Cry Havoc: Jury Selection in a World Without Civic Virtue (Part I)

 

This is not a manifesto on the virtues of jury duty. I will not wax romantic about the importance of juries in our system of justice or in any system of representative government. I hold no degrees in sociology, and so I do not pretend to be an expert on the behavior of humans in large groups. Jury consultants charge handsome fees to the attorneys who can afford their services; in exchange, these consultants provide detailed profiles on the ideal type of juror for an attorney’s case. What I provide here is information that would cause a “respectable” jury consultant to never be hired again, not because it is not true, but because no one in the legal profession wants it to be true.

But for a public defender in trial, jury selection is war by other means. Victory is rarely a plausible option; all too often, we conduct a jury trial for no other reason than our client’s have refused a plea bargain, or because the prosecution refuses to make your client an offer that is sane or humane. Sometimes my “defense” amounts to quibbling about the number of penile penetrations that the victim received (after all, each penetration that I can disprove means years off my client’s sentence). Sometimes my “defense” is saying that my client did not intend to kill his father by stabbing him in the neck, but merely to wound him grievously. Sometimes my defense will rest on solid legal grounds while repelling every other member of civilized society.

My task is to save this client’s life from that civilized society, if possible. No professional consultant would be able to create a profile of a jury that is sympathetic to my client.

Many of these thoughts came together for the first time during a recent trial, or rather, these thoughts spun wildly in my head as my panel of 75 potential jurors trudged into the courtroom where my client’s trial was being held. This particular client was accused of robbery. His robbery had begun as a simple petty theft when he walked out of the supermarket with two large cans of “malt beverage” (the smelly, affordable wasteland between beer and hard liquor). Things changed when the store security guard demanded a receipt; my client responded by brandishing a pointy weapon and saying something vaguely threatening, but definitely rude.

One by one and two by two the potential jurors filled the courtroom seats. Without fail, the first ones in would take the aisle seats, forcing others to lurch over their knees to get to other seats in that row. No one wants to sit next to each other, so everyone tries to leave 1-3 seats between themselves and the nearest seated person. Unfortunately, none of these people bothered to count the number of people in their group, or compare that number to the number of seats in the courtroom; every seat would be filled, and “personal space” was at best a temporary illusion.
Then a voice spoke to me from inside my head. Perhaps this was the ghost of John Adams, our second president and the man who defended British soldiers on trial for the Boston Massacre to a jury of Bostonians , or Jiminey Cricket, or whoever the embodiment of my conscience is supposed to be.

“You need to defend this man sitting next to you..”

 

Upon further reflection, my conscience was definitely more John Adams than Jiminy Cricket.

“You need to defend this man sitting next to you. If these people are going to put him away, then save your client from them.”

But how?! Not even my prettiest talking could save my from the overwhelming evidence against him. My only hope was that my 12 jurors would dislike and disagree with each other so much that they would not unite against my client.

As the great statesman Jiminy Cricket once said, cry havoc and let slip the dogs of war.

The judge summoned the first 18 people into the jury box. Twelve took the seats in the box, and the next 6 took seats in front of it. The front 6 would replace any jurors dismissed from the twelve in the box, and so the lawyers had a preview of who would take their places. His honor then began his questioning of the 18 potential jurors. I clicked my pen twice – a nervous gesture on my part with the accidental benefit of clearing my head before I prepare to jot down as much information as possible about these total strangers.

The judge began by asking what cities the jurors lived in: 10 out of 18 lived in “Santa Asphalt,” the largest city in my jurisdiction, 6 lived in the generic, contiguous suburbs that surround Santa Asphalt, and 2 lived in the affluent town to the south where people move to get away from Santa Asphalt.
The jurors provided their job titles with pride; unfortunately, most of their job titles gave me no idea of what their daily routines actually looked like. When a potential juror says that he or she is a teacher, nurse, dentist, contractor, or food server, I am able to get at least a vague picture of how this person spends most of his or her day. This was not going to happen with this group. To illustrate, you the reader can produce a potential juror’s job title by choosing one word from each of the collumns below.

Column A                Column B                Column C

chief                             systems                       manager

associate                     project                         vice president

deputy                         data                             engineer

assistant                      sales                           analyst

head                            marketing                  specialist

retired                        resources                    consultant

 

After the first fifteen minutes, I had almost no useful information about the people who could be deciding my client’s fate.

The judge continued by asking the following series of questions:

“Do any of you have moral, religious, or philosophical views that prevent you from sitting in judgement of another person?”

“Do any of you have problems with resolving conflicts in the evidence?”

“Can all of you hold all of the witnesses in this case to the same standard?”

“You cannot return a guilty verdict unless you are convinced beyond a reasonable doubt; does anyone have a problem with this?”

The judge took fewer than 90 seconds to ask these questions. Questions go by quickly when your targets respond with only shrugs and blank stares. If you, the reader, are wondering what some of these questions mean, then you are out of luck; the judge provided no clarification or explanation beyond the questions themselves. To top it off, the judge prefaced his final question with “does anyone have a problem with,” the one phrase guaranteed to throttle any possible response. No one wants to be seen as “having a problem” with a rule laid down by an authority figure in a black robe.

Sixteen minutes and 30 seconds have now passed, and I still had no useful information.

The judge turned questioning over to the district attorney. The DA’s awkward sputtering made the judge’s questions look like a thrilling, insightful Socratic dialogue by comparison. He asked whether the jurors would “follow the law” in as many different ways as he could think of. He made them promise they they would use “common sense” during their deliberation. He tried to illustrate circumstantial evidence by telling a story about a kid with cookie crumbs around his mouth (or something like that, I wasn’t really paying attention). After his analogy, the jurors’ quizzical stares, and his self-effacing attempt at humor, he had them promise to follow the law one last time before sitting down.

I checked my watch. I looked up, but then looked at my watch again. 45 minutes?! How does it take 45 minutes to convince a group of 12 non-felons who have driver’s licenses and current voter registration to obey authority and find my scary-looking client guilty without thinking too much about it?

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

 

To be continued…

 

 

 

 

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Criminology 201: Selected Topics in Disorganized Crime

Criminology 201: Selected Topics in Disorganized Crime

In my last post, I discussed a client whose life experience failed to square with the accepted narratives that are taught to police, probation, and corrections officers during the course of their training. I now have a vision of what it would look like if my client were given the chance to communicate his life experience in a classroom setting. If any criminal justice class actually would let this client teach the lessons that he had learned just by living his life, the final result would probably be a wonderfully educational public relations disaster for the school in question. It might climax in a conciliatory letter of some sort to the aggrieved student body, with a short explanation of how little their textbooks had prepared them to comprehend life on society’s margins.

Like this one:

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From the Office of the Academic Dean, William H. Taft Institute of Criminal Justice and Weight Loss:

A number of students who were enrolled in last semester’s Advanced Criminology seminar have petitioned for review of their grades and disclosure of the grading criteria used by last semester’s guest lecturer. Our guest lecturer has provided a complementary set of explanations for the final exam that was given at the end of the term. He hopes that you will then use the lessons contained within his explanation to  figure out what went wrong with the remainder of your assignments, and assures you that “life is hard, but it isn’t complicated.”

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Question 1: Multiple choice, choose the correct answer.

You are a probation officer supervising a juvenile ward. He is often truant from school, and his urine has never tested negative for THC, suggesting daily marijuana use. To aid in this minor’s rehabilitation, you should:

a)    Violate the minor’s probation and advocate for his detention in juvenile hall – the

       minor must cease his violations of state and federal drug laws

b)    Order the minor to enter residential drug treatment for what is clearly a crippling

       addiction to a Schedule 1 controlled substance

c)    Get the minor drug counseling and something, anything, worthwhile to do with his day

d)    Wait until he gets arrested for something more serious, and then figure it out

Half of the class chose answer choice (a), the other half chose answer choice (b). Clearly, neither half had experimented with marijuana in high school. If you had, you would know that marijuana is not a reason to skip school; the decision to skip school is made completely independently of the decision to smoke pot. School holds nothing for a huge number of these children. They often have learning disabilities, or anger problems, and largely-inherited substance abuse patterns. They need far more help to succeed in school than they receive, and many predict their own failure early and throw in the proverbial towel. And with all this free time these kids now have, why not smoke pot?

Of course teenagers shouldn’t be smoking pot. It interferes with their brain development, screws with executive functioning (very relevant for someone debating the merits of stealing a car), and creates a lifestyle that makes it very hard for them to interact with professional adults (teachers, employers, customers, etc). But pot isn’t dangerous; in fact, it has no known fatal overdose. Depriving them of freedom for smoking it is counter-productive at best, and completely self-defeating at worst. Of course, some sort of intervention is necessary, and without it, this minor will likely end up in serious legal trouble: not because of marijuana, but because of the people in his life who also happen to smoke it. Those who reside in the real world will answer with choice (c). Those who are already employed in the system might answer with choice (d), but that’s not the right answer either.

Question 2: Multiple choice, choose the correct answer

Which of the following can be considered as proof that a juvenile has joined a gang?

a)    Wearing baggy jeans

b)    Living in a neighborhood that is controlled by a gang

c)    Spraying gang graffiti on a highway overpass

d)    None of the above

To those who chose an answer other than choice (d), consider for a second that the word “gang”suggests a semi-disciplined criminal conspiracy. Wearing certain styles of clothing, even if that clothing bears the colors or logos that gangs use to identify themselves, says nothing about whether a person is a member of any such organization. Anyone can wear a certain color of clothing, and clothing can be shed at will when the social group dynamics cease to reward the teenager for wearing them.

Like conformist fashion tendencies, mindless vandalism is also common to at-risk youth. Anyone can spray anything on any surface; the vandal does not need to have been given orders to do so in micro-writing that was smuggled out of a maximum security cell block in the anus of a corrupt corrections officer.

Finally, while many gang members have the misfortune of growing up in neighborhoods that are already divided into gang rivalries, no sane person chooses to live there. People are born there, stay there, have no hope of ever leaving there, and will probably die there. These kids have roughly the same life expectancy as someone living in the Middle Ages. Gang membership is assumed by rivals just by virtue of that child’s neighborhood. Before the child knows it, he is choosing his bus routes to school so as to avoid “rival” territory. He is already suffering the drawbacks of gang membership; wanting to accept the benefits is an easy sell, especially if they have no other alternative for safety. Again, the correct answer is choice (d).

Question 3: Short answer

What does it mean to “hold someone accountable” for his actions?

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Holy shit. As often as I heard you say this during our class discussions, very few of you seem to know what this phrase actually means. Holding someone accountable doesn’t mean showing them that their actions have consequences: anyone who has witnessed a car accident understands this. It doesn’t matter how many years of prison a person receives; the Convicted does not need you to remind him, repeatedly, in varying tones and volumes, that his own actions resulted in tremendous loss to himself and others. I suspect that many of you relied – to your detriment – on the thesaurus, which lists the following as synonyms for this phrase: attack, brand, blame, denounce.

Holding someone accountable for their actions entails building empathy for those affected by their actions; these parts of the brain may have atrophied from years of mistreatment in childhood, so we need to be patient. Holding someone accountable includes teaching them about alternative choices that could have been made. Extensive work needs to be done with those who – with or without reason – felt that they had no choice in their actions. Too many of your answers would have fit on bumper stickers, let alone three lines. Put more thought into phrases that are used so frequently. And for God’s sake, stop thinking in slogans.

Question 4:

Describe a situation where a person might plea “no contest” to a crime that they did not commit.

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Again, a disappointing number of blank answers for this question. The students who confronted me about this question after class insisted that no one in their right minds would do such a thing. During the course of these conversions, I inferred that none had ever been given poor legal advice by an attorney that either did not have the time to care, the ability to care, or the retainer to care about that person’s case. A depressing number of Accused plea because, quite simply, they do not have confidence that their attorney has heard, understood, or investigated their defense. And without a defense, why wouldn’t they plea?

Do not underestimate the frightening penalties that follow trial, especially in jurisdictions where the criminal sentencing laws (and the judges tasked with imposing them) are left to popular vote. Many, many innocent people (or people who have a colorable argument for their innocence) surrender their rights simply to minimize risk.

Finally, don’t underestimate how often the district attorney uses a “devil’s bargain” to coax a plea from a defendant who has a strong defense. In fact, the deals become more irresistible as the prosecution’s case weakens. For example, a defendant who is in custody on the day of trial will find a “credit for time served” offer irresistible. An 18-year-old will plea to terrible things in exchange for minimal time. A good lawyer will sometimes advise him or her not to take the deal, but the defendant will always respond by asking, “But I get to go home today?” In California, an 18-year-old becomes a walking life sentence if the charges to which he pled happened to be “strike” offenses; his next felony case might result in a life sentence. The DA gladly cuts time up front with the expectation that they will get him later; and if his record is made serious enough early on, that “later” can last the rest of his life.

I know that the premise of this question hurt some students’ tender sensibilities, but taking my lectures seriously would have given you plenty of material for to answer this question.

Question 5: Essay

Part I: Consider the the following hypothetical. The minor described below is a ward of the juvenile delinquency court and you are his probation officer:

    Jaime is a 15-year-old high school freshman. His mother probably should not have had children until she had a stable relationship and/or living arrangement. Jaime’s mom probably should have tried to have all of her children with one person, rather than several people. Jaime’s father should have attended his domestic violence classes like his probation officer wanted to. He also shouldn’t have died when Jaime was 9 years old. Jaime’s mother should have finished her drug rehabilitation program and should not have relied as heavily upon her own mother for child care. Jaime’s mom should not have dropped out of high school, because Jaime’s mom should not have had to settle for working a graveyard shift at the front desk of a shady motel by the freeway. Even though she insists upon working this job, Jaime’s mom really should be getting home in time to make sure that Jaime and his little brother are getting to school on time.

    Jaime should never have failed his first semester of high school. Jaime should have studied harder and placed a greater emphasis on his education. Jaime should not have gotten himself suspended for fighting; Jaime should learn to control his seemingly irrational bouts of anger. Jaime should not take his anger out on his family by punching holes in the wall. Most importantly, Jaime should not be cutting class to smoke marijuana.

Part II: Please comment on the following, and show how it would influence the way you would approach Jaime’s supervision:

When you use the word “should,” you are arguing with reality.

Unfortunately, I have no sample answers to discuss because none of you attempted an answer. This was disappointing given the preoccupation that most of the class expressed concerning criminal street gangs. Several students expressed interest in stopping violent gangs, mainly because of some awful episode of Lockdown: Life on the Inside that they insisted upon mentioning in class.  However, none of you realized that little Jaime is a prime candidate for gang membership. Kids love group identity, and young men love a sense of feeling power and control.

Imagine the many, many niches in Jaime’s life that would be filled by a gang. He would have family, safety, financial opportunity, and a steady drug source within one social circle. Eventually, Jaime will get caught. He will be arrested. He will be sentenced according to the astoundingly severe sentencing laws that Californians put on the ballot. As a result, Jaime will possibly serve 10, 15, or 20 years in prison on his first case. And with nothing to do for 10-20 years, and with no social capital other than gang membership, what do you think will happen once he gets to prison? Prison gangs are the Frankenstein of California’s criminal justice scheme, and fixating on what someone should do, taking decades from their lives for things that they should not have done won’t actually fix anything.

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Well, readers? What is your answer to Question 5? How would our approach to criminal justice issues change if we addressed the real world as it is, and not how it “should” be? Anyone? Anyone?

Please share your thoughts in the comments section. I would love to hear some new ideas.

Respectfully Submitted,

Norm DeGuerre

Criminology 101 – Advanced Theories of Street Crime and Hard Time.

“There was crime, but it sure as Hell wasn’t organized.”

This is a quote my client told me in an interview room at the jail while recounting his growing up as a gang member in an agricultural community about two hours away from my county’s Hall of Justice. Nearly all of the adults in his life had been unemployed and/or addicted to something. He and other kids who roamed the streets–instead of going to school–banded together, usually under the influence of some older brother who had just recently been released from prison. They wore the same colors and got the same tattoos. But this was no paramilitary criminal conspiracy; most of this group’s crimes revolved around drugs and fighting.

This client was baffled that the laws that had been passed to catch sophisticated criminal conspiracies were being used on him. He was accused of helping his codefendant sell $1500’s worth of stolen property to an undercover cop. And by “helped,” he actually sat in the codefendant’s living room drinking 40 ounces of something vile while the codefendant sold stolen property to an undercover cop. But because he and codefendant grew up with each other and had been members of the same “gang,” the district attorney believed that he was somehow furthering a criminal conspiracy merely by his presence, which happened to be on the couch, drinking.

Within days of that fateful bout of day-drinking, my client checked himself into rehab. Weeks after, he began the necessary court proceedings to get visitation rights for his daughter, who prior to that had been on the verge of being placed into foster care. He no longer had to live with his old gangbanger friend or rely on his old gang ties as currency for life favors. And then the district attorney indicted him.

He spoke with pride about the two community college classes that he had passed between bouts of incarceration. He mentioned having a fantasy in which he was able to share his life experience with future law enforcement in a classroom setting. And I had to wonder what that would look like.

Few if any of the professionals working in the field of criminal justice have any personal experience that allows them to relate to, let alone understand the people on its receiving end. Communicating that experience to others is a challenge that I will take up in my next post.

Respectfully submitted,

Norm DeGuerre

It Looks Like You’re Trying to Instruct a Jury…

Good Morning, Your Honor!

It looks like you’re working on a set of jury instructions. How exciting! Clearly you’re in the midst of a jury trial, and you’re almost ready for the closing arguments. Of course, you’re going to warm up the audience by reading a 60-page packet of jury instructions for about 45 minutes. Although the two lawyers in your chambers would prefer working on their closing arguments to watching you argue with MS Word’s automatic formatting decisions, you and I both know that finishing these instructions in their presence is a much more important use of everyone’s time.

Hey! Why did you close me?! For the past twenty minutes, I have watched you mash the left mouse button in a vain attempt to change the line spacing. You clearly need my help!

Wait! Don’t close me again. Did you know that giving an incorrect instruction is reversible error on appeal? Ha, clearly you knew that; these instructions were written by judges for other judges to read, slowly, repeatedly, in chambers and in open court. Who knows whether the jury will actually understand them? That is clearly not the point. Now kindly move that cursor away and get back to reading. We have lots of agonizing to do while these two lawyers drum their fingers.

It looks like you’re working on the “reasonable doubt” instruction. This whole instruction looks risky to me. Didn’t one court of appeal say that trying to define reasonable doubt is like playing with fire, because any attempt at defining “beyond a reasonable doubt” almost inevitably makes the burden of proof sound lower than it is?

Oh, your added instruction makes everything clear: “Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true.” This won’t be a problem, because it gives no definition whatsoever. How does such a solemn phrase manage to convey absolutely no information? How many of your twelve jurors know what “abiding conviction” means? Do you even know what it means? How does it differ, in substance, from just saying, “proof beyond a reasonable doubt makes you really, really, really sure that this guy is guilty?” Refusing to give any information is a great way to make sure that you don’t give wrong information! Also, I especially like the way it avoids comparing “beyond a reasonable doubt” to the other levels of proof in the legal system:

      Too much information for a jury instruction     

This way, if the defense lawyer actually tries to instruct the jury beyond what you’ve written by contrasting “beyond a reasonable doubt” to other levels of proof, the DA can point out, in his rebuttal argument, that YOUR jury instruction gives NONE of this information. The DA gets to hint that the defense lawyer has pulled all of this information from his rectum, even though the DA knows full well that everything the defense lawyer said was true. I love it when lawyers are sneaky!

A tired-ass “guilt-o-meter” chart that also isn’t in the instruction

Oh, it looks like you’ve moved on to jury instruction #355. “The defendant has an absolute constitutional right not to testify … Do not consider, for any reason at all, the fact that the defendant did not testify.” Hey Judge! Whatever you do, under no circumstances are you to think about a giant squid. You didn’t think of a giant squid just now, did you? I just told you not to! How do you expect this jury to follow an instruction not to think about something that you just made them think about?

Hey! Can’t you see that your hanging indents should be set to 0.38, and not 0.5? Don’t worry; I’ve gone back and changed all of the indents in your document. You’re welcome.

It looks like you’re working on the final pre-deliberation instruction. Do you remember that today is Wednesday? Do you understand that you will likely be giving this instruction on a Thursday afternoon? Do you think it might be worth adding something about not jumping to a verdict on Friday afternoon just to avoid having to come back on Monday? When do we get to the instruction that at least acknowledges the real world and its prejudices? Why do all of these instructions read as though they were penned in a hermetically sealed vacuum by people whose professional and personal identities hinge entirely on the presumption that our system is actually fair? Have none of these people ever served on a jury?

Ok, that’s enough for me. I’m done, Your Honor. Let me know when you need help writing a letter in Times New Roman.

[Clippy and his likenesses remain the property of Microsoft Corporation; clearly no one else wants him.]

Respectfully Submitted,

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

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

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

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

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

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

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

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

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

And the adventure begins!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Congratulations! You made it! How do you feel?

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

Respectfully submitted,

Norm DeGuerre

Through the Looking Glass or What the Fortune Teller Taught Me About Burnout

Once upon a time, in the days after Young Norm had discovered girls but before girls had discovered Young Norm, a carnival came to a certain small town in California.

Between the henna tattoo tent and the tent that celebrated local history through diorama projects lay the tent of a fortune teller. She clambered from her tent at the sight of impressionable prospects and offered to tell our futures. She then noted the quizzical eyebrow raise that I gave her.

“I know you think I’m full of shit,” she mumbled while holding a Camel between her gums.

Indeed, I did think that she was full of shit. And at that moment, I knew her to be a true seer so I handed her 90 minutes of fast-food wages and gazed into her crystal ball. The results were strangely telling.

I saw the rewards of a college graduation. My bachelors in liberal arts and complete lack of familiarity with the “real world” had crafted me into either the world’s most average high school teacher or the world’s most overqualified barrista.

I then saw the rewards of an even higher education, law school, as a smug over-achiever filled with false confidence believing the economy would stop sucking once I earned a JD.

I heard the sighs of relief from my family; He’s a lawyer now! He’s going to go work for the county defending criminals! Not only does he get to be a lawyer like the kind you see on TV, but he also has a stable government job and a constructive outlet for those anarchist tendencies that used to get Young Norm into so much trouble.

Fast forward to my second felony trial tour. My boss is giving me serious felony cases now, ones I can’t talk about in polite company. Gone are the days when I represented “dudes” who received “child porn” under the guise of boob shots from their 17-year-old girlfriend. Now, I’m receiving recorded interviews where a 7-year-old is calling my client “the bad man” before telling police what he did to her. I’m defending kids who stab each other for wearing the wrong colors in the wrong neighborhood. They’re charged as adults and getting sentenced to the very prison system that created California’s current street gang problem.

I see the effects of the systemic underfunding of public education in my student loan bills; they persist even though I pay more on them each month than my rent. Yes, I still rent. My father, with only a high school diploma, was choosing a second, “more suitable” home by my age.

At least my wife still suits me just fine.

I see myself doing a closing argument. I burnished my presentation to a professional shine over the course of a semi-sleepless weekend, nursing my sanity with coffee and encouragement from loved ones. I see the prosecutor stumble-fucking his way through his closing and then his rebuttal, lacking any sort of polish, logic, or reference to actual witness testimony but containing more than enough fear-mongering and judgmental outrage to get him a win. My “guilty” rate soon surpasses that of almost any district attorney.

I see row upon row of prison cells. Cells in Soledad, Folsom, Kern, and Pelican Bay filled with men who had at least one thing in common: I was their last lawyer.

After twenty years I catch a glimpse of retirement. The voters had become angry that the private sector had busted their unions, liquidated their private pensions, and relocated manufacturing and production to “more efficient” economies. They have grown bitter at those who decided to work for the government, now jealous of a salary that was once less than half the private sector equivalent. I am now devoid of any hope the economy will ever stop sucking. I see myself not being able to give my grandchildren the kinds of Christmases my own grandparents gave to me.

“Jesus,” the fortune teller cackles after lighting another cigarette and returning the pack to her bra, “Is that really what you want?”

Actually, this story never happened. I never paid for a fortune teller, and she gave me no preview of the doubts and worries that I now have in the middle phase of my adulthood. The visions are real, but the timing is very recent.

I am currently in the midst of my first truly serious felony trial tour. And so many of my cases cannot resolve, for a variety of reasons. Client is crazy. DA is insufferable. And sometimes my client just didn’t do it.

And so I set these cases for trial, often without waiving time, as I gain nothing by postponing the inevitable. New cases come in continuously, and so the cases that cannot be settled must be tried as soon as possible simply to reduce my caseload.

And in this context, I see how burnout comes upon a public defender. Despite my most well-meaning, competent efforts, and despite that I typically outclass the average district attorney, my client goes down like a brick. Some days, I feel like all I’ll have to show for it upon retirement is a sizable section of the bloated prison population that had me as their lawyer at some point in time.

So is this really what I want? Courtroom battle still carries a thrill that, I think, leaves me with more energy than it takes. My family and loved ones are always there. And I have a deep, abiding belief that service to one’s community is in one’s own best interest.

And convincing twelve random people of any given client’s innocence is easier for me than convincing a potential employer (and myself) that I would rather review contracts at my desk for 90 hours a week.

Respectfully submitted,

Norm DeGuerre