Sworn to Silence

The public defender who hired me warned that most of our attempts to help our clients will fail, despite our very best efforts. But she went on to say that even when all of our efforts fall short, a defendant’s public defender can and must always be the client’s voice in the courtroom; even as all the grinding parts of the machine line up against the accused, his or her public defender will always stand beside them and insist, with intelligence and passion, that the person on the receiving end has wants, needs, and interests that must be heard.

This is a story of how I may have failed to be a voice for a uniquely vulnerable client. Let’s call her Letty.

Letty ran away from her parents’ home in Dingy Suburb two weeks after her 18th birthday. Unfortunately, Letty had a less-than chivalrous boyfriend with a pitiful attempt at a moustache (let’s call him Dirt Lip). Dirt Lip promised Letty that they would “make it” on their own with the help of an older friend who lived two-hours away in Big City.

Dirt Lip’s “older friend” was a heavily-tattooed East Coast gang member who had decided to seek his fortune –and meth– out West. Older Friend explained to the young couple that he “looked after” three other girls. By “looked after,” he meant that he kept them stocked with crystal meth, reminded them of the number of Johns they had to service to pay him back for the dope, and handled their money for them to ensure that he was compensated for the hotel rooms, the drugs, and his time as their “security.” Dirt Lip assured Letty that this was nothing at all like pimping, and pointed out that unless they could find some way to pay the older friend back for the hotel room that he had booked for them –without asking first– Letty might have to follow the girls’ lead and make some quick cash.

Thankfully for Letty, Older Friend’s taillight failed to come on as he drove her and Dirt Lip back to their hotel. Before the highway patrolman could even begin to open his book of tickets, Letty blurted out as much of her story as he could to the surprised officer before he told everyone to be quiet and get out of the car. The officer quickly noticed that everyone was high, arrested them, and found Older Friend’s half-ounce of crystal behind the driver’s seat.

Per local custom, our district attorney decided to accuse everyone in the car of possessing the meth with intent to sell or distribute. Dirt Lip was a juvenile, so he never found his way into my courtroom; Older Friend hired a real lawyer, and Letty came to me.

The courtroom stood mostly empty when I arrived for our pre-trial hearing; I was the first lawyer there. Letty sat handcuffed in the jury box, swimming in her ill-fitting orange jail uniform. I began with my well-rehearsed “Trust Me Quickly” routine: handshake, business card, assurances that I am, in fact, a real lawyer, explanations of the charges, and our reasons for being in court that day. Letty responses ranged from “yeahs” to nods without eye-contact; I wasn’t entirely sure that she understood everything or cared about the parts that she did understand.

The DA and Older Friend’s lawyer came in together  before I could begin discussing her options for going forward. Older Friend’s lawyer was laughing at his own joke and he was wearing a tie with golf balls on it. The DA looked to me from across the room, pointed his thumb out the courtroom door, and mouthed something that I took to be “can we talk outside?”

I winced. Even if I included the squirrels fighting over dropped french fries on the sidewalk outside the courthouse, this DA was not my favorite mammal in the area. I promised my client that I would let her know everything that happened outside upon my return. I followed the DA outside.

“So I’ve decided to add pimping and human trafficking charges against the codefendant.”

“I can certainly see why,” I replied. Normally at this point in the conversation, this DA would have threatened to add extra charges against my client if she decided not to plea guilty to something. So I waited to hear what was coming next.

“I’d like your client to testify against him.”

“That can’t happen so long as you’re accusing her of possessing her pimp’s crystal meth,” I said in the blandest tone possible. Despite my attempt to balance diplomacy with candor, the DA still sucked in his lip like he had done whenever a defense lawyer offended him.

“If she testifies today, I won’t object to her being released from custody without bail before her next court date.”

“And…?”

“And I’ll ask my supervisor whether we can reduce her charge to simple possession.”

I’ll ask my supervisor is easily my least favorite phrase that prosecutors give me. The ABA’s model ethics rules assure us that the individual prosecutor is the one who wields the power to decide what charges the state levies at a person; this allows the individual prosecutor to  tailor a just outcome. But individual DAs work for an elected District Attorney, and that elected District Attorney has tough-on-crime campaigns to run. To ensure that no individual prosecutor does something to undermine this stance, he or she must get approval from their supervisors to ensure that their individual actions harmonize with the administration’s marching orders.

“So…you want my client to waive her 5th Amendment rights and testify without any actual promises in return?”

The DA sucked his lip again. “Well, if she doesn’t I’m going to add misdemeanor prostitution charges against her after the hearing.” Here was the threat I was waiting for! On a side note, I have met many men who manage to have successful careers despite a complete lack of people skills, obliviousness to the norms of common courtesy, and deafness to the human consequences that their seemingly-mundane decisions have on others; many titans of the tech world thrive despite and because of these deficits. But during this conversation, I felt a pang of rage at the fact that a person can miss the sick irony of charging someone you believe to be a victim of human trafficking with prostitution and still thrive as a prosecutor. I assured the DA, in my blandest Swiss diplomat tone, that I would convey his “offer” to my client.

I sat beside my client again and resisted my urge to tell her which part of the human body best exemplified our prosecutor. Her eyes widened with fear at the prospect of testifying against her codefendant, but they shone when I mentioned the pre-trial release. “I get to go home today?”

“Hold on, please. It’s not that simple,” I warned, but I feared that I was too late. Her hungry look reminded me of a talk that I had attended some months before, where a doctor told me that the brain chemistry of a person withdrawing from methamphetamine is nearly identical to that of a person who has become delirious from starvation. The DA isn’t actually promising you anything, I told her, and that since the evidence against her was so weak, she should continue to fight the charges against her. If her cooperation is so valuable to the prosecution, she should not give up any of her rights without something equally valuable in return; a promise by the DA to “talk to his supervisor” did not strike me as equally valuable.

I tried so, so hard to persuade without bullying. But I did insist, multiple times, that going along with the DA was not actually in her best interest. When she finally agreed to go forward with the day’s hearing and fight the charges, her shoulders slumped in seeming defeat….and I feared that at that moment, I had become the bully that I thought I was protecting her from.

But I had no time to backtrack; the judge was going to take the bench any minute and I could not afford to have her rescind what I thought was the wiser decision, even if she made it for the wrong reasons. The DA flushed when I told him that my client had decided not to help him.

“All rise.”

Today’s judge left his chambers and took the bench. He called our case and asked whether all three of the lawyers were ready to proceed. The DA then called his first witness.

My client. He called my client as his first witness.

“You honor,” the DA intoned with as much solemnity as he could muster, “We will be asking the court to grant her immunity for the testimony that she is about to give today.” Normally, immunity is a gift; in exchange for testimony, the defendant is granted immunity from having any of that testimony used against her. She would also be immune to any new evidence that law enforcement discovered thanks to her testimony. However, it did not feel like a gift; the DA couldn’t get what he wanted by persuasion or bargaining, so he was going to take it from her.

My client turned to me as though someone had asked her in classical Arabic to perform surgery. “What am I supposed to do?!”

“Nothing bad is going to happen to you,” I whispered, just loudly enough for the other lawyers to hear. “The DA’s deciding he’s going to steal what he wants from you since you’re not willing to just give it to him for free. We’ll go up together, and all you have to do is answer the questions honestly.” I then leaned in closer and lowered my voice to an actual whisper. “Just don’t blurt out anything about anything illegal you did beyond this case.”

I kept pace with my client as she shuffled up to the witness stand. I pulled her chair out for her and sat next to her. I had never sat in a witness stand before; the courtroom looked less like a solemn chamber of justice and more like a big, cluttered, dreary office cubicle. The judge had too many windows open on his computer screen and struggled to find the one that would show him the court reporter’s transcript in real time. The court clerk had bins of paper clips, a half dozen family photos, and a carpet of post-it notes across the surface of her desk; her potted vine seemed oddly perky given its steady diet of fluorescent light. The codefendant’s Real Lawyer scratched his chin very seriously and wrote illegible things on his legal pad even when no one was saying anything. The DA shuffled some things at his desk and began.

Stone by stone, the DA elicited the walkway of sorrows that had brought my client into her current circumstance. However, the DA seemed utterly incapable of asking a non-leading question. “And so Mr. [Older Friend] brought you drugs?” “And later that day your boyfriend made an ad for you on Craigslist?” Being in the witness stand, I was a mere advisor and spectator and could not object to his line of questioning. As my client muttered “yes” to each question, I found myself wondering why exactly his questions angered me so. Was it the sloppy in-court technique? Was I feeling a hyper-competitive urge to shut down my opponent with objections? Was I just irrationally angry at the way the DA’s eyes narrowed at the end of every question, as though he was trying to spot lies in my client’s one-word answers?

Though I would have answered “yes” to all of these questions, the biggest reason came together during our closing arguments after the hearing. “Your honor, I question whether Mr. DeGuerre’s client is telling us the whole truth,” the DA mused as he began to argue why the judge should use her testimony to believe that codefendant was a pimp, but to disbelieve that she had no power or control over the Older Friend’s dope. My client had spent the past hour-and-a-half agreeing to all of the words that the DA had put into her mouth, and he had the unfiltered gall to challenge whether she had told the truth?!

What I realized hit me hard; at no time that morning did my client have her story or wishes spoken out loud. I had assumed that Letty’s first desire was to do whatever it took to free herself from pre-trial custody and blaze another pipe full of crystal, and I had insisted that her rights (in the abstract) were more valuable than the chance to get high sooner. She grudgingly adopted this view long enough for me to it repeat for the DA as my client’s stated position. I don’t necessarily regret having done this, but to this day I do not feel good about it. And then when she did get the chance to testify, she spent her entire time on the witness stand agreeing out loud to another man’s words.

Thankfully, the judge found that the DA did not have enough evidence against my client and set her free; my advice was thankfully in her short-term best interest as well. But if he had decided that the state had presented enough evidence to warrant a jury trial, my client would have sat in custody for months. If I knew with a clean conscience that this is what my client preferred, I wouldn’t waste a second thought. But to this day, no one really knows what Letty wanted because she never really got to tell anybody. From her history of drug use and evident desperation, I assumed that she would have said, “I’ll do whatever lets me open my own jail cell as quickly as possible.” Past experience tells me that when clients with drug histories do whatever gets them them out of jail faster, they inevitably return; they often relapse and either miss court dates or violate the terms of their probation. They end up picking up new charges and, in their renewed desperation, take even worse deals to get out faster. In order to talk someone out of this, I have to assume that the abstract notion of “rights” have actual value, and that this abstraction is more valid than the actual, tangible need to get free and make the withdrawals go away. But is this true? What am I supposed to do when my client’s voice is at odds with her best interest? If that day’s hearing had turned out differently, the abstract notion of “rights” would have meant very little to the real person fighting the shakes in a real jail cell.

Respectfully Submitted,

Norm DeGuerre

Profiles in Happenstance

Chasing Truth, Catching Hell turns one year old today. A surprising amount has happened since then; my cathartic creative writing project is now featured on the ABA Journal’s “blawg” roll and has hundreds (plural!) of readers. An amazing community of bloggers, lawyers, writers, and informed citizens has visited Chasing Truth over the past 12 months.

Many stumble upon Chasing Truth through search engine queries. In furtherance of this blog’s goals of educating and entertaining its readership, I will attempt to answer the questions that many of Chasing Truth’s readers have been trying to answer with the help of the internet.

“How to win a Romero Motion.” This reader is a public defender (or intern) sitting in front of an office computer. His client faces a life sentence under California’s Three Strikes law. In a Romero motion, the public defender will, essentially, beg for mercy in the face of his client’s love of drugs and/or violence. In utter desperation, he has consulted Google for answers. Google doesn’t know how to win a Romero motion. Unfortunately, the only sure way to win a Romero motion is to defy the laws of physics and travel backwards in time to stop your client from having a record. If this is not possible, the public defender will simply have to plumb the depths of his client’s life story, find the shiniest nuggets of redeeming humanity, and convince a judge that the remainder of his client’s human worth is so precious that the drafters of the Three Strikes law would never have wanted the client to serve a life sentence.

In all seriousness, best of luck.

“What happened to Demontes Wright?” This reader is an idealistic young lawyer whose friend has a job in asbestos litigation that allows him to subscribe to HBO. Young Lawyer invites herself over to watch Gideon’s Army, an excellent documentary on public defenders. Gideon’s Army is the story of three intrepid public defenders in the South who war for their clients’ freedom against a drought of resources and a flood of indigent clients. During the climax of the film, public defender Brandy Alexander argues that her client, Demontes Wright, could not have been the man who robbed the liquor store in question. I’m sorry that the plague tornado knocked out the electricity before this reader could see the end, but rest assured that Ms. Alexander won her client’s freedom, despite the ease with which her innocent client could have lost ten years of his life in prison.

Related search: “Travis Williams public defender Georgia.” This reader has the bad luck of being accused of a crime in Georgia, and is desperately hoping that Gideon’s Army super lawyer Travis Williams will be his public defender.

“Are my rights violated if I can’t even go to the bathroom, but they say you’re not even under arrest and police interrogate me without reading me my Miranda rights?” This reader has been questioned by police to the point of physical discomfort. However, in deciding whether his rights have been violated, the question is not whether the reader felt free to leave. The question is whether the reasonable, prudent, Yale-educated Supreme Court justice would have felt free to leave under similar circumstances. If a member of the Ivy League ruling class would feel free to waltz out the door of the police station, this reader should too. If a cop has told this reader that he can’t use the bathroom, he is being detained. If this ever happens to you, stop talking immediately. In all honesty, consider soiling yourself to prove just how trapped you feel.

“Getting help for your client on remand” The good news is that this reader finally got a referral from that business card that he taped above the urinal in the bathroom that adjoins the visitor’s lobby at the local jail. The bad news is that now this client expects his money’s worth. This means that unless the attorney can lower his client’s bail, the client will not be able to make more money to pay the lawyer. This will oblige the lawyer to waive preliminary hearing and then dump his client on the public defender once the case is set for trial.

This reader needs to get his leased Audi out of the nearby parking garage very, very quickly. I know a number of reckless teenage vandals.

“Can a good lawyer get you out of anything?” This reader has hired the lawyer described in the paragraph above. Never underestimate the private bar’s willingness to sell a client an enema of sunshine in lieu of honest legal representation.

“How do you win a Marsden motion?” Unfortunately, I wouldn’t know anything about that. Best of luck to you. Indigent criminal justice reform needs to take place nationwide. People who commit crimes in my county are lucky to have such good representation. But I want everyone in America to have access to the same high quality level of defense. Protecting the rights of our most vulnerable citizens protects the rights of everyone.

“People in jail for drug addictions ‘leave a comment’” County jail is a terrible, smelly, occasionally violent, and perpetually depressing place. Its callow corrections officers are not interested in making any of its tenants into a better person. Maybe this reader needs to write a Yelp review?

“Movies about chasing something and never catching it” Thanks for stumbling upon my blog by accident. I really do appreciate the additional readership. I’m sure that somewhere, out there, is a Zooey Deschanel movie with your name on it.

“Can I add a profile to the Megan’s Law website.” This impish prankster has a great idea for getting his chemistry teacher fired. Unfortunately, these gates of hilarity are blocked by Department of Justice firewalls.

“Crystal meth cannot climax” Not to be an insufferable optimist, but some would say that this is a feature of crystal meth, not a drawback.

“Public defender burnout.” This reader is likely a public defender, and she was probably scheduled to spend a full day cross-examining tearful victims in an all-day preliminary hearing. This reader welcomed the excuse not to check the blinking light on her phone that tells her that she has yet another unhappy call to return. This reader may well be deliberately postponing that life-sentence case that he just cannot bear to try until another attorney takes over his calendar. Or, this reader may have the burden of being someone who works hard without complaining. His public defender’s office may have rewarded this work ethic by giving him some terrible, thankless, high-volume court calendar that the squeakier wheels refuse to do (and somehow get away with doing so).

For what its worth, I’ll bet that this reader is doing a great service to her clients. I will also wager that most of her clients think so too. We love you. Honest. You are why we need student loan forgiveness for government servants. Being able to pay bills every month without excessive anxiety would really help with preventing burnout, would it not?

“Pretenders drink while you’re at it.” This is clearly one of those Zen riddles that one ponders while hoping that his coworkers have not noticed the third vodka soda that he has ordered during the weekly office happy hour. This reader is cheating by searching the internet for answers.

A confession to friends of this blog; I never expected to still be adding to this site one year later. You make me want to keep writing. I reserve the right to broach this blog’s anonymity when I need to plug my first legal thriller; until then, I remain your secret admirer.

Respectfully Submitted,

Norm DeGuerre

On the Twelfth Day of Rehab, My P.O. Gave To Me…

The United States has long since lost the “War on Drugs,” and no drug demonstrates the futility of fighting addiction with cops and courts better than crystal meth does. Crystal meth floods the brain with the pleasure chemicals – primarily dopamine – that most of us receive only in the tiniest doses (a six-second orgasm, petting a kitten, etc). Once a person experiences physical withdrawal symptoms, their brain activity will have undergone a permanent change that cannot be “undone.” Brain scans of serious addicts in withdrawal show that meth addicts have the same brain chemistry as someone delirious from starvation. Long term users sometimes lose the ability to produce their own dopamine without the aid of crystal meth.

This means that a serious addict can become chemically unable to feel joy. That is, unless they can get one more hit.

Cops, courts, and prisons cannot frighten people out of using crystal meth. You cannot expect someone who is thinking like a delirious starving person, to rationally weigh the pros and cons of meth vs. prison time before scoring their next hit. For the addict, feeling pleasure for at least a little while is preferable to the dull, gray drone of sober existence.

And let us not forget the many thousands who use narcotics to “self-medicate” for undiagnosed mental illness. Drug addiction must be treated as a public health issue rather than a criminal issue. It is so treated in more civilized parts of the world.

To California’s credit, a half-way solution is becoming increasingly popular. Many jurisdictions are experimenting with specialty drug-treatment courts. Combined with California’s Proposition 36, which allows drug offenders to participate in outpatient drug treatment in lieu of jail time, drug-treatment courts (DTCs) are a well-meaning attempt at treating the root of most of my clients’ criminal behavior. However, criminal sanctions (including jail time or state prison sentences) will follow failure to comply with treatment, which includes relapse. Little accounting is made of the fact that relapse is almost universal, even for those who eventually overcome their addictions. The vast majority of those participating in Prop. 36 in my jurisdiction are doing so because of crystal meth.

Is half-way better than no-way at all? People more informed than I may have statistics. But it sure doesn’t feel that way.

Despite the eerie resemblance that this whole dance bears to a regular-old-adversarial process, the judges like to say that DTC is “collaborative.” Everyone has the defendant’s best interests at heart, and everyone wants the defendant to succeed. The adversarial justice system is calling an armistice! Isn’t that great? We’re all working together to help these poor folks overcome the disease of addiction.

Today, a client of mine is being remanded into custody. She missed two scheduled drug tests. This gave the judge an opportunity to spout some of the other things that the DTC judges like to say:

“So, counsel, don’t you see how you’re undermining that goal by telling your client to remain silent when I ask her why her last urine test came up dirty? To make matters worse, she missed her previous two urine tests. Lack of funds is no excuse: Maybe she would have been able to afford them if she got a part-time job at Chipotle like the lady whose case we just called. Doesn’t she want a part-time job too?”

After all, urine tests only cost five-hours worth of minimum wage labor. Does that sound like a reasonable slice of the pie graph for you, judge? Is it possible that the dreariness of laboring at a fast food restaurant for five hours to pay for urine tests is a big part of why she uses in the first place? Also, don’t tell me with a straight face (“your Honor”) that the Fifth Amendment undermines your goals.

When this particular client is remanded for her malfeasance on probation, she walks past the “inspirational” posters that somebody thinks are mandatory in every DTC courtroom. At some point, the administrative office of courts must have walked through the building and said “You know what will help the repeat-molest victim not to take drugs every time she feels her uncle’s hands on her? A picture of some guy staring at a sunset from a sailboat with the word “POSSIBILITIES” emblazoned underneath it.” As my client is lead away, I can only gawk as I watch a judge try to fight a mental/public health epidemic by shaming and handcuffing the patients in a forum that eerily resembles an optometrist’s waiting room.

I regret to inform her that I can’t get her out by Christmas. Yes, she should have known better. But what is our excuse?

Respectfully Submitted,

Norm DeGuerre