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

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Peer Reviewed

An embarrassing amount of time has passed between blog posts. Part of the reason is because I’ve cycled back onto the felony trial team.

The Constitution guarantees the accused a trial by jury. In Ye Olde Days before the American Revolution, juries were composed entirely of people who knew the defendant personally. The premise? A jury of one’s peers will not begin a trial pre-disposed to convict; to the contrary, a jury of people who know you personally should be wholly disinclined to convict you unless the evidence is persuasive beyond all reasonable doubt.

Today, jury pools are drawn from randomly-selected groups.

Well, the selection process is actually far from random. The two main sources for names of jurors are voter registration rolls and DMV records. So the first question to ask – in deciding whether your client is being provided with a jury of his peers – is whether most of your client’s peers are registered voters or licensed drivers.

This excludes many of the people I have represented…and most of the people that they know.

But once you get past that hurdle, then the focus must shift to the actual group of 60-80 people whom are sent to your courtroom on the first day of jury selection. The systemic, though unintentional exclusion of California’s underclass usually proceeds according to this pattern:

First, the judge typically hears what are called “hardships.” Hardships are listed in the California Code of Civil Procedure. The judge will ask the jury panel who among them would like to try to get out of jury duty based on hardship. ⅖ of the people in the room will raise hands. The judge will question them one by one, and will likely exclude the following people.

1) People who do not speak English well enough to understand the proceedings. On the one hand, excusing these people is a relief for everyone involved; who would want their client’s fate decided by someone who cannot make out what the witnesses say? But consider the typical profile of a U.S. citizen who does not speak sufficient English to serve on a jury. They will have almost always been in the U.S. for more than ten years. However, English will rarely be the primary language spoken at home. Furthermore, English will likely not be the primary language spoken in the food service/manual labor jobs that employ them; afterall, English is often a second (or third) language for most of their coworkers as well.

So thus far, our jury pool has been cleansed of citizens whose professional and personal lives are so isolated from the majority culture that their English remains…rudimentary at best. How does exclusion from jury service resolve that problem? If we are truly concerned about having a fair cross-section of our community, public resources would have to be devoted either to ESL classes prior to jury service, or providing court-certified interpreters to jurors as well as to defendants.

But I understand that we have banks to bail out with that money instead. So nuts to that idea.

2) The next group of people to go will be those who are financially unable to serve; being taken from their job for the 3-10 days of a typical jury trial will cause immediate financial harm. This is so mainly because employers will not pay employees who are serving on a jury. This includes most non-union, non-salaried employees. This also includes a huge number of single parents.

3) After the first two groups are removed, the two or three full-time college students will also be excused from jury duty. Roll Tide!

Meanwhile, there will be others asking the court to be excused from jury duty who do not qualify for hardship. Maybe they care for a dependent adult or child, but are lucky enough to be able to arrange for alternative child care. More commonly, doctors and executives will explain to the court that they are very, very important and their businesses need them to do work that is much more important than jury duty. Also, their employees will suffer because they will not keep their businesses open while they are away on jury duty (because paying your employees anyway, and letting them work in your absence, is just absurd). These folks will be asked to rejoin the retirees, the salaried professionals, and the temporarily-unemployed high-skilled married parents for further jury selection after the morning recess.

And thereafter, you look at the tattoos on your client’s face before he’s taken back to the holding cell for the morning recess and wonder if he has a chance in hell of a fair trial.

Respectfully Submitted,

Norm DeGuerre