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

Dear Norm:

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

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

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

Help,

Abandoned Client

 

Dear Abandoned,

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

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

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

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

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

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

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

First Tale of Woe

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

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

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

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

 

Second Tale of Woe

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

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

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

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

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

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

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

The best private attorneys are often former public defenders.

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

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

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

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

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

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

 

Good luck,

Norm DeGuerre

How do I know if my lawyer is doing a good job?

Dear Norm:

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?

Sincerely,

Concerned Consumer

Dear Consumer:

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.

  •  Ask for a summary of every investigative report. You might be unpleasantly surprised by the amount of information that has been collected against you. It will also give you an opportunity to guide your lawyer toward information that might rebut the prosecution’s case.
  •  If you have witnesses (that is, anyone who might have helpful information), give your public defender as recent and accurate contact information as you can. Your public defender will be in mild disbelief when you tell him that this witness is someone you have known for years without, somehow, learning his last name.
  • If alcohol was involved, consider going to AA meetings and keeping an attendance record. AA leaders will ask for sign-off sheets at the end of meetings.
  • Start rounding up whatever character references you want the sentencing judge to read. By character references, I mean letters by people describing all of the good things that you’ve been up to in the community aside and apart from this case. These are, effectively, pleas for leniency to be considered by the judge and district attorney at the time of sentencing.
  •  Feel free to ask whether a proposed plea bargain is a “good deal” before deciding whether to take it. Our advice will be quite candid.

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.

Respectfully submitted,

Norm DeGuerre

A Tourist’s View of County Lock-Up

Burnt hot dog water.

That’s the first thing I smell when I enter any of our county’s jails and the last thing I remember as I walk out. White paint did nothing to prevent the old bricks from absorbing the fetor of thousands upon thousands of high-sodium meals, wheeled through the jail hallways over the course of decades. The stench escapes from the walls and creeps into my suit.

Spring turns to summer, but seasons have no effect on the stale air inside the county’s high-security jail facility.  Since its construction, no breeze has ever entered. Footsteps are the only force to disturb the vapor of poached Spam.

This particular jail site sits 20 minutes or so outside of the city, a trip that can (and frequently does) take up to 40 minutes in heavy traffic. I arrive on a warm morning in mid-May to visit a client who will be starting his trial in less than 48 hours.

I notice the stench even before I notice the harsh surroundings. The walls are white, or were at some point. The floor tile is white, or was at some point. The fluorescent lights above are white, save for a faint hue of blue. For these inmates, every open-eyed moment feels like the middle of graveyard shift at the world’s dustiest hospital.

Each cell block here is separated by an outdoor asphalt path; its vicious heat releases up through my shoes as the sun beats down on my head. It is especially uncomfortable in a suit and tie. However, finding shade comes with the boiled bologna miasma that permeates every enclosed area in the jail.

This is my third attempt at a pre-trial visit. My client will be testifying on his own behalf so I must prepare him for the DA’s cross-examination, and time is running out. My first attempt was with a colleague who would play the role of the DA in the cross, to get him used to a stranger asking him tough questions. But there “were no available interview rooms” so we were turned away. This happened a second time.

I ask the nearest of three lounging correctional officers to see my client, hoping they are not on lockdown and thereby making my trip in vain. I repeat my client’s name three times. The CO shows me to one of the empty interview rooms. The plastic chairs look like grown up Fisher Price furniture, but with bolt loops in the floor with several sets of leg shackles held to it. A maximum security client would have these around his feet for the entirety of my meeting with him. I semi-anxiously bat the chains around with the toe of my shoe until I see my client coming down the hallway; his chains clink heavily but do not echo against the walls.

The meeting with my client goes well. The kid does a good job. He sticks to his story, which fortunately makes sense. I throw myself thoroughly into doing my best DA impression (“So are you saying that YOU’RE the victim here?!”) and temporarily forget the habitat to which my client will return after I leave. When we’re done, I stand, shake his hand as I say goodbye, and turn to leave as quickly as I can hoping my client won’t take my haste the wrong way.

I take deep breaths of fresh air as I walk back to my car, which has been parked uncovered in the afternoon sun. When it’s all over and as I prepare to be slapped by the oven-hot heat when I open the door, I always thank the universe for the good fortune that at least I get to go home.

Respectfully Submitted,
Norm DeGuerre

How often do you win?

Dear Norm:

How often do you win?

Sincerely,

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:

  • an outright dismissal, which spares my client the stress and exposure of a trial
  • 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.

Respectfully submitted,

Norm DeGuerre

Did you ever want to be a DA?

Dear Norm:

Did you ever want to be a DA? Doesn’t part of you wish that you prosecuted criminals rather than defended them?

Sincerely,

Buford T. Justice

Dear Buford:

Once upon a time, I did want to be a DA. As of the second year of law school, I knew that I had little interest in helping companies amass wealth by suing each other over obscure patent rules. Also, part of me doubted that my personality would mesh with the ethos of a big law firm.

I’m sure that my regular readers will find that last part absolutely shocking.

So I knew that I wanted to do criminal law and that I wanted to do jury trials. The only question was whether to be a DA or a defense lawyer. Being a DA seemed easy to conceptualize, so I intentionally sought work with a public defender’s office over the summer to get an idea of what that side looked like.

After two weeks working at the PD’s office, I never thought twice about being a DA. The idea of nailing the “bad guys” may be fun, but in the process I knew I’d have to put a lot of poor people in jail. My “a-ha!” moment came when I realized that many of the sentencing laws that we passed to protect us from people we were scared of were actually being used against people who we were simply mad at. I saw how the Three Strikes law was used against shoplifters or crank dealers who sold to their junkie friends far more often than rapists, kidnappers, armed robbers, or other really “scary” people.

What shocked me most was that most DA’s were never allowed to do what I considered “the right thing” on a case (ie: reducing the charge, offering a lower sentence) without meekly seeking his or her supervisor’s approval. In contrast, my client is ultimately my boss – he or she decides whether to take a deal and whether to testify at trial. I get to make lots of other decisions, but the most important ones belong to my client and my client alone.

Unfortunately, DAs take marching orders from their supervisors, and apparently one does not become a DA supervisor without being a small-minded, wrathful asshole. (Seriously – these are really unpleasant people.) The DAs who are sharp, easy to negotiate with, pleasant, punctual, prepared, who know the law and don’t appear personally offended when I do my job: those guys don’t get promoted.

I like that my decision making process about a case is simpler than a DA’s; I am obligated to advise my clients as to what is in their best interest. Beyond that, the ultimate decision-making power belongs to my client, and he or she is under no obligation to take my advice. So once my client decides what he or she wants to do, my only obligation is to continue to pursue his or her legal interests as best as I am able.

There is a disparity between what we think DA’s should do and what they actually do. In theory, a DA is tasked with weighing all of the mitigating and aggravating factors in a case and then deciding the charges and plea offer based on a concern for overall justice. In reality, DA’s are “just following orders” from supervisors who have no connection with the case and who bear no personal consequence for their decisions. In theory, DA’s are the ones who put the “bad guys” in jail. In reality, they put whoever they can in jail and then call them “bad guys” after. And I found I would rather spend my day trying to keep everyone out of jail than finding vulnerable members of society, calling them “bad” and then putting them in jail.

Remember that minorities are overrepresented in the prison system. And I can tell you from experience that at any given time, our local juvenile hall has between one and three white kids being held for trial. This is one of the end products of marching to a supervisor’s orders. If DA’s are “just following orders” on which cases to pursue, they’re also “just following orders” on which cases to settle or dismiss.

I’ll give you an example.

A few years ago, Meg Whitman’s son was arrested for assaulting a woman in a bar which caused great bodily injury (Ms. Whitman is the former CEO of Ebay, current CEO of Hewlett Packard, and failed gubernatorial candidate). Apparently, Griffith Harsh V (yes, actual name) pushed this woman, causing her to fall and break her ankle. There were several witnesses, one of whom was a bouncer. Now, if I put my “DA hat” on, I can say that this was a solid case. It’s a felony! It’s even a strike! There was a credible witness (and the only witness in the bar who probably wasn’t drunk)! As a prosecutor, I would love to try that case. So why was it “resolved” with an outright dismissal in some private, back-door deal?

If I were a DA, I would hate letting rich, white sociopaths get away with serious societal harm even more than I would hate going after poor people and minorities for petty crimes. It happens all the time. And that is not justice.

And that just wasn’t how I wanted to practice law. So to answer your question, yes I did want to be a DA for a little while. And then I got over it.

As always, I welcome questions and comments from my readers.

Respectfully Submitted,

Norm DeGuerre

Dear Norm…

Dear Norm:

How do you defend people when you know they are guilty?

Sincerely,

Gill T.

Dear Gill:

Believe it or not, I appreciate this question. I appreciate it every time it is asked, because it gives me the opportunity to correct what I expect are cherished misconceptions about how our “justice system” actually works.

Your question is more complex than you may have expected. There are both practical and philosophical ways to understand my duty to defend the accused.

1) Just because a client is guilty of SOMETHING doesn’t mean he’s guilty of EVERYTHING the DA has accused him of doing. On the night of their respective arrests, my clients were likely not involved in the type of activity that would be considered “innocent.” Yes, one client may have kiestered (yep, it’s a verb) several grams of crystal meth into the jail, but he insists that it was for his own “personal” use. A client may have stabbed a rival gang member in the stomach and then in the neck, but the screeching of his brakes before he jumped out of his car to do the deed shows that it was hastily-conceived murder, not “premeditated” murder. There are many ways for a DA to charge the same act, and the punishments vary wildly depending on which penal code sections they decide to hurl at my client. Often, the state will accuse my client of the most that they think they can convince a jury into believing, not what my client actually did. (So not fair!) If the DA’s office charged my clients with what they actually did, many of my clients would likely confess and thereby save a whole pile of tax dollars. Just because my client is guilty of something doesn’t mean that he’s guilty of everything he’s accused of doing. And that’s where I come in.

2) The Sixth Amendment to the US Constitution guarantees the accused the right to counsel. An additional two rights belong to the client and the client alone: the right to a jury trial (or to plea to the charges), and the right to testify (or not) at that trial. In order to make those rights more than lifeless scribblings on discolored parchment at the National Archives, the court appointed lawyer needs to table his or her tender sensibilities and find something worth saying in the event that your guilty client decides that he doesn’t want to plea. Basically, how I feel about my client is completely irrelevant to the job I have to do.

3) When you spend enough time with a person, especially in a confined space, it is fairly easy to remind yourself that this human being is not different – in any meaningful way – from every other human being that you have known. When my clients share even a tiny sliver of their life story with me, I quickly realize that very few of their personality defects or social pathologies would not have been remedied by having access to more money and at least one caring adult during their formative years. It is not uncommon for people who are abused to later abuse others or to be a victim of abuse. (This isn’t true of everyone, but the more disadvantaged a person is, the likelier this outcome will occur.) So my client beat up a rival gang member, and the other kid almost died. I admit, that’s pretty bad. But where was the “justice” system when my client’s stepdad was beating him as a 13 year old while his mom looked on? Why weren’t my tax dollars being used to educate him so that he has legitimate opportunities for employment? What “choices” did my client actually have to avoid his current situation? Answer this question again knowing that minorities are overrepresented in prison populations. Shouldn’t his punishment be reduced in proportion to our (society’s) responsibility?

I also remember that my client’s opponent is the STATE OF CALIFORNIA, which includes: a small army of police officers, several hives of district attorneys, laboratories of criminalists, and a vast reservoir of out-of-touch retirees to serve as jurors. My clients will be sentenced according to laws that were passed by ballot initiative, i.e. by voters who love double-digit sentences but hate the taxes necessary to house what will become it’s geriatric prison population with some semblance of dignity. Yeah, my client may be guilty, but in many cases the potential punishment is even more appalling than whatever crime he committed. Also, this carries more when you remember my previous point: my client’s family may have always been working against him, too. Often, I am the only person on my client’s side who is thinking of his best interest. With my juvie clients, I sometimes got the impression that I was the only adult ever to have done so.

All right, up until now, I’ve kind of avoided the question. This is because abstract existential issues don’t come up in my day-to-day assignments. In fact, the only client who ever gave me the “willies” was passed off to another lawyer when I changed assignments. But I would have defended him with my very best effort. Here’s why:

The adversarial system is in place so that innocent people are kept out of jail. I presume my clients are innocent. Even if I know otherwise, I am still obligated to act as though (because if I can’t, who else will?). If a guilty client goes free, it means something went wrong in the system: the wrong person was arrested, the evidence was seized illegally, my client was too deranged to know what he was doing was wrong, or the DA screwed something up.

In short, if the system is working properly, I should not win. And if my client is found guilty despite my best efforts, then our society has the satisfaction and peace of mind knowing that we don’t put innocent people in jail without giving them a fair shot. (In theory.)

I trust the justice system to do it’s job. For the system to work, everyone has to do their job and do it well. This means that cops do good police work and don’t resort to harassing citizens. This means that DA’s charge clients with what they actually did instead of trying to trump up charges or use dirty tricks to get promoted faster. (Or, that they actually try cases instead of settling for lesser charges. You might see how this particular fault doesn’t upset me too too much, but it should you!) This means that judges are impartial and enforce the law. This means that I do my best to provide a defense for the accused. I’m only one part of the larger whole.

In short, everything else in society is designed to rain moral judgement (and shocking consequences) upon a client’s head; perhaps his lawyer can be the one person who can restrain the urge to judge him?

I hope that this answered your question, dear reader. Other readers (dear or otherwise) should feel free to submit questions themselves. Informed readers make for better voters and jurors; my future clients will appreciate that.

Respectfully Submitted,

Norm DeGuerre