The Fall of Judge Persky: A Cautionary Tale

Today, voters in Santa Clara County will vote to recall Judge Aaron Persky. I predict that he will be recalled despite his cautious efforts to rehabilitate convicted sex offender Brock Turner precisely because of his unwillingness to use California’s dangerously bloated prison system as a remedy for sexual assault, and because his ouster will be expedient for the political establishment of which he probably considers himself a part.

This tale has four key actors: Emily Doe, Brock Turner, Judge Persky, and Stanford professor Michele Dauber.

I. The People v. Brock Turner

On January 18, 2015, “Emily Doe” and her sister attended a party at the Kappa Alpha fraternity house on the Stanford University campus. Both the victim and her sister consumed hard alcohol before and during the party. Outside the fraternity house, Ms. Doe and her sister met a group of male students. One of these students was Brock Turner, a 19-year-old freshman admitted to Stanford on a swimming scholarship. Turner had made aggressive overtures to several women at the party, and attempted to kiss Ms. Doe’s sister while outside the frat house. Ms. Doe’s sister left the scene to help a friend of hers who had drank too much alcohol at the same party.

At approximately 1:00 a.m., two graduate students cycled past the Kappa Alpha house and saw Emily Doe lying unconscious and motionless behind a dumpster. They also spotted Turner thrusting his hips on top of her. The students – Peter Lars Jonsson and Carl-Fredrick Arendt – called for Turner to stop. Turner stopped and fled; Jonnson and Arendt gave chase and held Turner on the ground while other students found Emily Doe and called the police.

Emily Doe was found unconscious, her underwear removed and her dress pulled up to the waist. Police took her to Valley Medical Center, where she regained consciousness at approximately 4:00 a.m. Two nurses performed a forensic examination of the victim’s body, finding “penetrative trauma” to the victim’s genitals and abrasions and erythema on various places on her body. A woman’s blood was also found under Turner’s fingernails.

Judge Aaron Persky presided over Brock Turner’s trial in the Palo Alto branch of the Santa Clara County Superior Court. Turner’s trial began on March 14, 2016. On March 30, the jury unanimously found Turner guilty of assault with intent to commit rape and digital penetration of an unconscious person.

II. Turner’s Sentence Goes “Viral”

Prior to Turner’s sentencing, Santa Clara County’s Adult Probation Department prepared a sentencing memorandum for Judge Persky’s consideration – as it does in every felony case. As required by law, Deputy Probation Officer Monica Lassetre interviewed both Brock Turner and Emily Doe.

Turner’s statement to Probation revealed flashes of genuine remorse. He stated:

“Having imposed suffering on someone else and causing someone else pain – I mean, I can barely live with myself. I can’t even get out of bed in the morning. I think about it every second of every day. Her having to go through the justice system because of my actions just…it’s unforgivable.”

However, Turner also attempted to blame “campus drinking culture and the sexual promiscuity that goes along with that” for his actions rather than placing the responsibility upon himself not to sexually assault an unconscious person. Turner went on to say that if Judge Persky were to grant him probation supervision instead of a state prison sentence, he would comply with all the terms and conditions that would apply, including sex offender treatment and registering his address as required by law of all convicted sex offenders.

Emily Doe also gave a statement to probation on what she felt would be an appropriate sentence for Turner. In her statement, she stressed the pain of having to testify at Turner’s trial. “I still feel a lot of anger because of what he put me through at trial…He attacked my personal life in whatever way possible and in the end, it didn’t work.” However, the victim also expressed skepticism as to what good, if any, would come from sentencing Turner to prison:

“I don’t feel like I won anything…I want him to know it hurt me, but I don’t want his life to be over. I want him to be punished, but as a human, I just want him to get better. I don’t want him to feel like his life is over and I don’t want him to rot away in jail; he doesn’t need to be behind bars.”

Across California, judges routinely rely upon such sentencing memorandums and often adopt their recommendations in their entirety. At the conclusion of her report, Ms. Lassetre cited Turner’s lack of prior criminal record, strong family support, and low probability of re-offending as a legal basis to grant Turner 3 years of probation supervision and impose a moderate county jail term – in lieu of a longer period in state prison – as a condition of his probation.

However, very little about Turner’s actual sentencing hearing was “routine.” In stark contrast to her earlier statement to Ms. Lassetre, the victim impact statement that Emily Doe read in court was more than 7,000 words. Emily began by recounting the horrors of waking up in the hospital, covered in dirt and pine needles, after having lost any memory of the past few hours. She described the awful experience of having to learn the details of her own assault from news reports. Emily then blasted Turner for claiming, during his trial testimony, that he believed Emily to be a conscious, willing, consenting participant in her assault behind a dumpster.

Most of Emily’s ire, however, was focused upon Turner’s lack of contrition and having to go through the process of testifying at Turner’s trial. Emily Doe claimed that Turner’s attorney had “pummeled” her with “narrowed, pointed questions that dissected my personal life, love life, past life, family life, inane questions, accumulating trivial details to try and find an excuse for this guy who had me half naked before even bothering to ask for my name.”

Although Turner’s trial had already gathered substantial attention from local news media by this point, Turner, Judge Persky, and Emily Doe attracted national attention when Buzzfeed published Emily Doe’s statement within hours of the sentencing hearing. The campaign to recall Judge Persky began almost immediately after Persky followed the probation department’s recommendation and sentenced Turner to 6 months in county jail as a condition of his 3 years of probation supervision. In the days that followed, Emily Doe’s statement was republished on countless websites and read aloud, in its entirety, on numerous news programs and by elected representatives.

III. The Role of Professor Michele Dauber

The effort to recall Judge Persky cannot be understood without accounting for the role of Professor Michele Dauber, the Chair of the Recall Persky campaign and its most prolific spokesperson. Ms. Dauber teaches at Stanford Law School, despite never having practiced law as an attorney (though she holds a doctorate in sociology). She and her husband, Ken Dauber, an engineer at Google, made their first foray into local politics in 2011. Mr. Dauber won a seat on the local school board by agitating for reforms in the wake of a rash of teen suicides; the couple founded a non-profit called We Can Do Better Palo Alto to push for these same reforms. An avid supporter of Hillary Clinton’s bid for the presidency, both she and Judge Persky attended the same Democratic Party fundraisers.

However, one of Professor Dauber’s chief preoccupations has been eroding the due process protections given to Stanford students accused of “sexual assault” in Title IX hearings. Professor Dauber has publicly leveled two main complaints. First, Professor Dauber believes that Stanford’s definition of “sexual assault” – an offense whose penalty is expulsion – is too narrow. Sexual assault, according to Professor Dauber, should include more than forcible penetration and penetration of an incapacitated person. Sex with an intoxicated person, sexual battery (non-consensual touching of the breasts or buttocks), and sex without affirmative consent would also fall under Professor Dauber’s definition of “assault” and would warrant expulsion. Second, Professor Dauber opposes requiring a unanimous vote among hearing officers to sustain findings of sexual assault. Professor Dauber has publicly described herself as a “family friend” of Emily Doe, Brock Turner’s victim. Her interest in the Brock Turner case blossomed into a signature gathering effort toward Judge Persky’s recall within weeks of Turner’s sentencing.

Throughout the recall campaign, Professor Dauber has taken it upon herself to act as Emily Doe’s public voice. Having previously relied on The Guardian and other news outlets to take her grievances with Stanford Title IX procedures beyond the Stanford administration, Ms. Dauber plied her media savvy to submit Emily Doe’s victim impact statement to Buzzfeed and other media outlets. Emily Doe’s statement, as previously mentioned, echos many of Professor Dauber’s grievances about having to submit claims of sexual assault to cross-examination. In her written statement to Glamour magazine – in response to being named their Woman of the Year, Emily Doe shared an almost verbatim affection for journalist Ashleigh Banfield as Professor Dauber expressed in her 2016 interview with Democracy Now. When Stanford chose to convert the site of Emily Doe’s attack into a “scenic spot” with a memorial plaque, Stanford proposed the following quotes from Emily Doe’s famous letter:

“I’m right here, I’m okay, everything’s okay, I’m right here.”

“You are beautiful, you are to be valued, respected, undeniably, every minute of every day, you are powerful and nobody can take that away from you.”

“On nights when you feel alone, I am with you. When people doubt you or dismiss you, I am with you. I fought every day for you. So never stop fighting, I believe you.”

Emily Doe’s “representatives,” including her lawyer, rejected these and proposed an alternative quote that a Stanford counselor feared would be triggering for sexual assault survivors. Professor Dauber demonstrated her familiarity with these discussions by confirming to media outlets that Emily Doe had decided to not allow any quote at all to be used. At nearly every turn, Professor Dauber has exerted ownership of Emily Doe’s words.

IV. Silicon Valley Democrats Exploit “Me Too”

The Recall Persky campaign has vigorously exploited the Me Too movement and channeled it toward Judge Persky’s recall. Me Too sprang from the revelations of movie mogul Harvey Weinstein’s decades’ worth of sexual harassment and assault of Hollywood actresses. These allegations lead to a host of others leveled at various public figures, including former NBC Today host Matt Lauer, former Minnesota senator Al Franken, comedian Louis C.K., actor Kevin Spacey, and former CBS This Morning host Charlie Rose. The hashtag #metoo was popularized by actress Alyssa Milano, and since then thousands of women have shared their stories of sexual harassment and assault on social media. However, no activist within the movement has highlighted the plights of the millions of women who work minimum wage jobs in hotels, restaurants, or retail outlets; several actors and actresses have toppled looming media figures with their stories, but little has been said or done by this movement in places where most women actually work.
In her 2016 interview with Democracy Now, Michele Dauber proudly declared that Emily Doe’s victim impact statement was a “harbinger” of the Me Too movement. Recall Persky rode this momentum to collect over $1,200,000 in donations; many of these donations have been made in amounts of $1000 by residents of the affluent alcoves of the San Francisco peninsula and Marin County.

The local and national Democratic Party leadership has seen Professor Dauber’s war chest and has lined up at the proverbial trough. Senator Kirstin Gillibrand of New York – considered by many to be a front-runner in the coming 2020 presidential primaries – has endorsed the Recall Persky campaign, along with more than four dozen national, state, and county level Democratic lawmakers. Silicon Valley’s labor aristocracy – SEIU Local 521 and the South Bay Labor Council – have also endorsed the campaign and have fully adopted the same tactics as the Recall Persky campaign in their own election mailers by smearing its disfavored candidates with sexual harassment allegations, rather than touting the importance of unions to working class well-being and contrasting the working class’ interests with those of right-wing candidates (as one might think a labor union would do).

V. An Uninspiring Opposition

Pre-election polls suggest that the recall campaign enjoys a tremendous lead going into election day.

A major reason for this has been the speed and skill with which the Recall Persky campaign has skewed and distorted Judge Persky’s record. The Recall Persky campaign has combed through the thousands of cases that Judge Persky has handled as a Superior Court judge, found 6 that could serve as fodder for campaign mailers and talking points, and distorted them to sound as though Judge Persky has routinely showed leniency in sexual assault cases, especially where the defendant is white or otherwise “privileged.” The opposition’s website debunks these claims in some detail, but the best example comes from an op-ed penned by Michael Vitiello of McGeorge School of Law and published in the Stanford Daily:

“According to recall supporters, People v. Ramirez involved a minority defendant, similar to Turner, but whom the judge sentenced to a three-year term of imprisonment. A part from many other factors that may have explained disparate treatment (not visible based on the sentence), Ramirez pled guilty of a crime that required a mandatory term of imprisonment; Turner’s crime did not require prison time. The other examples cited by the recall supporters also failed to support a claim of Judge Persky’s racial bias.”

Against the lies and distortions spread by the Recall Persky campaign, the opposition effort has never received as many microphones with enough time to refute them in the minds of most voters. To paraphrase an old cliché, lies travel halfway around the world before the truth finishes putting on its shoes.

However, the main reason for the recall’s (anticipated) success is this: the political establishment and its affluent, upper-middle class voter/donor base has demanded Judge Persky’s ouster. The recall’s opposition has not rallied a working class voting base to outweigh the recall’s supporters.

The opposition to Persky’s recall include Jeff Rosen, Santa Clara County’s elected district attorney, Molly O’Neal, the county’s appointed Public Defender, the Santa Clara County Bar Association, retired Judge LaDoris Cordell, and a host of attorneys and sitting/retired judges. Their chief argument against the recall resonates with all the platitudes one would find in a high school government textbook; an independent judiciary, one that upholds the rule of law and apply it to individuals regardless of public pressure, is necessary to our scheme of democratic governance. “Judicial discretion” is the banner most frequently waived against an “unprecedented attack.”

However, criminal defense lawyers, their clients, and their clients’ families have seen “judicial discretion” ruin lives and tear families apart. Before 2012, California’s Three Strikes law and later legal decisions gave judges “discretion” in deciding whether to dole out life sentences for felonies that were neither “serious” nor “violent.” California’s prison population swelled and increasingly skewed toward elderly inmates in need of major medical care as they aged. In 2006, the prisons’ healthcare system was placed under federal receivership as one inmate died per week, on average, for preventable medical reasons. “Judicial discretion,” historically, has been no friend to the minority and working class people on its receiving end.

Furthermore, the recall of Judge Persky is hardly “unprecedented.” In 1982, the voters approved Proposition 8, the so-called “Victim’s Bill of Rights,” which repealed any and all protections under the California Constitution against illegal searches and seizures and required judges to presume the defendant guilty for purpose of setting pretrial bail. In 1986, reactionary forces lead the campaign to oust California Supreme Court Justice Rose Bird during her judicial reelection bid in response to her commutation of too many death sentences. In 1994, California passed two versions of its Three Strikes law. The existing voting blocks in California have always voted to erode the rights of the accused, often in reaction to one sensational news story involving a photogenic victim. These laws almost always have a victim’s name attached to them and have wrought unintended havoc on poor, working class, and minority communities. Alternative voting blocs had to be energized among these marginalized groups, and the anti-recall campaign has done nothing to do this. Instead, both the recall campaign and the opposition hosted a single debate at an affluent Los Altos country club, in which a professor of high finance stepped in for Professor Dauber to debate Judge Cordell.

And so we are left with the ultimate question. A victim of sexual assault had her claims taken seriously and investigated by law enforcement. Brock Turner, the perpetrator, was brought to trial and found guilty by unanimous jury verdict. Although Brock Turner’s sentence was highly unpopular, it was not only legal, but recommended by Adult Probation after interviewing both Emily Doe and Brock Turner. Brock Turner will now live in perpetual infamy as a registered sex offender for the rest of his life. After the sentencing, the California legislature amended the Penal Code to stiffen the penalties for the felonies for which Turner was convicted.

How is this not a success story? The Democratic Party in Silicon Valley needed a scapegoat to energize the affluent, petit-bourgeois voter/donor base in light of its demoralizing 2016 loss of the presidency to David Duke’s favorite gameshow host. As always, the people who will be sentenced more harshly by judges afraid of being “Persky’d” at the ballot box are far removed from this upper-middle class social milieu. Due Process and the rights of the accused are of little interest to Professor Dauber in particular and her social class in general. This voter base seems to labor under the notion that stiff prison terms will serve as tough medicine for sexual assault and rape culture.

Because there is no sexual assault or rape culture in prison.


Dear Norm: How Do You Defend Those People? (Part 3,223)

Dear Norm:

How do you defend those people?

No, I don’t mean “how can you live with yourself ensuring due process for people who have done really really bad things” or anything like that. I mean, how do you actually do it? When you have a client accused of something awful, and he/she has next to nothing by way of a defense, how do you defend them anyway?


Asking for a Friend


Dear Asking:

This question hits close to home. As mentioned in previous posts, I’m in the midst of the most serious trial tour that I’ve ever had. Every so often, you hear a story in the news where your jaw drops and then you check the locks on all your windows and doors… and then you call your grandma to tell her to check the locks on all her windows and doors… I will spare you the details, but suffice to say I have a new client who did something very, very bad. Because he was arrested at the scene of the crime, there is no identification issue or shoddy detective work that will let me claim that someone other than my totally innocent client must have done this heinous thing.  With all of the different charges and enhancements, this client faces a sentence of more than 100 years to life.

So where does a public defender start in defending this client?

First, I mentally prepare myself for the very real possibility that I will be stuck taking this case to trial, despite the lack of defense and withering, death-ray stares that my client and I will face from the jury during the entirety of the trial. The assigned prosecutor may not want to make my client any sort of plea bargain. “This defendant is the worst of the worst,” Mr./Ms. District Attorney may say, “and he deserves nothing short of a life sentence.” This may be true, but it does not relieve me of my ethical obligation to safeguard my client’s rights unless he is offered something in exchange for giving them up. It is not in my client’s legal best interests to simply plead to a life sentence out of hopelessness, and I will never tell him to do so.

Second, I drastically recalibrate my sense of what a “victory” would be in a case like this. I assemble all of the facts that weigh in favor of conviction, find the handful of “good facts” that weighs against a particular charge/allegation, and then decide which charges or enhancements I can argue against with a straight face; even in the deeply horrendous cases, prosecutors still overreach and charge more things than they might be able to prove. Then, I ask myself “so if by some improbable happenstance I manage to beat the charges I’m contesting, what does my client get?” For the client described above, I define “victory” as beating the two enhancements that carried a mandatory life sentence so that, in theory, I can try to convince a judge not to impose a discretionary life sentence on the remaining charges. Yes, “victory” is a relative term.

Third, I must earn enough trust from this client so that if an opportunity does come for him to save his own life, he’ll heed my advice and seize that opportunity. I sit with him in the jail interview room and listen to his half-hearted denials of guilt. Rather than cross-examine him and dissect his claims for implausibility, I gently remind him that ultimately, a jury would be asked to compare the victims’ word, the medical evidence, the photographs, and the client’s first version of events that he shared with the police to this new, second version of events that he now offers me. I see his face sink, ever so slightly, with realization; I have succeeded in grounding my client in the reality of the evidence against him without moral judgement or direct confrontation.

Fourth, I must give the client something that he gets to decide for himself. Clients hurt themselves most when they feel out of control over their legal situation; such clients feel “railroaded” and see their public defender as just another piece of the machine that is pushing them toward a certain outcome. When this happens, the client resists the public defender’s advice just for the sake of resisting the process as a whole. I remind the client that the decision to go to trial and the decision to testify are his and his alone, but I also remind him that he has the power to set a more realistic goal for himself. For example, for a client looking at a life sentence, pleading to any kind of determinate prison term, even if that sentence is dozens upon dozens of years, is still better than a “life” sentence; prisoners with (theoretical) release dates are categorized differently and are housed in less restrictive settings; such a situation would still guarantee a “life” sentence as a practical matter, but the quality of that “life” in prison would be substantially better. With this in mind, I tell the client that he has the power to “offer” the district attorney a plea to many dozens of years in lieu of a life sentence in exchange for not making the victims testify in court.

Before trial is the time to get creative to do whatever I can to make my client’s experience better for him. Like I said above, any sentence with a number is better than “life.” But there might be other things to consider. A coworker once told me a story of a man accused of felony child abuse causing death, a charge that carries a sentence of 25-life. Unlike first or second-degree murder, the crime of fatal child abuse does not require any particular intent, let alone the intent to kill that is required for a murder charge. Regardless, my coworker’s client agreed to plead to one count of second degree murder. Why? Because not only does second-degree murder carry a lesser sentence (15-life), but the charge itself would guarantee a less dangerous time in prison than a charge of child abuse causing death. This was arguably a better outcome (When your cellmate asks you, “So whadda ya in for?” What would you prefer to tell him?), and the client had the clarity of mind to make this deal because it was something that he felt he had the power to do in the universe of drastically-narrowed possibilities in which he found himself.

Fifth, I can make a pitch to the District Attorney on behalf of my client. The key is to remind the DA that a person is not born with the urge to…God, I can’t even say it, but such a person can only be made. Granted, most people with terrible childhoods and mild mental retardation do not go on to do the things that my client did. However, a substantial part of my client’s childhood was spent holding a gun in a closet and listening for signs his mother’s john was getting out of control. We can’t pretend that this had no impact at all on the adult he became. I can make the argument that if my client does not deserve mercy now, he probably did at some point in his life, and the things that happened to him in between were rarely, if ever, under his control to prevent.

Sixth, if this case does go to trial, there are a handful of tricks for losing with style and dignity.

  • Consider waiving opening statement; opening statements can be treacherous things in that if you promise the jury that the evidence will sound a certain way, there is a real possibility that the evidence will come in much worse than expected. Sometimes it is best to say nothing up front, let the wave of awful wash over you, and then attempt damage control during closing argument. Also, defenses sometimes “pop up” if the district attorney screws something up.
  • During the victims’ tearful testimony, get the information you need from them as gently as possible. During closing argument, accuse the district attorney of exploiting emotion and sympathy while holding yourself out as the sober, rational alternative.
  • Make objections under the United States Constitution, and not just the California Evidence Code; maybe your client will have a chance at tying up the system in federal post-conviction litigation if he preserves a “federal issue” in the record.


Finally, I document every decision that I make in the case as well as the reasons for it. My client will be convicted, an appellate lawyer will be running a fine-tooth comb through the record of the trial, and if I screwed something up so badly that my representation was constitutionally defective, then appellate counsel can (and should) argue this to the appellate court. Before actually presenting this argument to the court, appellate counsel will contact  me informally and ask me questions about why I decided to conduct this client’s defense the way that I did. As unbelievable as it may sound, this will not be my last truly awful case, and not every decision or its rationale will burn itself into my mind. If can’t defend myself, my client’s next lawyer will argue that I didn’t defend my client either.

Does that sound simple enough?


Respectfully Submitted,

Norm DeGuerre

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

Brushing Off the Dust

To my readers, passersby, and criminal justice enthusiasts:

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

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

Thank you in advance for your continued interest.


Norm DeGuerre

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

Dear Norm:

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

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

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


Abandoned Client


Dear Abandoned,

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

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

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

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

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

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

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

First Tale of Woe

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

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

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

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


Second Tale of Woe

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

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

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

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

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

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

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

The best private attorneys are often former public defenders.

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

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

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

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

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

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


Good luck,

Norm DeGuerre

Criminology 201: Selected Topics in Disorganized Crime

Criminology 201: Selected Topics in Disorganized Crime

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

Like this one:


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

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


Question 1: Multiple choice, choose the correct answer.

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

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

       minor must cease his violations of state and federal drug laws

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

       addiction to a Schedule 1 controlled substance

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

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

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

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

Question 2: Multiple choice, choose the correct answer

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

a)    Wearing baggy jeans

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

c)    Spraying gang graffiti on a highway overpass

d)    None of the above

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

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

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

Question 3: Short answer

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




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

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

Question 4:

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




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

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

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

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

Question 5: Essay

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

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

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

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

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

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

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


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

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

Respectfully Submitted,

Norm DeGuerre

A Brief Foray Into Self-Promotion

Dear Readers:

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

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

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

Thank you again for reading.

Respectfully Submitted,

Norm DeGuerre