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

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

The Thin Blue Curtain

Dozens of cars whooshed over my head every second; I first heard the engine, followed by thunks of axles bumping over seams in the freeway, and then the air as it tried in vain to catch up in their wake. The lamps fifty feet above the cars were the only light sources; only a little of it snuck past the overpass and made the journey down to where I sat, in a police car, beneath the highway. I was left sitting in a memory of light, like the image that remained when you finally turn off an old television that had been on for too long.

This light left too many shadows. The nearby shipping depots and body shops had long since become “mixed use” developments, which meant they were only used for discussion during city council meetings. They loomed like sad bamboo around the Hotel Antillia – squeezing it against the two-lane road that ran along the freeway above.

Officer Timmons turned on the spotlight mounted to the side of his police car as he pulled into the hotel’s horseshoe parking lot and shined it on the single-story rows of hotel rooms ran along either side. Each room had a front door that opened into the attached carport, swallowing the doors and cars underneath in shadow until the spotlight punched through. The spotlight darted from car window, to front door, to the lone window allotted to each room, and then on to the next room.

This was not the first hotel parking lot that we had roamed that evening – we were looking for anyone who had left their room to smoke, or talk to other guests, or sit in their car. Officer Timmons was free to chat with anyone he saw in public, and if that person happened to be high, getting high, holding an open container, or on probation or parole, Officer Timmons would then further intervene into their evening.

“Outstanding.” I heard Officer Timmons as he braked to the right of a red Corolla in one of the hotel’s parking spaces. No need to undo the seatbelt – Officer Timmons had been in and out of his car so often that night he no longer bothered to fasten it. I peered through the passenger window in hopes of seeing what Officer Timmons had spotted in a matter of split-seconds; a woman’s head shot up from the driver’s lap just as the driver tried to sink lower behind the back of his seat.

“Let me guess, it’s not what it looks like,” Officer Timmons said as the driver blinked in confusion at the officer’s flashlight. Both he and his passenger handed over their IDs without being asked. Officer Timmons read each card as the driver spilled the entire saga of how he and his lady friend wound up in that parking lot.

I rolled down my window just a bit, and pressed my ear to the crack.

“You see, officer, I know that this isn’t the right place to be doing this, but she’s married with two kids, and my room wasn’t free because me and two other guys chipped in to pay the $54 it cost to rent a room and they got back early, and there really wasn’t anywhere we could go, and no one was around, and besides, I have every right to be here because it’s a public parking lot.”

“Yes sir, that’s the problem, you’re doing this in a public parking lot,” Officer Timmons said, the threads of his patience holding steadfast.

Meanwhile, the dispatcher chirped over the car radio and into Officer Timmons’ earpiece. No wants, no warrants, and neither party was on probation.

“Alright, I’m going to be back in a half hour to see if you two are still out here. Take what you’re doing inside, or I’ll take you in,” Officer Timmons warned before returning their IDs. “I can’t have you out here making yourselves targets for whoever might want to jack [rob] you while you two are distracted.” He slid back into the police car and continued his inspection of the Antillia parking lot; the two men who had been chatting across the lot through their respective windows had long since closed their curtains.

My night with the Sequoia Meadow Police Department followed much the same pattern. Officer Timmons had no sergeant or commanding officer dictating where he should patrol, and so he spent the time between calls roaming secluded, poorly lit public spaces. We rolled through the Honduran neighborhood to let the local gangs know that the SMPD was out and about. We shined spotlights into empty parking garages and parks that closed to the public at sunset. We visited the boarded-up meth house across from the union hall, whose tenants had scattered after one of them hanged himself inside. We also found the time to swing by the homes in the hills with three-car garages because, according to Officer Timmons, several of the owners had complained that they don’t “feel safe” without a “visible police presence.”

At around 1:00 a.m., Officer Timmons drove toward the entrance to the SMPD’s parking lot in order to drop me off before his lunch break. On one side were the steel skeletons of new, “affordable” $800,000 2-bedroom condos. On the other side, the gray glass façade of a large investment firm; signs and arrows guided drivers to the designated limousine parking. Officer Timmons wished me a good night and dropped me off at my car. He pulled away and went to grab lunch, which at that time of night was going to come from either a convenience store or a drive-through.

I nearly missed my exit home while driving back from Sequoia Meadow; I had gotten lost in thought. In 7 hours, Officer Timmons would finish his shift and begin his hour-long commute to the home where he and his family could actually afford to live on a police officer’s salary. Officer Timmons will have spent the remainder of his shift continuing to roam the semi-secluded public spaces of the city, looking for people who lack the privacy and/or good sense to indulge their vices indoors. If their crimes are serious enough, Officer Timmons will arrest them; otherwise, he will shoo them away back into the shadows for their own safety. This will also save Officer Timmons from having to drive back to Sequoia Meadow on one of his days off to testify in court.

“The system is broken,” Officer Timmons had told me as we filled his tank with gas at the beginning of our ride-along. I had nodded politely, assuming that his reasons for thinking that would be completely opposed to my own. But as the evening unfurled, I learned that our opinions overlapped to a surprising degree. Jails and prisons take first-offenders and hardens them by subjecting them to an environment of constant fear. The defendants who go in hardened become permanently lost. Those who avoid jail are simply ignored like a cigarette butt on the sidewalk; dopers and hookers are cited, released, rearrested when they fail to come to court, and then re-released, and then they go right back to old habits once they serve their time.

Officer Timmons has to figure out whether the psychotic homeless man is off his meds, on the right meds, or on enough meds and if he guesses incorrectly, the doctors release him to go right back to exposing himself before Officer Timmons’ shift ends. Sometimes, Officer Timmons finds a man leaning against the side of a building, too drunk to stand but awake enough to almost answer his questions. This man would be too drunk to safely book into the jail but unless Officer Timmons can prove the man’s identity, he cannot take him to the “drunk tank” to sober up. The last option is to call for first responders. But then Officer Timmons has to decide how urgent the situation is before calling it in; a “Code 1” (lowest priority) is unlikely to get any response at all, while a “Code 3” was reserved for life threatening emergencies.

These stories came back to me during my drive home. Officer Timmons represents the boundary between the have-nots and have-mores. Sequoia Meadow’s criminal class invited police intervention solely because they lacked the private space to commit their crimes away from prying eyes. In a matter of seconds, Officer Timmons must decide whether he has a legal basis for intruding into someone’s evening. Once he does, he then has to balance what is necessary to keep the city looking safe to the well-heeled residents while rationing the few crumbs-worth of public resources at his disposal. He has only three options to choose from; jailing someone temporarily removes their unsightly activities from public view, but often makes a bad person worse before releasing them back into the world. Calling upon other public resources, such as hospitals or firefighters, cost a tremendous amount of time and money. Sadly, the most efficient solution is to shoo the problem back into the shadows so that the citizens of Sequoia Meadow can tell themselves that it isn’t there. Afterward, Officer Timmons leaves the city to return to where he can actually afford to live.

Making people feel safe without making things better: this is what Officer Timmons meant when he said that the “system is broken.” Despite everything I had seen, I never quite appreciated just how bad things really are.

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

Let Me Tell You About my Morning…

When you ride as a passenger in someone’s car, does the driver then get access, dominion, or control over your anus? I thought the obvious answer was “no, are you kidding me?” This week, I tried — and failed — to convince a judge to share this point of view.

My client stood accused of possessing a controlled substance with intent to sell. This whole thing started 9 years ago when my client injured his back on a construction site at the age of 16. When the prescription opiates ran out–which was right around the same time my client’s various doctors realized that each had been writing him separate prescriptions–he turned to buying them from other people. Codefendant was one of these folks. Eventually, both of them realized that heroin provides the same high and was much, much cheaper and easier to get than the prescription pills.

Client and Codefendant drove from their homes in Santa Asphalt to Stucco Valley to visit their dealer. My client left with 2 grams of heroin, which he stowed in his sunglasses case. Codefendant left with 20 individually-wrapped one gram servings of heroin stuffed into his rectum.

Unfortunately for these two, the Stucco Valley Police Department had been watching the comings and goings from their dealer’s house. They watched my client pull away from the curb and waited for him to (inevitably) roll slowly through the stop sign at the nearby intersection. A routine traffic stop turned into an arrest and search. Client and Codefendant were handcuffed, and placed in the back of the patrol car. Once inside, Codefendant tried to discreetly remove his contraband by planting his feet against the cage that separated him from the front of the police car, arching his back until his face pressed against the rear window, and grunting as he tried to slip two hands in handcuffs into the rear of his pants.

The cops noticed, became curious, and conducted a more thorough search.

This client became my client after his probable cause hearing, during which a narcotics investigator testified that the codefendant had too much dope to be consistent with personal use and that it was more likely for sale or resale. After the hearing, the District Attorney charged both Codefendant and my client with possessing the heroin with intent to sell. My client was accused of possessing all of the dope, including the codefendant’s.

I didn’t have much of a defense for my client regarding the amount found in the sunglasses case. However, I thought I had a pretty decent argument that my client did not possess the amount found inside the codefendant.

I hoped to save my client from having to go to jury trial by filing a motion to dismiss (aka a “nine-nine-five”). In this type of motion, the judge assumes that all the information that came out during the probable cause hearing is true. The defense lawyer then argues that even accepting the truth of the evidence, it does not provide probable cause for the charges.

My “opposing counsel” was actually a 3rd year law student; her supervising attorney had obviously believed that this argument was an easy enough “win” to hand to someone who had neither studied for nor passed the bar examination. I really hoped they weren’t correct–not on this case.

“Opposing counsel claims that this court must draw all reasonable inferences in favor of the charges,” I said during oral argument on the motion to dismiss. “Let’s start by reminding ourselves of what the word ‘inference’ means. An inference is a statement that has not been expressly proven, but whose truth is guaranteed based on other truths. We must also remind ourselves of the legal definition of ‘possession.’ According to case law, a person can possess something without it being on his person. However, the defendant must have more than ‘mere access’ to the location where drugs are found; the prosecution must also prove that he had the right of dominion and control over the area where they were found.”

“Now, the prosecution has conclusively proven that the codefendant received a ride from my client, and that at the time of this ride, Codefendant had 20 individually wrapped bindles of heroin stowed away in his body. However the District Attorney asks this court to infer – from his role as the driver – that my client not only had access to the codefendant’s anus, but the right to dominion or control over it. These ‘inferences’ cannot be guaranteed from these facts; I submit that the District Attorney’s theory is wholly unmoored from the facts and we respectfully request that the court dismiss the charges.”

The court denied my motion.

I can only imagine what the jurors will make of this case when it goes to trial.

Respectfully submitted,

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