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

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Murderer’s Privilege (An Attempt at Mostly Fiction)

The heavy steel door latched shut with the tiniest of clicks just before the jail guard walked away. My seat was round and about as large as a personal pizza. My left buttock tingled and then drifted off to sleep.  Across from me sat my client, wrists chained to his sides, feet chained to the floor: standard procedure when visiting a client in the jail’s maximum security wing.

“So I’ve been talking to some of the other guys in here…”

Oh no. My client had been discussing legal strategy in his homicide case with his fellow inmates, several of whom lacked the legal skill to avoid picking up their own homicide cases.

“…and I don’t think I have received enough training on how not to be a killer.”

My client lifted two fingers far enough from the chains on his waist to slide his manila envelope across the table. I skimmed each clipping and set it on the table between us. Inside the envelope,, I found…

…one newspaper clipping about a man in Staten Island who died begging for his life while his killer choked him to death. The killer told the dead man to stop selling drugs on the corner, but the deceased did not stop quickly enough for the killer’s liking. The grand jury decided that the district attorney did not have enough evidence to charge him with anything.

…another newspaper clipping, this one about a man in South Carolina who shot his victim in the back several times as the victim ran away. Strangely, the killer bound his victim post-mortem. The killer’s companion walked up to the body as the killer dropped another weapon on the ground to make it look like self-defense. Both the killer and his buddy wore identically-colored clothing, and the group to which both men belonged had a fearsome reputation for intimidating and brutalizing their community.

…one last newspaper clipping. A man in the midwest fled a gunman on foot. The gunman caught his prey and took him down. The gunman fired his pistol at the deceased as he labored for breath on the ground. Before dying, the victim yelled at the gunman for what he had done. “You fucking ran, shut the fuck up” sneered the gunman’s companion. Another of the gunman’s buddies mocked the victim for his inability to breathe as he lay dying. The shooter later claimed that he had intended to use one of his less lethal weapons and shot the victim by mistake; he stands accused of negligent homicide, and not murder.

…and finally, a computer print-out of a 100-page report, authored by the United States Department of Justice. The DOJ had penned this report in response to another high-profile killing in Missouri. The final section, entitled “Necessary Changes,” had been dogeared by my client. His handwritten notes filled the margins on either side.

I see where he’s going with this. “So if I’m hearing you, you want me to argue that, like the police officers in these news clippings, you simply have not had adequate training on how not to stab your brother-in-law in the chest while arguing on Christmas Eve morning.”

That guy in New York begged for his life on camera. And they say that the cop was right to fear for his life? Why can’t I say the same thing? My brother-in-law said ‘I’m sorry’ to me right before I stuck him. But maybe I was still afraid of him? Was that completely fucking nuts for me to still be afraid of him? The DOJ says I would probably benefit from more training on ‘proper use of force.’ And shit. Most of these guys are never charged with anything. Why do they get to charge me?”

“So how about this: I make a pitch for you to voluntarily wear a body camera on your person for the rest of your life in lieu of a prison sentence. You want me to offer that?”

I don’t know. Should I?”

“Do you think wearing a body camera would help you value human life a little bit more?”

It couldn’t hurt.

“Well, it better. They’re finally charging cops for this in South Carolina, thanks to the fact that most people carry a high-powered camera in their pockets all the time. But maybe with time, your fear of getting caught hurting people will turn into finding genuine reasons to not want to hurt people.”

“Yeah, it couldn’t hurt.”

Barely missing a beat, my client added:

“You know what else I should get? A union representative to protect me from people’s complaints.”

“Well, you already have a representative, and I’m a member of a union. Is that close enough?”

“They also should have set up a citizen’s review board to screen people’s complaints about me.”

“You mean  a jury trial? Because you can have one of those.”

“No, not a trial. The thing before trial where all the complaints get dismissed.”

“You mean a grand jury? They indict everyone unless you are a cop.”

“It’s too bad I’m not a cop, or I wouldn’t be here right now.”

Unfortunately, my client was probably right.

-Norm

Cry Havoc II: Cry Harder

In Part I of this tale, the County of Santa Asphalt entrusted me to defend a man who robbed a store of its beer at knife-point. After a series of clumsy, ham-fisted questions by the judge and prosecuting attorney, all 18 of my potential jurors had taken the hint that “yes, I can be fair” was the “right” answer. I knew full well that my client had no chance;  my only hope for saving my client from this jury was by making it more likely that they would turn on each other. So now it is my turn to question this 18-pack:

“Mr. DeGuerre, you may begin,” the judge intoned.

I stood and walked to the front of the jury box. This particular judge was known for letting the attorneys take as much time as they wanted (within reason) to spare himself the trouble of asking detailed questions. The real limiting factor was the attention span of the upstanding citizens before me whose regular lives were being interrupted.

Unfortunately, I started with almost no useful information about them. I had so little time to find it.

I looked at the file folder that held my notes. Every district attorney and public defender learns to keep their jury selection notes in the same manner. We start with a blank file folder and arrange 18 post-it notes inside of it in a 3×6 array. Each post-it represents one seat; the top two rows are for the 12 seats in the  jury box and the bottom row is for the six who will replace jurors in the box as they are excused. On each post-it, I write notes about the person currently occupying that seat so I don’t unnecessarily repeat the same questions as the DA. One-by-one, the six seated in the front will replace those in the back 12 as they are dismissed.

Here goes nothing…….

 

When I walked toward the jury box to begin my questioning, I carried this folder with me. I glanced at it one last time before opening my mouth, and wondered for a split-second why I had brought it at all for all of the good it did me.

I clapped my folder closed and looked up at the 18 pairs of eyes, all of them wondering why real court was so much duller than court on TV, why none of the lawyers were even remotely attractive, and what on Earth I was possibly going to say to defend my client.

What on Earth was I going to say?

I then heard a whisper inside my head, a whisper replete with learned over-enunciation. John Adams’ ghost had returned, and reminded me that there was one sure way to lose a case through poor jury selection:

“The most frightful jury is a herd of sheep lead by a wolf.”

Jurors can be divided into two basic types: leaders and followers. Followers will outnumber the leaders. Many of the leaders will harbor biases against my client or my defense; I cannot hope to remove them all. My best option is to ensure that one or two bad leaders are not left with a flock of followers. When in doubt, followers will side with authority–or whomever is the most vocal–and convict my client.

John Adams’ ghost then warned:

“Don’t allow bad jurors to poison the well. Don’t allow good jurors to hang themselves.”

Every so often, a juror will land in the jury box who might single-handedly turn the tide in favor of your client. Perhaps they believe in the wholly Constitutional doctrine of jury nullification. Perhaps they take issue with the state prosecuting “victimless crimes” (these jurors are easy to spot, given their love of wearing sunglasses indoors). Perhaps they have heard or experienced too many colorful stories of police harassment. Unfortunately for my client, these jurors disqualify themselves through their pathological honesty; the judge will ask them if they can be fair, and they will answer honestly that they cannot give the state or its agents a fair shake.

In contrast, the retired police officer, the concerned mother who worries that acquitting your client will endanger her children, and the victim of a crime committed by a guy who looks alot like my client, will all assure themselves and the court that they can nevertheless be fair and impartial jurors in my client’s case. These magic words will keep them in the jury pool until I dismiss them myself.

No matter which group a juror falls into, he or she will talk for as long as I let them. I only need to hear a handful of words before I sort these jurors into one of the two categories. The favorable jurors will blurt out their inability to be fair if given enough opportunity, and the biased jurors will spout endless unfounded prejudice into the jury pool in the same amount of time. For the sake of everyone’s patience, I need to identify who goes in which box as soon as possible. If I tarry, the few good jurors will disqualify themselves. In that same amount of time, the bad jurors will spew their sewage into the rest of my jury pool.

And then, the long con:

“Delay the inevitable; sew discord.”

A jury cannot render a verdict of guilty unless all 12 agree. But to save my client, I need not convince all 12 of my client’s innocence. I simply need to keep them from agreeing with each other. A jury that cannot reach a unanimous verdict is called a hung jury; prosecutors often react to hung juries with a drastically reduced plea bargain. In a handful of cases that result in a hung jury, charges are dismissed outright. A hang is often a more attainable outcome than an acquittal and as good as a win for my client.

With this in mind, I began to question my jurors. I did my best to hear at least one original thought – not in the form of “yes” or “no” – from everyone in the jury box. I did not have time to actually know these people. I did, however, have just enough time to stereotype that person. I asked about their work lives to see if they had ever found themselves standing up to a group of their peers. I imagined potential arguments among the prospective jurors in my head, and I decided which jurors would create the most plausible stew for dischord.

I returned to my seat with 18 hunches.

His Honor dismissed the jurors who had made it clear, during my questioning, that they could not be fair. Once this was done, the DA and I began the “shoot-out.” In most felony trials, each attorney may dismiss any ten potential jurors for almost any reason she pleases. Each attorney alternates, and on each turn the attorney may strike a juror or pass and save their challenge for later.

“The first challenge is with the defense,” His Honor said while appearing to count the number of plaster tiles on the ceiling. I remembered that jury selection is interesting only to the lawyers doing it. As I and the prosecutor had been asking our questions, the judge had nodded off, the bailiff had thumbed through a gun magazine, and half of everyone else had been texting. My client, meanwhile, had been doodling his next tattoo on the notepad I had given him. No one other than the DA and myself saw this process as the thrilling cat-and-mouse game that it felt like for me.

“Your honor, the defense passes.”

The DA raised an eyebrow. Surely I was not going to leave the retired cop, and I was certainly going to kick the guy whose anxiety about life is so vast that he can’t stand to read the newspaper. But if those two were to end up on the same jury as the opinionated grad student and the movie theater employee who gets pulled over by the cops three times per week as he rides his bicycle to work, I just might hang that jury. I might still win.

Meanwhile the DA absolutely could not allow this jury mix. After four rounds, I had passed five times, giving me a 5 challenge advantage over the DA. I now had twice as much power to alter the mix of jurors to my liking. Jury selection continued like this for the remainder of the day, and ended when both the prosecutor and I passed. These 12 jurors and 2 alternates would be the ones to witness the trial.

Ten days later, His Honor declared a mistrial after the jury hung; 10 jurors had voted guilty against 2 for not guilty. Despite the split in favor of guilt, the DA would later make my client an offer with a single-digit prison term on a case that carried a possible life sentence. I considered this a win.

As I mentioned in the previous chapter of this story, jury selection is war by other means. But two sides will engage in war only when at least one of them is gravely mistaken about its prospects for success. If you are ever chosen for jury duty, remember that one of the two sides that you will hear from is very, very wrong about the strength of the case, the amount of punishment it is worth, or, in my case, the liklihood of 12 strangers agreeing on it. Remembering this might help you make sense of what you see in a real courtroom.

Respectfully Submitted,

Norm DeGuerre

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

 

Reasonable Courses of Action for Those Who Might Not Come Home Alive.

“This isn’t a court of justice, son. This is a court of law.” – Billy Bragg

When a jury of six people found George Zimmerman not guilty of murdering Trayvon Martin, I found myself utterly unable to respond to the verdict in real time. For those who have spent the past couple of months hiding in a cave with their eyes closed and ears plugged, George Zimmerman was a neighborhood watchman in Florida. Trayvon Martin was a teenage pedestrian who passed through the fiefdom over which Zimmerman stood vigilant against all the “punks” and “assholes” with his concealed 9mm pistol. Martin carried only Skittles and iced tea that he had bought from the store. Within seconds of spotting Martin, Zimmerman called 911 to report that he had seen Martin, in his neighborhood, doing nothing in particular. Although the dispatcher advised caution and restraint, Zimmerman lamented (in the recording of the 911 call) about how “assholes” and “punks” like Martin “always get away” and he decided to pursue. Zimmerman then followed Martin until Martin physically confronted the stranger who was following him for no apparent reason. In response to the nominal danger that he himself provoked, Zimmerman shot Martin dead.

I found myself unable to muster outrage because, frankly, I wasn’t surprised at the outcome. I also found myself unable to have any sort of conversation with anybody about it because those who either lamented or celebrated the verdict suffered from the same core delusion: that Court-With-a-Capital-C is a place for justice to happen.

Anyone who has spent one minute in an actual courtroom understands that a court is a machine; it has moving parts that fulfill their functions within predictable degrees of verve, skill, and enthusiasm. The list of possible outcomes for a case is limited, as are the possible options that the machine’s players can choose from prior to the case’s final outcome. And when the courtroom deputies radio to the basement to send their “bodies” (in-custody defendants) up to a courtroom for their court appearances, we receive a crude reminder of what this machine processes; it processes human beings. At no point during this process will the victims get their loved ones back, nor will this process heal any wounds or scars. Sometimes property is recovered, but more likely it will be repaid pennies on the dollar through the pittance that the defendant earns for his prison labor. At no point along this route does an accused receive the job training, addiction counseling, and/or long-term psychotherapy that would prevent a huge majority of all crime if they were freely available. At what point does anyone expect justice to squish through the sausage funnel at the end of this process?

Every final outcome in a criminal case represents an outcome that the system was designed to produce. Many years of lobbying by the firearms industry and self-defense enthusiasts produced Florida’s self-defense laws. These laws require no retreat and make no issue of who first instigated the violent encounter or why he did so. All a person has to do is claim that he feared for his life and kill the only other witness to the contrary. And when a person does this, faces trial on national television, and walks out the door afterward, the system works exactly the way that it was designed to.

Now, I have made no mention thus far of the races of either Zimmerman or Martin. The system flatters itself fair and impartial because–on paper–the race if the individuals involved should not matter. But if race does not matter, why was 71-year-old Trevor Dooley (African American) denied an acquittal when he claimed that he shot a man thirty years younger, four inches taller, eighty pounds heavier, and did so in self defense?  Why is a black defendant 354 times more likely to be convicted of murder than a white defendant in cases alleging “self-defense?”  A law that claims to be race neutral while producing racial injustice is, regardless of its intent, a racist law. The courts that enforce racist laws produce racist results.

The courts in Florida and elsewhere enforce laws that make it dangerous for young black males to walk home from the store and dare to defend themselves against a stranger who decides within seconds that they are “assholes” and “punks.” This is not justice, but justice is not what these machines produce.

The solution for law abiding citizens who want to come home safely from the store is to stop relying on courts to produce justice. For the past four weeks, a group of students calling themselves the Dream Defenders have been staging a sit-in protest at governor Rick Scott’s office seeking redress for the laws that allowed Zimmerman to legally kill Trayvon Martin; they are trying to stop the gears of the machine with their bodies. In response, Florida house speaker Will Weatherford has announced his intention to hold hearings on Florida’s self-defense laws. The Dream Defenders clearly understand that justice is something that must be sought outside the courtroom.

Please don’t think of this as a tardy Trayvon Martin piece; I prefer to think of this post as a timely piece in support of those actively resisting the systemic racism of our court system as though their lives depend on it.

Their lives do depend on it.

Respectfully Submitted,

Norm DeGuerre

Did you ever want to be a DA?

Dear Norm:

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

Sincerely,

Buford T. Justice

Dear Buford:

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

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

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

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

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

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

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

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

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

I’ll give you an example.

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

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

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

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

Respectfully Submitted,

Norm DeGuerre

Tales of Moral Hazards – Part I (of many)

“In short, America’s indigent defense systems exist in a state of crisis.” – U.S. Atty General Eric Holder

Fifty years ago this week, a man named Clarence Earl Gideon achieved something remarkable for a man who was forced to represent himself. His handwritten petition for Writ of Certiorari had been granted, and the Supreme Court decided in March of 1963 that his argument – that the Sixth Amendment should guarantee counsel to an accused who cannot otherwise afford it – had merit. Today, every local government provides representation according to the mandates of Gideon v. Wainwright.

But providing counsel for poor people accused of crimes has never been a “winning” issue with the voting public, so counties spend the bare minimum that it deems necessary to provide for that right. Many stereotypes about public defenders are unkind, but none of them is true as often as the one in which the well-meaning public servant simply has too many cases to handle.

Strangely, this situation provides public defenders with one potent weapon.

Although the constitution gives vague promises of a speedy trial, states enforce these promises with specific guarantees. In California, those accused of misdemeanors have the right for their cases to be tried within 30 days of the defendant’s first court date. Those accused of felony crimes have the right for their case to be tried within 60 days of their first court date in Superior Court. If a defendant asserts their right to a speedy trial, then any case postponed beyond these deadlines must be dismissed.

If no defendant waived these rights, the machine would grind to a creaking halt before exploding and spewing hot shrapnel in every direction. In California, many of our most important budgeting decisions are made by popular vote; as much as people love charging people with crimes and locking them away for tragic amounts of time, they aren’t as fond as taxing themselves to pay for the necessary infrastructure. The courts simply cannot handle current case volume unless defendants “waive time,” i.e. surrender their rights to speedy trial.

And if every single defendant refused to waive time, nearly every single case would be dismissed. In fact, since the public defender represents more than 80% of all defendants in a given county, this result would occur if public defender clients by themselves went to trial “time not waived.”

I have personally witnessed the fruits of this tactic. I routinely withdraw my client’s time waivers once I have prepared their case for trial. On any given Monday, I would walk into court with between 7 and 10 cases that had to be tried by the end of the week or be dismissed. Of these, several would be dismissed outright by the DA. Others would be made plea bargains that they would never have otherwise received (“disturbing the peace” was my favorite catch-all charge for my client plea to as part of their deal). Clients who were in custody would be offered credit for time served – a plea that day resulted in their immediate release. If I was lucky, I would still have one stubborn client who refused every deal or the DA would still have one case worth pursuing so that I would get to do at least one jury trial that week. Now, I should state that the reason this “trick” worked was because I wasn’t bluffing; I put in the extra hours so that I would actually be ready for trial on all the cases I brought to the DA.

Even though speeding to trial benefits our clients as a group, it does not always benefit the individual client. Some clients benefit from having their case “age.” For example, clients whose victims are elderly benefit from a little extra time before going to trial (and don’t look at me like that). If a case is complicated and requires extensive preparation, then it is in a client’s best interest to give me the time I need to put together a good defense. Sometimes a key witness doesn’t want to be found and needs to be tracked down, served with a subpoena, and then informed that ripping the subpoena to pieces and spitting on those pieces does not actually release them from the obligation to appear in court. Also, if a client understands that he will be facing a lengthy prison term, then he may want to earn as much credit “locally” as possible. Conditions in prison are far worse than in county jail. There are many reasons a client would want to decline their right to a speedy trial.

A client’s individual best interests may not be the same as the group’s best interests. These can be balanced, but the balancing needs to be cautious and deliberate.

I am mildly saddened to think that public defenders are so overwhelmed with cases that they can often get the best results for their clients by piling all the cases in a briefcase equipped with a [metaphorical!] time-bomb and leaving that briefcase on the steps of court, expecting the DA to disarm it before it explodes. I’m sure that this is not what Clarence Gideon had in mind.

Respectfully Submitted,

Norm DeGuerre