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?

Sincerely,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Respectfully Submitted,

Norm DeGuerre

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

“I have an idea – humor me on this.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Respectfully Submitted,

Norm

Adversaries Need Not Apply

To:     Mr. Blaise Trettis, Public Defender

           18th Judicial Circuit Public Defender

           Brevard County, Florida

    

From:    Norm DeGuerre, Esq.

               Deputy Public Defender, County of Santa Asphalt

 

Re:        Recent Job Opening

 

Dear Mr. Trettis:

I hope this letter finds you doing well. My name is Norm DeGuerre, and when I am not exorcising my professional demons through anonymous blogging, I am a trial attorney with the public defender’s office in “Santa Asphalt,” CA. Don’t bother looking at a map, because this is not the name of a real county. Santa Asphalt is my affectionate pet name for my jurisdiction, which makes up for the lack of thriving small businesses by creating a glut of empty, sprawling retail spaces under 3 stories in height.

But I digress.

I understand that you have a position open in your office; I write you this letter to ask that you consider me for the position.

From what I have been told, a member of your local bench named John Murphy physically assaulted Andrew Weinstock, one of your former attorneys. On that fateful day, Mr. Weinstock appeared for at least two defendants and declined to waive his clients’ right to a speedy trial. His Honor then declared that “if [he] had a rock, he would throw it at [Mr. Weinstock].” In a fit of judicial dignity, His Honor then offered to “go outside” with the public defender to settle his differences. Mr. Weinstock followed His Honor into the hallway, and His Honor proceeded to hold Mr. Weinstock’s face in contempt with his fist. His Honor then retook the bench and gave the (now) unrepresented defendant advice on how to schedule his trial date.
On the off-chance that you have forgotten this unfortunate episode, I present you with this link and a reminder that the internet never, ever forgets things:

http://www.floridatoday.com/story/news/crime/2014/07/07/public-defender-in-courtroom-fight-resigns/12292987/

Yesterday, you publicly endorsed His Honor’s ignominious return to the bench, stating that your office asks the court to give “second chances” to your clients on a daily basis, and that it would be only sensible to extend the same courtesy to a judge who suffered the indignity of four-weeks of paid leave before returning to his post.
As mentioned above, I write you this letter as a first step toward applying for Mr. Weinstock’s now-vacant attorney position. Although I have no personal ties to the state of Florida, my hope is that any property I buy in the 18th Judicial District will become beachfront as the oceans continue their inexorable march to swallow man’s hubris. I want to work, live, and play in your jurisdiction, and from your public endorsement of Judge Murphy’s return, I think I have a good idea of what you’re looking for in an employee.

Like you, I too believe that the law should treat everyone equally. You so eloquently noted that your attorneys ask society to give their clients’ second chances, and that this compels you to extend the same courtesy to Judge Murphy. I assume from your sentiment that Judge Murphy was, in fact, treated in the same manner as one of your office’s clients, in that he was brought up on felony charges and held in custody among the general inmate population pending his trial. I also assume that he was given appointed counsel and that his file was placed in the enormous stack of files that one of your lawyers lugs to court every day. I assume that Judge Murphy felt pressured to plead to something in order to avoid your state’s draconian sentencing practices, and that his sentencing judge blithely ignored his long, sad history of childhood abuse and substance abuse.

Because it really wouldn’t be fair to treat him differently from any of your clients.

Like you, I too have realistic expectations of how to be treated by my fellow man, especially my fellow men in positions of authority. The Ivory Tower that gave my my law degree taught me that we have an “adversarial system,” and that such a system does not work unless the accused has a zealous advocate who pushes his client’s best interests against the weight of the state and, in some cases, the weight of public opinion. But really, the public defender is but one grinder plate in the nasty sausage machine that is our criminal justice system. Of course our clients have a right to a speedy trial, but why would I inflict that right on a judge whose calendar is inconvenienced, as though my client’s rights had “value,” and that they should not be given away unless exchanged for something else of value? Such idealistic bullshit warrants a good beat-down in the courtroom hallway for all of the defendants to see, so that they don’t get any uppity notions of inflicting their rights against the state.

Finally, I appreciate the fact that your position is an elected position. You made nice with a man who was so unsatisfied with the power and authority of his office that he had to inflict physical violence upon one of your employees in order to impose his will. Clearly you understand that an elected public defender cannot win re-election by boasting about how many defendants his lawyers walked, or about how many pounds of contraband your lawyers suppressed from evidence through skillful litigation; that would just piss off potential voters. After all, most voters in Florida stopped reading the Constitution after Amendment II, and have yet to realize that half of the Bill of Rights is devoted to rights of the criminally accused. In order to win office in such an environment, you must network with your jurisdiction’s local power brokers. Your decision to endorse the Honorable John Murphy’s return to the bench shows political savvy. In contrast, I would get hung up on how my official actions as Public Defender would benefit my clients; these hang-ups, unfortunately, tend to parallel the ABA’s “model rules” for attorney ethics. Being a stickler for rules will certainly cost me at least one election. I have much to learn from you if you will only give me the opportunity.

Don’t be thrown off by the fact that my attached resume includes a personal interest in Krav Maga, the official martial art of the Israeli Defense Forces. I would never dream of inflicting my right of self-defense against any member of the bench, no matter how much his groin deserves it.

Cordially,

Norm DeGuerre

 

Journey Through the Sealed Transcript, or Marsden Motions: A “Choose Your Own Adventure” Adventure

“I want a Marsden motion!” my client proclaimed from his seat in the jury box.

When a courtroom is not used for a trial, the jury box is typically used to seat 12-14 inmates, handcuffed in pairs, waiting for their turn to appear on the felony “entry of plea” calendar. The inmate who happens to be handcuffed to my client doesn’t know what a Marsden motion is, but he looks wistfully at the nearby sheriff’s deputy in hopes that he will be unshackled from this man before he has to find out.

When the judge hears the client’s demand, every muscle in his face tenses as he looks at the wall clock and then over at me. “Why can’t you control your client,” the Judge tacitly asks with his glare, “and who told him what a Marsden motion is?”

With an apologetic smile and a shrug, I admit that it was me.

“Sir, I’m sorry you’re not happy with your representation so far,” I had said to my client moments before his audible outburst, “but if you really think that I’m ‘fucking you raw’ because I’m ‘working for the DA,’ then you should tell the judge that you want to make what’s called a Marsden motion and have me fired.”

I told him this because, quite simply, he has the right to know that a Marsden motion is an option a defendant has if his lawyer’s representation is so defective that it effectively violates his right to counsel. Since I work in a county with an exemplary PD system, most Marsden motions are basically an opportunity for the client to lash out a lifetime of problems on the nearest available mammal (and if you’re a PD, that mammal usually happens to be you). I can’t and don’t take it personally.

“Ladies and gentlemen,” the judge intones, “we ask that you leave the courtroom for the next few minutes while we take up this matter outside of your presence.”

And the adventure begins!

One by one, the remaining inmates, lawyers, and gawkers leave. Since a Marsden motion requires a ceremonial Airing of Grievances about the client’s representation, attorney-client privileged communications are often divulged. To protect these, the court room is closed to all but the attorney, the client, and the court staff. The transcript is sealed after the motion concludes.

“Sir, I understand that you want to fire your public defender,” the Judge says, tip-toeing between syllables like someone trying to delay an unpleasant hospital visit by going very, very slowly down the hallway. “Tell me more.”

My client proceeds to tell him more. Much, much more. And I start to grow agitated.

I’m not worried about what my client is saying about me. I’ve been “Marsdened” (it’s a verb in PD jargon) before, and even though part of me wishes some had been granted in order to be rid of particularly unpleasant clients, none have been. What does scare me is the possibility of being found “IAC.” That’s when an appellate lawyer looks over a trial transcript and decides that the guilty verdict was due to “Ineffective Assistance of Counsel.” Being Marsdened is a rite of passage; IAC is more like last rites.

I am agitated because I know that I will likely still be tasked with representing this client when this is over and he is making my job–the job of defending him–even harder. I visualize what the transcript of this hearing looks like and I wish I could strikethrough the portions that I wish he were not saying, out loud, to the judge.

Did I mention I’ve been Marsdened before? Do you want to know what it feels like to sit through a client’s Marsden motion? Then read on and chose your own Marsden adventure:

If your client is accused of a “domestic” charge, proceed to section I.A.

If your client is accused of auto theft and has been talking to the “jailhouse lawyer” at the jail’s law library, go to I.B.

I.A. Judge, this whole thing is ridiculous. My lady wants these charges dropped completely. I also called her last night from the jail and she told me that she wants the “no contact” restraining order dropped. She’s going to come in here and say that she made the whole thing up because she was drunk and mad at me for cheating on her. Also, she’s bipolar. That means that she lies all the time, right? I saw it on “Dr. Phil.”  Anyway, my dump truck public defender is telling me that what she said to police is a “prior inconsistent statement” that comes in as evidence even if she takes it back. But that’s not true, right? He just wants me to plea because he has too many cases.

I.B. Judge, this public pretender isn’t doing anything for me. I told him that I wanted an attorney. I’m entitled to a court-appointed attorney, but they keep giving me public defenders instead. Also, I heard in my dorm unit at the jail that if they don’t bring you to court within 48 hours of your arrest, they have to dismiss the case. Well sir, I was arrested on a Friday, and I know that it was still Friday because when the police pulled me over in that stolen car, I looked at the dashboard clock and saw that it was 11:48 p.m. I didn’t have my first court date until Monday, so my case should be dismissed. At least that’s what I heard.

I also wrote a motion myself; it’s about voluntary intoxication. I read in the law library that being voluntarily intoxicated can sometimes be a defense. Well, I can tell you that I was TOTALLY voluntarily intoxicated up when all this happened. I remember the six-pack, I remember…whatever that stuff was in the pipe they were passing around. I remember having the slim jim and the shaved key, but I don’t remember actually using them to take the car. I do remember speeding away from the police, and I remember trying to swerve around the cop who was trying to stop me, but I don’t remember anything about supposed “threats” I made to “make him my bitch” with his nightstick. There’s more and it’s all in my motion, but this dump truck won’t file it. I think he’s working for the DA. He says that he won’t file  it because it has “incriminating statements,” or because it contradicts the confession that I supposedly gave afterward, that I don’t remember. I don’t know, he can’t seem to get his story straight about why he won’t file it for me.

Also, no one read me my rights when they arrested me. They were supposed to tell me that I had the right to remain silent. That means I get a dismissal, right? … Well, no, they never actually asked me any questions … No, I didn’t actually say anything after I was arrested. But I’m supposed to be read my rights! I need a REAL lawyer who knows these things to get me out of here!

Lifting an eyebrow, the judge looks to me and asks, “Mr. DeGuerre, how do you care to respond?”

If this is your first court appearance with this client, go to section II.A.

If you’ve already discussed each and every one of these things with your client, go to section II.B.

II.A. Your Honor, it is absolutely, positively true that I have not yet done anything for this client. I have not seen him at the jail. I have not called his baby’s mom on his behalf to keep her from throwing out his stuff. I haven’t looked into whether the police search of his pockets was legal because he’s not charged with possessing anything illegal; the charged crime is violent and happened in the police officer’s presence. Quite frankly, I just got this file two days ago; only by breaking the laws of physics could I have gone back in time and done all the things that my client seems to think that I should have done before today. Given that I obey the laws of physics at all times, I trust that I can represent this client to his satisfaction if given…some time, any time, at all.

II.B. Your honor, my client demanded after his first court date to receive his “discovery packet.” He seems to be in continued disbelief that his “discovery packet,” at this stage, consists entirely of the police report that I have reviewed with him several times. He claims the police report has “got nothing” on him because it doesn’t include fingerprints, DNA, or surveillance video; it contains nothing more than statements of witnesses who said that they saw him do it. I explained to him that these are still “evidence.” I explained that public defenders are, in fact, attorneys. I explained that I do not work for the DA simply because I told him what the DA’s offer was. I explained to him that hiring the “real lawyer” that his mother has been talking to may or may not get him a better deal, but that she’s welcome to get a second mortgage to pay his retainer in order to find out.

The judge makes eye contact with each of us one more time. He has the information he needs in order to make a decision.

If this is a judge who, in the past, has threatened to hold you in contempt for objecting during the DA’s closing argument, go to section III.A.

If this is a judge who is deathly afraid of the client deciding to represent himself, go to section III.B.

III.A. Sir, I assure you that Mr. DeGuerre is a devoted advocate. He’s a fabulous attorney, and you’re lucky to have him. The fact that you get his services free of charge is one of those curious luxuries that comes with having a free society. The defendant’s Marsden motion is denied.

III.B. Sir, I completely understand your concerns. It sounds as though Mr. DeGuerre needs to make himself more available to you by phone. Perhaps you should call during his lunch hour, when he is at his desk eating the sandwich that he brought from home. And really, Mr. DeGuerre, when I was a public defender, I saw my clients at the jail before every single court date. You say you got the file late Monday, but today is Wednesday. It doesn’t matter that this was so long ago that the PD’s office had six lawyers and five clients: no excuses.

It also sounds like Mr. DeGuerre can make just a little more effort in finding that transient, homeless witness you say can prove your innocence; you’d be amazed at what public defender investigators can dig up just by knowing that his name is “Mike Something.” I’m also going to suggest to Mr. DeGuerre that he make more efforts to negotiate with the District Attorney; Mr. DeGuerre, you should keep an open mind when the DA tells you that your client is a “monster” who should plead “as charged.” If the DA says that, and you agree, she will not ask for the maximum. You should think of that as a starting place for negotiations! That being said, I will give Mr. DeGuerre leeway to perform his due diligence. We can revisit this issue down the road if we need to. For now, the defendant’s Marsden motion is denied.

Congratulations! You made it! How do you feel?

If you happened to choose III.A. and would like a copy of the proceedings as proof of the only nice thing that judge has ever said to you, then you are out of luck. That record is sealed.

Respectfully submitted,

Norm DeGuerre

Transcript of His Honor’s Handwashing Liturgy, or The Defendant’s Romero Motion is Denied

Under California’s Three Strikes law, defendants with two or more serious or violent felony convictions receive a minimum sentence of 25 years-to-life for a third serious or violent felony. However, the defense may argue a Romero motion, which asks the judge not to apply the Three Strikes law during sentencing. In his deliberation, the judge considers the facts of the current case, the defendant’s criminal history, and the defendant’s “character, background, and prospects.” The hearing on a Romero motion, which is infrequently granted, follows a ritualistic pattern.

And, in my head, the ritual goes something like this.

Commencement

His Honor:    Ave, Ave, now comes the formerly Accused, now Convicted, presenting himself for the Court’s mercy, garbed in the county-issued vestments of both protective custody and maximum security. Cursed is the snitch, for stitches he shall receive. Cursed is he who requires maximum security, and let him learn to correct his lawless ways whilst surrounded by those as dangerous as he. Counsel! Appearances, please!

Attorney for the District: Ave, Your Honor, for I represent the People of the State of California who are other than the Accused, now Convicted. We now present unto thee our young Acolyte, who is in his third year of law school, and who has been honing his skill in the sacred arts of shooting fish in barrels and confiscating sugary confections from the hands of babes.

Acolyte: Ave, Your Honor.

Norm:    Ave, Ave, Your Honor, Norm DeGuerre for the Accused, now Convicted.

His Honor:    Brother DeGuerre, thy Client presents himself as a supplicant before me, or would if his wrists were not bound by chains to his waist. Thy Client seeks the blessings of St. Romero, who many years ago, prayed for relief and received the miracle of mercy, for the court sentenced him as though he bore not the stains of having prior “strike” convictions. The Accused, now Convicted has been convicted of Robbery, and shall face a sentence of life despite the recently-passed Prop. 36.

Norm: Aye, Your Honor.

His Honor: We shall now begin the Recitation of Terrible Childhood.

Norm:    Aye, Your Honor, I draw thy Honor’s attention to the absence of family or loved ones, who have missed all court dates for the Accused, now Convicted since his junior year of high school. Scars of flesh and wounds of spirit have rent my client into a hastily-assembled scarecrow of the man he could have been had he more money and one caring, competent adult.

His Honor: Now, the Affirmation of Chronic Substance Abuse.

Norm:    Not since the party at Thy Honor’s law firm in 1982, when Thy Honor’s partners removed the mirror from Thy Honor’s office restroom, has such heroic quantities of Columbia’s Finest been consumed as was during the Convicted’s term on parole. But alas, the Convicted snorts not to celebrate, but to forget; and the Convicted spends not his disposable income, but his only income. Thy Honor’s campaign for the bench inspired thee to begin the 12-step purification rituals; alas, the Convicted has no campaigning or politicking for which to abstain.

His Honor: And now, the Plea to the Angels of the Eighth Amendment, in which Counsel will condemn the proposed life sentence as cruel and unusual. Make the plea now so that the Accused, now Convicted’s appellate counsel may brief later what I shall now ignore.

Norm: Your Honor, the Accused, now Convicted did violate the Seventh Commandment, in that he did take two tall-boys of St. Mickey’s Ale out of the refrigerator at the Try-N-Save liquor store, and did try to smite the security guard who declared him a “fucker” and who attempted in vain to wrest the tall-boys from the Convicted’s shaking hands. But your Honor may bestow St. Romero’s blessings for this nefarious misdeed and sentence him to 20 years, and not for the entirety of his life. After all, is the consummation of malt liquor not already a cruel and unusual enough punishment for Thy Honor?

His Honor: And now, Acolyte, commence the Padding of Thy Resume.

Acolyte: Your Honor, I entreat Thee first to gaze in horror upon the tattoos upon the Convicted’s face: Eww. Shine thine eyes upon the Convicted’s numerous parole violations, for they show the Convicted needs more time in prison so that he can learn the lessons that prison failed to teach. And Your Honor, if ye would, muster stale outrage for his burglary conviction from 1992 and his making of criminal threats from 1996, for in those years the Accused, now Convicted did take a Panasonic television set and later hurt someone’s feelings with empty promises of violence.

His Honor: Counsel, prepare thyselves for my ruling:

The conclave of voters hath spoken, and they hath spoken that Three Strikes shall be the law. Terrified they were of rapists stealing children from their homes in the dark of night, and so it shall be that the Wrath of Three Strikes shall smite those at whom we are merely angry as well as those of whom we are scared. If St. Romero’s mercy were granted to all whose woes would have been lifted during childhood by the healing touch of more money and one skilled parent, Three Strikes would smite hardly anyone at all. The plea for St. Romero’s mercy has failed, and the Convicted, now Sentenced shall dwell in a pit of despair to be determined by the Department of Corrections of the State of California. This pit shalt not be within 12 hours ride by Greyhound coach of his family, because really, Brother DeGuerre, as you’ve so pointed out, what are the chances of their visiting anyway? Also, this pit shalt not be rendered humane through adequate taxes, because the conclave of voters hates those. Verily, the conclave despises rendering unto Caesar sufficient ducats to pay for the sentencing laws they demand.

We will now commence the Washing of Hands. The conclave of voters has spoken, and this court shall not accept responsibility for their frenzied whims, nor the perceived disproportion of the court’s sentence to the defendant’s conduct. Verily, as all in attendance can see, I myself learned to make principled decisions long ago. I am only giving the defendant ample opportunity to learn the same lessons.

This concludes the Washing of Hands. You are now dismissed.

Go in peace, serve the Lord.

Respectfully submitted,

Norm DeGuerre

You Have the Right to Remain Silent… so SHUT UP

I have many grievances with how our criminal justice system is portrayed on television, but one of the few good things that it has done is emblazoned a person’s right to remain silent in the minds of even a casual viewer. The “Miranda Warning” came into existence in 1968, when the Supreme Court decided the case of Miranda v. Arizona. In that case, the Court held that in order to protect a person’s right to remain silent and in order to make that right meaningful in the real world, suspects had to be advised of that right before any interrogation that takes place in a “custodial” setting. Thanks to the ubiquity of police shows on TV, many of us can recite the four parts of the “Miranda Warning” from memory:

1) You have the right to remain silent.

2) Anything you say can be used against you in court.

3) You have the right to have an attorney present during any questioning.

4) If you cannot afford an attorney, one will be appointed free of charge.

In the early 1990’s, the Supreme Court had the opportunity to revisit its decision in Miranda, and many suspected that what was then a very conservative (right-wing) Supreme Court would undo the requirements of Miranda.  However, the Court decided to uphold Miranda; in doing so, the Court referenced the fact that so many people could recite “Miranda Warnings” from memory (after hearing it on television so many times) as a sign that the warning itself was an integral part of our right to remain silent.

And yet, Miranda warnings rarely stop people from confessing. I once had a case in juvenile court where my client was accused of possessing a stolen car – this particular charge requires actual knowledge that the car was stolen. I opened the file to find that my client was merely a passenger, and that the car had no damage to the steering column or ignition that would advertise to the world that the car was stolen. Being pleasantly surprised at how defensible this case was, I then turned the page to find my client’s detailed, lengthy, wholly unnecessary confession to having stolen the car, doing “doughnuts” with it in a parking lot, and then letting his friend drive shortly before being spotted and arrested by the police.

This kid was hardly an isolated example; a surprising portion of my clients confess before consulting with an attorney. I have no idea why they do this. Overall, it’s the sex offenders who are the most likely to confess to everything. Despite Miranda warnings and a spinning tape recorder placed on the table in front of them, a typical client accused of a sex-offense will go on and on about how he did indeed have frequent rendez-vous with the pre-teen that he met on Myspace, but then insist that everyone was ok because it was consensual (note: NOT A DEFENSE).

Sometimes police get people to confess by lying; for example, telling a suspect they found DNA at the scene, a fingerprint on the weapon, and/or a confession letter from a co-defendant. But this is fairly rare; usually the confession comes with only the slightest provocation. I can’t figure this out. My personal theory is that many of my clients come from religious backgrounds and are under the gravely mistaken impression that confession is good legally as well as spiritually. That is, if they confess, the system will show them mercy as a reward for their honesty (note: NOT TRUE).

Even when clients give statements that they think will get them out of trouble, it is usually better for them to remain silent. Often, they talk before knowing what the evidence is against them, and so they blab before they find out that the store surveillance camera/blood trail/three eyewitnesses completely contradict their self-serving malarky. Many times, I find myself thinking that I could have come up with a better defense than my client’s implausible tale, and that it would be easier if they would just STAY SILENT and let me do the talking.

It’s not that whatever you say can be used against you; it will be used against you, whatever you say. Don’t take my word for it; law enforcement experts agree that there is almost nothing that a person can say post-Miranda warnings that will help them, even if they are completely innocent.

Enjoy this informational video; and remember if you’re ever arrested, that since you have the right to remain silent, you should really just stop talking.

Respectfully Submitted,

Norm DeGuerre