed high school career with the instant acceptance and gratification he got for having the same tattoos and wearing the same colors as the tough kids in the neighborhood who never looked afraid of the cops, or of anybody for that matter. My client then learned that if he sold weed for them, would get paid both money and weed. His one parent who was not perpetually high on crank worked two jobs; no one lifted a finger to save him.
None of this changes the fact that he swung a knife at two other gang members to keep them at bay while his buddies pummeled another kid, who was also a gang member. But the kid described in the police reports bore little resemblance to the kid facing a felony sentence two years later. The kid who sat beside me was in protective custody after resigning gang membership in the most terrifying and official way possible: by renouncing gang membership when he was booked into the adult county jail on his 18th birthday. My client had his GED and had devoured the copy of Ender’s Game that I had loaned him.
For the next 16.15 years (which is 85% of 19 years, as required by law), my client will be a ward of California’s bloated prison population. For perspective, the Supreme Court recently ordered California Governor Jerry Brown to release another 10,000 prisoners by the end of the year. A federal court in Sacramento had found that, on average, one person per week was dying due to preventable medical reasons, made unpreventable by the fact that California’s prison system was at over 175% of capacity. With the release of 10,000 more prisoners, the prison population will hover at the 137% of capacity ordered by the court.
Who are all of these prisoners? Some of them are terrifying individuals. It should be no surprise that there are some pretty scary people in prison whose crimes garner media attention and inspire harsh sentencing laws, like Three Strikes. But then those laws are used against less-scary people who wind up in prison for decades for crimes such as stealing a bike, or punching a security guard while shoplifting a beer. Many of these laws were passed through ballot proposition, and by overwhelming margins. None of these laws included new taxes to pay for the added expense of more prisoners and, as more and more “lifers” entered old age, more elderly prisoners.
Also, let us not forget that since the California taxpayers decided that they had had enough of funding state hospitals for the seriously mentally ill, the Department of Corrections has become the biggest purveyor of mental health services in the state.
Among the more notorious groups in prison are California’s prison gangs. California’s prisons have themselves been the incubator for violent prison gangs whose associates on the street, especially their impressionable family and neighbors, form the tendrils of the monster that sucks in kids like my client like a hungry giant squid. Voters responded to their Frankenstein by passing the Street Terrorism Enforcement and Prevention (STEP) Act by, you guessed it, ballot proposition. This was the law the DA chose to use to have ten years added to my client’s sentence.
These are the forces that have combined to send someone who can’t grow a moustache to live in a locked facility among actual hardened criminals. Although he could have controlled his behavior on the day he was arrested, I fail to see what say he had in any of the surrounding circumstances that, at the time, made a knife fight with gang rivals seem like a good idea.
I also fail to see how a decade-and-a-half in California’s prisons will change those circumstances. Like it or not, people like my client will be our neighbors again, someday. Will his time behind bars make him a better neighbor? Will my client “spend his time regretting his crimes and holding himself accountable for his behavior” like he is supposed to?
This will only be true to the same extent that a dog might learn not to relieve itself indoors by having his nose rubbed in it; unless punishment occurs more or less simultaneously with the crime, the punishment won’t be associated with the crime. Anyone who has successfully completed any prison term, of any length, will tell you that after year 3, 4, or 5, the unique combination of misery, anxiety, violence, and boredom is no longer associated with any specific cause; it becomes suffering without purpose, lesson, or goal.
When my client is released 16 years from now, his neighborhood will either still be dangerous, or will be razed to the ground in order to make room for retail stores and stucco condominiums. The schools will still be failing, and even more job opportunities will have been either shipped overseas or given to machines.
So the only consolation that I can give to my client, on his 18th birthday, is that the world might not change as much as one might expect before his release.
“This isn’t a court of justice, son. This is a court of law.” – Billy Bragg
When a jury of six people found George Zimmerman not guilty of murdering Trayvon Martin, I found myself utterly unable to respond to the verdict in real time. For those who have spent the past couple of months hiding in a cave with their eyes closed and ears plugged, George Zimmerman was a neighborhood watchman in Florida. Trayvon Martin was a teenage pedestrian who passed through the fiefdom over which Zimmerman stood vigilant against all the “punks” and “assholes” with his concealed 9mm pistol. Martin carried only Skittles and iced tea that he had bought from the store. Within seconds of spotting Martin, Zimmerman called 911 to report that he had seen Martin, in his neighborhood, doing nothing in particular. Although the dispatcher advised caution and restraint, Zimmerman lamented (in the recording of the 911 call) about how “assholes” and “punks” like Martin “always get away” and he decided to pursue. Zimmerman then followed Martin until Martin physically confronted the stranger who was following him for no apparent reason. In response to the nominal danger that he himself provoked, Zimmerman shot Martin dead.
I found myself unable to muster outrage because, frankly, I wasn’t surprised at the outcome. I also found myself unable to have any sort of conversation with anybody about it because those who either lamented or celebrated the verdict suffered from the same core delusion: that Court-With-a-Capital-C is a place for justice to happen.
Anyone who has spent one minute in an actual courtroom understands that a court is a machine; it has moving parts that fulfill their functions within predictable degrees of verve, skill, and enthusiasm. The list of possible outcomes for a case is limited, as are the possible options that the machine’s players can choose from prior to the case’s final outcome. And when the courtroom deputies radio to the basement to send their “bodies” (in-custody defendants) up to a courtroom for their court appearances, we receive a crude reminder of what this machine processes; it processes human beings. At no point during this process will the victims get their loved ones back, nor will this process heal any wounds or scars. Sometimes property is recovered, but more likely it will be repaid pennies on the dollar through the pittance that the defendant earns for his prison labor. At no point along this route does an accused receive the job training, addiction counseling, and/or long-term psychotherapy that would prevent a huge majority of all crime if they were freely available. At what point does anyone expect justice to squish through the sausage funnel at the end of this process?
Every final outcome in a criminal case represents an outcome that the system was designed to produce. Many years of lobbying by the firearms industry and self-defense enthusiasts produced Florida’s self-defense laws. These laws require no retreat and make no issue of who first instigated the violent encounter or why he did so. All a person has to do is claim that he feared for his life and kill the only other witness to the contrary. And when a person does this, faces trial on national television, and walks out the door afterward, the system works exactly the way that it was designed to.
Now, I have made no mention thus far of the races of either Zimmerman or Martin. The system flatters itself fair and impartial because–on paper–the race if the individuals involved should not matter. But if race does not matter, why was 71-year-old Trevor Dooley (African American) denied an acquittal when he claimed that he shot a man thirty years younger, four inches taller, eighty pounds heavier, and did so in self defense? Why is a black defendant 354 times more likely to be convicted of murder than a white defendant in cases alleging “self-defense?” A law that claims to be race neutral while producing racial injustice is, regardless of its intent, a racist law. The courts that enforce racist laws produce racist results.
The courts in Florida and elsewhere enforce laws that make it dangerous for young black males to walk home from the store and dare to defend themselves against a stranger who decides within seconds that they are “assholes” and “punks.” This is not justice, but justice is not what these machines produce.
The solution for law abiding citizens who want to come home safely from the store is to stop relying on courts to produce justice. For the past four weeks, a group of students calling themselves the Dream Defenders have been staging a sit-in protest at governor Rick Scott’s office seeking redress for the laws that allowed Zimmerman to legally kill Trayvon Martin; they are trying to stop the gears of the machine with their bodies. In response, Florida house speaker Will Weatherford has announced his intention to hold hearings on Florida’s self-defense laws. The Dream Defenders clearly understand that justice is something that must be sought outside the courtroom.
Please don’t think of this as a tardy Trayvon Martin piece; I prefer to think of this post as a timely piece in support of those actively resisting the systemic racism of our court system as though their lives depend on it.
Their lives do depend on it.
I have a public defender, and I have no idea whether he’s doing a good job for me. In fact, several of the things he does in court make me really, really nervous. Also, the things he hasn’t done make me really, really nervous. I feel like a kitten floating downriver in a basket and I’d like to know whether I’m headed over the falls. What should I do?
Condolences on the fact of your pending criminal case. As you now know, an arrest is just the start of a long, complicated process. If you were arrested and taken directly into custody, it probably felt like you were plucked out of the life you thought you were going to lead. Dour gendarmes stuffed your belongings into a locker at the jail. Your fingerprints and DNA samples are now cataloged in a computer database (you know, for those many unsolved murders that you might have done). You had your clothing replaced with an ill-fitting jumpsuit with garish colors that almost hide the stains. The monetary value of your freedom was computed, and if you were lucky enough to make bail, when you returned to your old life you found that everything was different. And that’s if you were lucky enough to make bail. All of this happens on or before the first court date, the arraignment.
If you are in custody, you are entitled to a court-appointed lawyer or public defender, no matter how much money you make. If you post bail after having been appointed a public defender or a court-appointed attorney, the PD’s office can ask for an income reassessment if they think you are hiding assets or otherwise trying to scam the system. This rarely happens, primarily because it is rare to have someone scam the system like that, but know that it is possible. If you live somewhere with a good PDs office and you’re on the cusp of being appointed a lawyer, consider the benefits of staying in a few extra days.
After the first court date, you will meet other parts of the justice machine. For example, you will meet a district attorney. Anyone who is offended by the manner in which the district attorney treats him should remember that a typical DA endures an entire career without ever, ever having a client. A successful prosecutor doesn’t have to be a “people person.” In fact, they are probably successful prosecutors because they aren’t. Don’t take it personally when they forget that the target of their in-court sermons are people, albeit people who might have hit their spouse or sold a dimebag.
It is important to realize here that a district attorney isn’t out to get the “truth.” The district attorney is out to get you. The “truth” is not what happened; the truth is what it looks like happened. It doesn’t matter how guilty you actually are, what matters is how much the evidence makes you look guilty. Good criminal defense lawyers operate with this in mind. Good criminal defense lawyers don’t moralize. I don’t care whether or not you actually did what you have been accused of doing; it’s irrelevant to your defense. Please remember this before you choose who you will talk about your case with. I strongly suggest not talking to the cops or the DA — or anyone, really — before you talk to your lawyer. Your lawyer will help you avoid saying or doing things that make you appear even more guilty than you already do. Your lawyer is also ethically obligated to advise you what is in your best interest, unlike the district attorney, the cops, and that crazy guy you were housed with who wants to turn snitch.
Furthermore, DAs often refrain from even talking to their victims and civilian witnesses until the latest possible time before trial; this spares them from having to memorialize those conversations and hand them over to defense counsel — especially those inconvenient conversations that reveal weaknesses in the district attorney’s case. After all, a civilian can’t be trusted simply to re-read a police report moments before their testimony and recite it as though it were his honest-to-God memory; it takes at least 16 weeks’ worth of police academy training to master that trick.
No public defender ever, ever wants to admit that despite their best intentions, they too are parts of this machine. That being said, a person’s typical experience with a public defender is probably going to fall into a handful of patterns. Also, that person’s public defender may or may not do certain things that make that person nervous. However, none of the following are cause for concern in and of themselves. Only you know your situation, but I can give you some possible explanations for some common complaints.
I. My public defender only sees me in court.
This is a common complaint, but is not necessarily a reason for concern in the majority of “non-life” felony cases. An experienced public defender can diagnose a typical felony case within a few minutes of conversation. Domestic violence cases in particular follow certain patterns. Is there a pending child custody dispute? Was she drunk? On psychiatric medicine? Who hit who first, and with what? Here, you’ll read the police report and tell me which parts are bullshit. We don’t need to set up another meeting to do this. It can be done in court.
Please don’t take this the wrong way – every client’s case is important. But important does not mean the same thing as complicated.
Here are some things that you should do in court to ensure that your public defender is on top of your case outside of court.
II. My Public Defender is Telling Me to Plea Guilty
First of all, she’s probably telling you to plea “no contest.”
Second, your public defender may just be trying to tell you something. A public defender doesn’t suggest a plea bargain because she is “judging” the client; she is concerned with how the evidence against the client will look to a jury. A public defender will typically recommend a plea bargain if the proposed sentence is appreciably better than a likely post-trial sentence. If a public defender repeatedly insists that a client take a deal, it may not be because the public defender does not understand the client’s problems with the deal. What the public defender might be trying to say is that whatever the client’s problems with the deal, the alternative of trial is not likely to solve those problems.
III. My Public Defender isn’t doing anything for me.
Articulate exactly what you would like your Public Defender to do. He cannot make your case go away. He can try to talk some sense into the DA, but he might not be successful at it. Sometimes, the hard truth is that when you are accused of a crime, it’s because “they” want you in jail.
IV. If I had a private attorney, I would be out of this mess by now.
Not necessarily. I know it seems that celebrity clients can get away with murder and maybe you think you could too, if their lawyer was working for you. This is only fantasy.
You don’t get to go back to your pre-arrest reality. The sooner you can accept this, the better decisions you will make. I had a client so in denial of the evidence against her, she refused a plea-bargain that included no jail time and potential for record clearance. It can be difficult to think logically about the evidence against you. Although it is cliche for a public defender to pressure a client into taking a plea deal, consider whether it might actually be a good deal before you refuse.
I know that what I am saying here can be seen as part of the growing field of public defender apologetics, so how do you know if your public defender or criminal defense lawyer isn’t doing a good job? What are some warning signs? How do you know it’s time to mortgage everything you have in order to get a defense that will keep you out of jail? Isn’t that exactly what you want to know? Of course, I can’t tell you what you should do. Just about the only legal advice I can give you is not to take anonymous advice from over the internet. But I can give you some thoughts to consider:
Know that any kind of no-custody bargain may be the start of a whole new set of problems. Are you going to be on an ankle monitor? You have to pay for that. Counseling? You have to pay for that. Drug tests? You have to pay for that. If you choose probation, make sure you know the terms of your probation and are able to follow those terms. Be honest with your lawyer about any addictions. If you violate your probation, you might be worse off than if you had just accepted jail time in the first place.
Also, know that a trial is a very stressful experience. And juries are weird. Anything can happen; do you still want to roll the dice? That is your decision alone. I’ve had many cases settle right before I was about to pick a jury. It’s okay to listen to your stomach if it’s trying to tell you something.
Do you know what the evidence is against you or is it that you don’t like what the evidence is against you? You will make better decisions if you are informed about your case and know your real options. You can’t go back in time. You must face this problem head-on.
Keep written records of all court appearances, conversations about your case, everything that has happened. If you do think you are getting Ineffective Assistance of Counsel, this will help your case.
Ask yourself what the potential for downside will be before you take independent action in your case, especially against your lawyer’s advice.
And finally (and this should go without saying), don’t intimidate any witnesses! Not only is it a felony in itself, it never helps the case. It’s better a witness says what they have to say and give the jury the opportunity not to believe them than for you to have to explain why you acted like a guilty person if you’re not. So if you have any friends who might talk to a potential witness on your behalf, tell them to knock it off.
When you are accused of a crime, the best thing you can do is keep quiet and mind your business until it’s over, which may be a very long time.
If you do end up going to trial with your public defender and she does get you a “Not Guilty” verdict, be prepared that the judge may order that you pay for attorney’s fees. Sometimes, the DA will even ask on “our behalf.” Although this is transparently vindictive bullshit, you just ducked all of the worse possible fates. Congratulations!
Good luck out there.
When assistant public defender Travis Williams promised the camera that he would tattoo the name of every client who lost at jury trial on his back, my first thought was, “He’s going to run out of room.”
This concern had nothing to do with Mr. Williams’ skill or dedication as an advocate for his clients–quite the contrary–but the electric idealism that sustains new public defenders is precious and all-too-temporary. I imagine that bearing each and every trial loss on his body will weigh like a lead weight around his psyche, and the weight can quickly snuff that spark. If Mr. Williams’ trial calendar continues to follow the pace of the murderous meat grinder in which he appears to practice, he may find himself with several dozen names to arrange within his first five years.
Travis is one of three subjects featured in Dawn Porter’s excellent documentary, “Gideon’s Army” which is playing on HBO. Gideon’s Army focuses primarily upon the lives of three public defenders in the American South: Travis Williams, Brandy Alexander, and June Hardwick. The film also features Jonathan Rapping and the folks at Gideon’s Promise (known formerly as the Southern Public Defender Training Center), who appear to serve as equal parts mentors, senseis, and therapists to the young public defenders in the South who participate in their program.
Travis is our introduction to the world of public defenders, but the film’s climax comes when Brandy Alexander wins a “not guilty” verdict for her client, Demontes Wright, who faced a life sentence because two brothers accused him of taking a small amount of cash from their pizza parlor’s register. Brandy’s story cleanly captures the unique agony of being a public defender with an innocent client; Brandy knows full well that her innocent client could go down at trial. In Georgia, a guilty verdict for this charge meant a life sentence. Mr. Wright had recently resumed his education and looked to be on the verge of getting his adult life started on the right foot until being charged with this offense. His very life was at the mercy of a store clerk who identified Mr. Wright as the robber but admitted on cross-examination that he never really looked at the robber’s face. The state’s case hung entirely on the word of this witness, and across the country, such flimsy evidence is used every day to convict people of crimes. Ms. Alexander literally saved this man’s life; it makes for a stirring ending.
I see why Ms. Porter didn’t want to make Gideon’s Army too depressing, but the happy ending gives the viewer an artificial sense of a young public defender’s efficacy: that is, that the systemic inequities of our justice system can be overcome by idealism alone. Idealism is so featured in the documentary, it is almost a character in itself. Idealism is the true hero of the story.
This touches on a widespread phenomena of the State outsourcing its responsibility to see to it that society functions by relying on idealists or other “faith-based” institutions. This excuses and exonerates the powerful Alphas from their hedonistic money-grabbing because the empathic, bleeding-heart Betas will keep things from slipping too far into decay. And when charity proves insufficient, there is money to be made; for-profit prisons flourish where faith fails. The problem is that this effectively privatizes social services so they are available firstly to those who agree to the agenda of the organization caring for them. Do we really want to distribute justice in the same way we parcel out canned food, clean needles and sleeping cots?
Gideon’s Army is noticeably silent on those inequities in our justice system that cannot be overcome solely through plucky idealism. The system needs public defenders to keep it honest because without them, the system would cheat. This notion is unthinkable to most people, and I had hoped that Gideon’s Army would open a crucial opportunity to begin the process of re-educating those who take justice for granted. I would have loved to have seen Travis cross-examine one of those bent narco cops who insist under oath that his client “consented” to being searched, thereby making the search legal. Prosecutorial misconduct is a leading cause of convictions being reversed on appeal, and despite this, it remains one of the least investigated variety of ethics violation by state bar associations nationwide.
Again, I can see why Ms. Porter focused on the nobility of her subjects and not on the misdeeds of their opponents, but I hope the viewer doesn’t get the false impression that prosecutors and police are free of wrongdoing. Arresting and searching someone without probable cause is just as illegal as robbing a pizza parlor, but cops and DAs are on the side of power; their law-breaking is not only ignored, but most people actively disbelieve its existence. Sanctimonious DAs who overcharge clients simply because they’ve mistaken the rods up their asses for the needle of a moral compass are ruining a life, a family, and a community to a much greater extent than swiping money out of a cash register does.
Public defenders are the only ones holding the line between “well-intended” overzealous prosecution and a police state. Ms. Porter exposes the uncomfortable truth of how thin that line is and how, in some communities, it has effectively already been crossed. For many minority and low-income clients, justice exists only for those that can afford it. Do we really want to live in an America where innocence is for sale?
I understand that my opinion of Gideon’s Army may differ from a layperson’s. As the film itself points out, a mere 15,000 public defenders exist nationwide to represent millions of indigent accused. We are clearly too small a market to be this film’s primary target, not to mention that many of us don’t have a premium cable subscription. At minimum, my hope is that a layperson watching this movie would think to themselves afterward, “That is noble, worthwhile work that these people are doing; maybe we owe it to them to make the job just a little less miserable.”
Without public defenders, justice doesn’t happen. And public defenders deserve the resources necessary to carry out their work. I do not wish to criticize the lawyers featured in Gideon’s Army, but my impression is that the job function they carry out seems more like social work than actual criminal defense. Giving a client a thorough explanation of what is happening so he knows exactly where he is in the process of being screwed is certainly part of the PDs job function, but there’s more to it than that. As a public defender, I am part of a team of lawyers, paralegals, investigators, lab technicians and other experts who work together for the defense. If a PD office can’t afford to test for finger prints that might exonerate a client, then how can it give truly effective assistance of counsel? And I think the harsh truth of the matter is that it cannot. If clients are pleading guilty just to avoid the possibility of a life-sentence, then the “system” is not working.
I find myself wondering whether the film’s triumphant ending avoided confronting the viewer with the hardest, most bitter truth about our criminal justice system: innocent people can and do go to jail, sometimes for forever. I held my breath during Mr. Wright’s verdict and I felt genuine relief as the “not guilty” was read. I would never, ever wish for any other result for him. But part of me wonders what kind of impact the film would have had if it forced the viewer to watch as an innocent person – with evidence on his side – goes down anyway. Although many people understand, intellectually, that innocent people can and do get convicted, almost nobody knows what it looks and feels like as you watch it happen. Most people believe that those in prison deserve to be there. I can tell you that many of them do not.
At least one Supreme Court justice denies that any innocent person has ever been wrongly convicted and executed in the past century. With this in mind, the lesson that Gideon’s Army teaches us is more urgent than ever.
“I want a Marsden motion!” my client proclaimed from his seat in the jury box.
When a courtroom is not used for a trial, the jury box is typically used to seat 12-14 inmates, handcuffed in pairs, waiting for their turn to appear on the felony “entry of plea” calendar. The inmate who happens to be handcuffed to my client doesn’t know what a Marsden motion is, but he looks wistfully at the nearby sheriff’s deputy in hopes that he will be unshackled from this man before he has to find out.
When the judge hears the client’s demand, every muscle in his face tenses as he looks at the wall clock and then over at me. “Why can’t you control your client,” the Judge tacitly asks with his glare, “and who told him what a Marsden motion is?”
With an apologetic smile and a shrug, I admit that it was me.
“Sir, I’m sorry you’re not happy with your representation so far,” I had said to my client moments before his audible outburst, “but if you really think that I’m ‘fucking you raw’ because I’m ‘working for the DA,’ then you should tell the judge that you want to make what’s called a Marsden motion and have me fired.”
I told him this because, quite simply, he has the right to know that a Marsden motion is an option a defendant has if his lawyer’s representation is so defective that it effectively violates his right to counsel. Since I work in a county with an exemplary PD system, most Marsden motions are basically an opportunity for the client to lash out a lifetime of problems on the nearest available mammal (and if you’re a PD, that mammal usually happens to be you). I can’t and don’t take it personally.
“Ladies and gentlemen,” the judge intones, “we ask that you leave the courtroom for the next few minutes while we take up this matter outside of your presence.”
And the adventure begins!
One by one, the remaining inmates, lawyers, and gawkers leave. Since a Marsden motion requires a ceremonial Airing of Grievances about the client’s representation, attorney-client privileged communications are often divulged. To protect these, the court room is closed to all but the attorney, the client, and the court staff. The transcript is sealed after the motion concludes.
“Sir, I understand that you want to fire your public defender,” the Judge says, tip-toeing between syllables like someone trying to delay an unpleasant hospital visit by going very, very slowly down the hallway. “Tell me more.”
My client proceeds to tell him more. Much, much more. And I start to grow agitated.
I’m not worried about what my client is saying about me. I’ve been “Marsdened” (it’s a verb in PD jargon) before, and even though part of me wishes some had been granted in order to be rid of particularly unpleasant clients, none have been. What does scare me is the possibility of being found “IAC.” That’s when an appellate lawyer looks over a trial transcript and decides that the guilty verdict was due to “Ineffective Assistance of Counsel.” Being Marsdened is a rite of passage; IAC is more like last rites.
I am agitated because I know that I will likely still be tasked with representing this client when this is over and he is making my job–the job of defending him–even harder. I visualize what the transcript of this hearing looks like and I wish I could
strikethrough the portions that I wish he were not saying, out loud, to the judge.
Did I mention I’ve been Marsdened before? Do you want to know what it feels like to sit through a client’s Marsden motion? Then read on and chose your own Marsden adventure:
If your client is accused of a “domestic” charge, proceed to section I.A.
If your client is accused of auto theft and has been talking to the “jailhouse lawyer” at the jail’s law library, go to I.B.
I.A. Judge, this whole thing is ridiculous. My lady wants these charges dropped completely.
I also called her last night from the jail and she told me that she wants the “no contact” restraining order dropped. She’s going to come in here and say that she made the whole thing up because she was drunk and mad at me for cheating on her. Also, she’s bipolar. That means that she lies all the time, right? I saw it on “Dr. Phil.” Anyway, my dump truck public defender is telling me that what she said to police is a “prior inconsistent statement” that comes in as evidence even if she takes it back. But that’s not true, right? He just wants me to plea because he has too many cases.
I.B. Judge, this public pretender isn’t doing anything for me. I told him that I wanted an attorney. I’m entitled to a court-appointed attorney, but they keep giving me public defenders instead. Also, I heard in my dorm unit at the jail that if they don’t bring you to court within 48 hours of your arrest, they have to dismiss the case. Well sir, I was arrested on a Friday, and I know that it was still Friday because when the police pulled me over i
n that stolen car, I looked at the dashboard clock and saw that it was 11:48 p.m. I didn’t have my first court date until Monday, so my case should be dismissed. At least that’s what I heard.
I also wrote a motion myself; i
t’s about voluntary intoxication. I read in the law library that being voluntarily intoxicated can sometimes be a defense. Well, I can tell you that I was TOTALLY voluntarily intoxicated up when all this happened. I remember the six-pack, I remember…whatever that stuff was in the pipe they were passing around. I remember having the slim jim and the shaved key, but I don’t remember actually using them to take the car. I do remember speeding away from the police, and I remember trying to swerve around the cop who was trying to stop me, but I don’t remember anything about supposed “threats” I made to “make him my bitch” with his nightstick. There’s more and it’s all in my motion, but this dump truck won’t file it. I think he’s working for the DA. He says that he won’t file it because it has “incriminating statements,” or because it contradicts the confession that I supposedly gave afterward, that I don’t remember. I don’t know, he can’t seem to get his story straight about why he won’t file it for me.
Also, no one read me my rights when they arrested me. They were supposed to tell me that I had the right to remain silent. That means I get a dismissal, right? … Well, no, they never actually asked me any questions … No, I didn’t actually say anything after I was arrested. But I’m supposed to be read my rights! I need a REAL lawyer who knows these things to get me out of here!
Lifting an eyebrow, the judge looks to me and asks, “Mr. DeGuerre, how do you care to respond?”
If this is your first court appearance with this client, go to section II.A.
If you’ve already discussed each and every one of these things with your client, go to section II.B.
II.A. Your Honor, it is absolutely, positively true that I have not yet done anything for this client. I have not seen him at the jail. I have not called his baby’s mom on his behalf to keep her from throwing out his stuff. I haven’t looked into whether the police search of his pockets was legal because he’s not charged with possessing anything illegal; the charged crime is violent and happened in the police officer’s presence. Quite frankly, I just got this file two days ago; only by breaking the laws of physics could I have gone back in time and done all the things that my client seems to think that I should have done before today. Given that I obey the laws of physics at all times, I trust that I can represent this client to his satisfaction if given…some time, any time, at all.
II.B. Your honor, my client demanded after his first court date to receive his “discovery packet.” He seems to be in continued disbelief that his “discovery packet,” at this stage, consists entirely of the police report that I have reviewed with him several times. He claims the police report has “got nothing” on him because it doesn’t include fingerprints, DNA, or surveillance video; it contains nothing more than statements of witnesses who said that they saw him do it. I explained to him that these are still “evidence.” I explained that public defenders are, in fact, attorneys. I explained that I do not work for the DA simply because I told him what the DA’s offer was. I explained to him that hiring the “real lawyer” that his mother has been talking to may or may not get him a better deal, but that she’s welcome to get a second mortgage to pay his retainer in order to find out.
The judge makes eye contact with each of us one more time. He has the information he needs in order to make a decision.
If this is a judge who, in the past, has threatened to hold you in contempt for objecting during the DA’s closing argument, go to section III.A.
If this is a judge who is deathly afraid of the client deciding to represent himself, go to section III.B.
III.A. Sir, I assure you that Mr. DeGuerre is a devoted advocate. He’s a fabulous attorney, and you’re lucky to have him. The fact that you get his services free of charge is one of those curious luxuries that comes with having a free society. The defendant’s Marsden motion is denied.
III.B. Sir, I completely understand your concerns. It sounds as though Mr. DeGuerre needs to make himself more available to you by phone. Perhaps you should call during his lunch hour, when he is at his desk eating the sandwich that he brought from home. And really, Mr. DeGuerre, when I was a public defender, I saw my clients at the jail before every single court date. You say you got the file late Monday, but today is Wednesday. It doesn’t matter that this was so long ago that the PD’s office had six lawyers and five clients: no excuses.
It also sounds like Mr. DeGuerre can make just a little more effort in finding that transient, homeless witness you say can prove your innocence; you’d be amazed at what public defender investigators can dig up just by knowing that his name is “Mike Something.” I’m also going to suggest to Mr. DeGuerre that he make more efforts to negotiate with the District Attorney; Mr. DeGuerre, you should keep an open mind when the DA tells you that your client is a “monster” who should plead “as charged.” If the DA says that, and you agree, she will not ask for the maximum. You should think of that as a starting place for negotiations! That being said, I will give Mr. DeGuerre leeway to perform his due diligence. We can revisit this issue down the road if we need to. For now, the defendant’s Marsden motion is denied.
Congratulations! You made it! How do you feel?
If you happened to choose III.A. and would like a copy of the proceedings as proof of the only nice thing that judge has ever said to you, then you are out of luck. That record is sealed.
My client is facing trial for stabbing a rival gang member. In court, his neck tattoos and gang colors do him no good. Since he was the only other person at the scene besides the victim, he must testify on his own behalf; he is the only one who knows that he was defending himself.
This man almost bled to death in a prior incident involving the alleged victim.
The judge calls a recess midway through his testimony. I enter the holding cell to see how he’s doing before the jury enters the courtroom and the judge takes the bench. This man who has come within moments of death is shaking like a leaf at the prospect of making 12 white suburban dwellers believe his side of story.
Moments before the jury enters, I make an offhand remark within earshot of the district attorney that my client is a little nervous.
The district attorney snorts. “Didn’t your client almost die that one time? How is testifying scarier than that?”
I wished that I had responded with the following:
You’ve put me in a strange position. I have two options for answering your question. I could choose to explain to you why testifying is so frightening to my client. That would require me to spell out how the people in that jury box have never and will never walk in his shoes.
It might be easier for me to explain why death is comparatively less frightening.
I don’t pretend to have any knowledge of what happens after we die. No one has died and then returned to describe it for us. What I do know is that none of us were around for the 15 billion years or so before we were born. Stars formed, and their heat and energy created every atom of carbon, iron, and oxygen in our bodies. Those stars exploded, and the remnants formed into mellower, yellower stars. The remainder of that remainder formed planets. One of these planets had enough of that stuff sitting on its surface for life to form. And at the apex of this unfathomable process sits you, playing on your iPhone in boredom and annoyance, and I, hanging out with one of society’s untouchables and considering his temporal future with him.
So what I’m getting at is that as all this stuff is happening in the yawning abyss of space, neither of us were existing. The experience didn’t seem to hurt us any. I have no traumatic memories from my ponderous eons of non-existence.
I imagine that what happens after you die is very similar; I say this because this is my only frame of reference. And regardless of whatever happens after death, that “whatever” goes on forever. For eternity. For comparison, 15 billion years cannot even suck the distant after-vapors of eternity as it passes. Whatever death is, it is infinite. And so as my client lay crumpled against a lamppost those months ago after your alleged victim punctured his lung, and as his vision narrowed into tunnels as the ambulance screamed up the street, he caught one of the first glimpses that a person gets of the infinite before tumbling into its maw.
When you see the infinite, you see how everything else means very little in comparison. It is only when the marvels of medical science pull one back into the world of the living that one goes back to caring about his phone, his chain, his colors, his gang, his dope, or any of the pointless, transient things that preoccupy the blip of time between chasms of nothingness that we call “life.”
And that is why my client felt less fear as he was dying than he now feels at the hands of this jury. Death waits to welcome us all with open arms. That jury, holding the fate of his future, looks at him with fear and disgust. Can you imagine anything worse?
Do you know what’s even more difficult than dealing with someone who is outraged? It’s even more difficult to deal with someone who refuses to acknowledge that they are outraged and thus acting outrageously.
No, these are not clients that I’m talking about. This peculiarly irritating behavior only comes up when prosecutors find out that my client is an immigrant.
Unlike the prosecution, I don’t have the luxury of ignoring the immigration consequences that my clients face; the Supreme Court’s decision in Padilla v. Kentucky warns that my representation will be constitutionally defective if I fail to warn my client what the Feds will do to him because of any plea bargain. Immigration laws are barbed with hidden hooks that make someone deportable or excludable from the United States based on a single criminal case: domestic violence, substance abuse, and receiving a sentence of 1 year or more are all bases for deportation regardless of the length of time my client has been in the U.S. This is true whether they came willingly or were brought here by their parents, and whether or not they have any waking memories of their “home country.”
Thus, I’m obligated to ask the DA to make concessions that may minimize my client’s immigration consequences without denying the DA the punishment or charge that they want. Examples of these include:
These differences may seem minor, but they mean the world to my clients. In contrast, none of the examples above cost the DAs anything at all. However, my requests for these types of concessions are almost always denied.
My best example: a client of mine who had been in the U.S. for more than twenty years and the father of three American citizens, fell on hard times when his bedroom furniture store went under. A friend told him that he could make ends meet by selling small amounts of cocaine. Unbeknownst to him, this same friend was working as a “confidential informant” for the local narco cops. As a result, the only drug deals that this client ever completed were to undercover cops posing as buyers. This happened three times, resulting in three sales charges.
This client languished in custody for many, many months. He did not want a trial, because he had no defense. However, he did not want to plea because he knew that he would be deported back to the failed state from whence he came and never allowed to return.
I asked the DA for a number of comparatively minor things. The DA wanted a sentence of three years for cocaine sales. I offered three consecutive terms of 364 days (one per count) and requested that any reference to the specific controlled substance be deleted from the charging document.
Now, at this point, I must acknowledge that there are many (some of whom may be reading this) who would say that a cocaine dealer should not be given any mercy from the immigration authorities and should face the full consequences of their behavior. I understand why some would say that. And if the DA had simply responded to me by saying, “No, I want your drug dealer client to be deported,” I wouldn’t have been nearly as angry as I was.
What infuriated me was the sanctimonious, yet cowardly pretense of hearing the DA tell me he did not want my client deported, but that he had “no choice” in his actions. The first line of defense for a DA who does not actually want to take responsibility for a situation is to blame his or her supervisor. Again, my client is my ultimate boss; the DA has no client, and so their supervisors often fill that role. And it seems that an implicit part of a deputy district attorney’s job is to protect their supervisors from sounding too obvious when taking actions that say, “we want your client deported.”
I think this is why the response I got for this particular client sounded something like this:
Well Norm, I’ve asked my supervisor. I told my supervisor that your client has been here since before he could drive, and that his entire family are American citizens. But based on the facts of this particular case, we just don’t see a reason to treat your client differently from how we would treat a citizen.
I wished that he would have simply cut the shit and just said that they knew that my client would be deported and that they thought he and his family deserved it for slinging dope to an undercover cop. Because my client was, in fact, going to be treated differently for being a non-citizen; the trivial changes that I proposed would have made it more likely that he would be treated like a citizen. Refusing my proposal under the pretense of treating people fairly was, at best, slight-of-hand and, at worst, transparent bullshit.
Take ownership of the motives for your actions so that they can be discussed openly. That’s what is supposed to happen in a democracy, right? Apparently not, if you don’t have the right papers.
How often do you win?
Johnnie Cochran’s Ghost
Dear Late Mr. Cochran:
If by “win” you mean that I get to do a job I enjoy and that I think is meaningful, that I get to be surrounded by friendly colleagues and support staff, that I have supervisors I admire and who care about my development as an attorney, that my job includes a killer health insurance policy and requires a bitchin’ dress code, and that I can come home to my beautiful wife at a decent and predictable hour; then I win EVERY SINGLE DAY!
If by “win” you mean the number of times I can walk my guy out the courthouse door after a “not guilty” verdict, then I win very, very rarely. In fact, I wager that I have gotten more guilty verdicts than most of the DAs against whom I try cases. This is not unusual for defense attorneys who don’t get to cherry-pick their clients on the basis of jury appeal and likelihood of actual innocence. As a public defender, a client telling me, “I didn’t do shit!” is enough of a reason as any to take his case to trial. It might be a little more difficult to find a reputable private attorney to take a case based on indignation alone.
Personally, I think I should always lose and DA’s should always win. After all, they get to pick their cases and they get to plea bargain down to whatever will make the case settle, thereby avoiding a trial if the evidence is at all uncertain. If I can get my client a fantastic deal in that process, well, that doesn’t count as a win in the traditional sense, even if it’s a good thing for my client.
There is a lot of nuance in my job, so not every guilty verdict is a loss. Sometimes I try a case simply because the DA has not offered anything of value in exchange for my client giving up his constitutional right to a jury trial. The incentive to enter a plea is very low if the prison term offered is close to the maximum for the charges or if the charges he’s pleading to include “strikes” that will guarantee he will eventually serve a life sentence when he is released and given a chance to re-offend. If the DA’s offer is not interesting to my client, then what does he really have to “lose” by taking his case to trial?
As a public defender, I consider the following to be a “win,” in order of most victorious:
a “not guilty” verdict from the jury
a hung jury or mistrial – just as good as a “win” in my book because it accomplishes my task, annoys the DA, and I have a soft spot for anyone who can hold his or her ground under pressure
a partial acquittal, particularly if the dropped charges are a “strike” offense or carry a heavy sentence
a partial acquittal, if the dropped charges are the ones my client contested
any partial acquittal
a conviction on all charges, but where the final sentence is less than the pre-trial offer
a conviction on all charges, but where the final sentence is not much worse than the pre-trial offer
So there you go! I appreciate the question and as always, I welcome all questions and comments from my readers.
Under California’s Three Strikes law, defendants with two or more serious or violent felony convictions receive a minimum sentence of 25 years-to-life for a third serious or violent felony. However, the defense may argue a Romero motion, which asks the judge not to apply the Three Strikes law during sentencing. In his deliberation, the judge considers the facts of the current case, the defendant’s criminal history, and the defendant’s “character, background, and prospects.” The hearing on a Romero motion, which is infrequently granted, follows a ritualistic pattern.
And, in my head, the ritual goes something like this.
His Honor: Ave, Ave, now comes the formerly Accused, now Convicted, presenting himself for the Court’s mercy, garbed in the county-issued vestments of both protective custody and maximum security. Cursed is the snitch, for stitches he shall receive. Cursed is he who requires maximum security, and let him learn to correct his lawless ways whilst surrounded by those as dangerous as he. Counsel! Appearances, please!
Attorney for the District: Ave, Your Honor, for I represent the People of the State of California who are other than the Accused, now Convicted. We now present unto thee our young Acolyte, who is in his third year of law school, and who has been honing his skill in the sacred arts of shooting fish in barrels and confiscating sugary confections from the hands of babes.
Acolyte: Ave, Your Honor.
Norm: Ave, Ave, Your Honor, Norm DeGuerre for the Accused, now Convicted.
His Honor: Brother DeGuerre, thy Client presents himself as a supplicant before me, or would if his wrists were not bound by chains to his waist. Thy Client seeks the blessings of St. Romero, who many years ago, prayed for relief and received the miracle of mercy, for the court sentenced him as though he bore not the stains of having prior “strike” convictions. The Accused, now Convicted has been convicted of Robbery, and shall face a sentence of life despite the recently-passed Prop. 36.
Norm: Aye, Your Honor.
His Honor: We shall now begin the Recitation of Terrible Childhood.
Norm: Aye, Your Honor, I draw thy Honor’s attention to the absence of family or loved ones, who have missed all court dates for the Accused, now Convicted since his junior year of high school. Scars of flesh and wounds of spirit have rent my client into a hastily-assembled scarecrow of the man he could have been had he more money and one caring, competent adult.
His Honor: Now, the Affirmation of Chronic Substance Abuse.
Norm: Not since the party at Thy Honor’s law firm in 1982, when Thy Honor’s partners removed the mirror from Thy Honor’s office restroom, has such heroic quantities of Columbia’s Finest been consumed as was during the Convicted’s term on parole. But alas, the Convicted snorts not to celebrate, but to forget; and the Convicted spends not his disposable income, but his only income. Thy Honor’s campaign for the bench inspired thee to begin the 12-step purification rituals; alas, the Convicted has no campaigning or politicking for which to abstain.
His Honor: And now, the Plea to the Angels of the Eighth Amendment, in which Counsel will condemn the proposed life sentence as cruel and unusual. Make the plea now so that the Accused, now Convicted’s appellate counsel may brief later what I shall now ignore.
Norm: Your Honor, the Accused, now Convicted did violate the Seventh Commandment, in that he did take two tall-boys of St. Mickey’s Ale out of the refrigerator at the Try-N-Save liquor store, and did try to smite the security guard who declared him a “fucker” and who attempted in vain to wrest the tall-boys from the Convicted’s shaking hands. But your Honor may bestow St. Romero’s blessings for this nefarious misdeed and sentence him to 20 years, and not for the entirety of his life. After all, is the consummation of malt liquor not already a cruel and unusual enough punishment for Thy Honor?
His Honor: And now, Acolyte, commence the Padding of Thy Resume.
Acolyte: Your Honor, I entreat Thee first to gaze in horror upon the tattoos upon the Convicted’s face: Eww. Shine thine eyes upon the Convicted’s numerous parole violations, for they show the Convicted needs more time in prison so that he can learn the lessons that prison failed to teach. And Your Honor, if ye would, muster stale outrage for his burglary conviction from 1992 and his making of criminal threats from 1996, for in those years the Accused, now Convicted did take a Panasonic television set and later hurt someone’s feelings with empty promises of violence.
His Honor: Counsel, prepare thyselves for my ruling:
The conclave of voters hath spoken, and they hath spoken that Three Strikes shall be the law. Terrified they were of rapists stealing children from their homes in the dark of night, and so it shall be that the Wrath of Three Strikes shall smite those at whom we are merely angry as well as those of whom we are scared. If St. Romero’s mercy were granted to all whose woes would have been lifted during childhood by the healing touch of more money and one skilled parent, Three Strikes would smite hardly anyone at all. The plea for St. Romero’s mercy has failed, and the Convicted, now Sentenced shall dwell in a pit of despair to be determined by the Department of Corrections of the State of California. This pit shalt not be within 12 hours ride by Greyhound coach of his family, because really, Brother DeGuerre, as you’ve so pointed out, what are the chances of their visiting anyway? Also, this pit shalt not be rendered humane through adequate taxes, because the conclave of voters hates those. Verily, the conclave despises rendering unto Caesar sufficient ducats to pay for the sentencing laws they demand.
We will now commence the Washing of Hands. The conclave of voters has spoken, and this court shall not accept responsibility for their frenzied whims, nor the perceived disproportion of the court’s sentence to the defendant’s conduct. Verily, as all in attendance can see, I myself learned to make principled decisions long ago. I am only giving the defendant ample opportunity to learn the same lessons.
This concludes the Washing of Hands. You are now dismissed.
Go in peace, serve the Lord.