A Reluctant Call for Mercy Killing: This Lawyer’s Opinion

The time has come for the criminal defense community to rethink its well-rehearsed response to the following question:

What would happen if every defendant who wanted a trial got one?

Michelle Alexander at the New York Times posed this question in 2012…or more accurately, Ms. Alexander interviewed a former defendant named Susan Burton, and it was Ms. Burton who posed this question. Ms. Burton had served multiple jail terms for drug related offenses. Each time, she got out by accepting the prosecuting attorney’s plea bargain. Each time she got out after serving the sentence she agreed to serve, the state released her back into the under-served, over-policed neighborhood from whence she came. Her status as a convicted felon barred her from job and housing options, and her freedom lasted only as long as it took for the police to find another reason to drag her back in.

Ms. Burton’s story is too common. The criminal court system in the United States jails a larger fraction of its citizens than does any other system in the world. The numbers of imprisoned African American men are the most shocking and shameful; the United States jails more people than were jailed in the Soviet Union during the heyday of Stalinism, and the United States jails a greater percent of its African American men than the percent of Soviet citizens held in the gulag.

Ms. Burton’s question strikes the beast in its one weak spot; the people who promote this mass brutality don’t want it badly enough to pay for it.

Before the federal courts intervened, California’s prisons were stuffed to 175% of their designed capacity. The state later passed several laws designed to reduce the swelling: California’s infamous Three Strikes law now only applies to those whose “third strike” is serious or violent, prisoners can serve their time for property and drug crimes in local jails instead of state prisons, and simple possession of any drug is now a misdemeanor. These reforms came not because California suddenly realized that narcotics had long since won the War on Drugs or that all life was too valuable to take from someone for just any felony; they came because California had neither the money to build more prisons nor the stomach to raise taxes for that purpose..

California’s death penalty will likely share the same fate; Judge Cormac Carney ruled in 2014 that California’s death penalty was unconstitutional because the state did not provide enough funds to hire competent defense counsel who would “exhaust” all of the appellate options for the condemned so that he could be executed. There were no appeals to the inherent worth of every human life, even ones who have taken other lives from us, and California was not overcome with the shame that should come from being among the last regimes in the industrialized world that practices capital punishment. California still wants to kill people, just not enough to pay for the due process that must come beforehand.

At the trial court level, more than 90% of all criminal cases resolve by plea bargain and not by trial. As Ms. Burton pointed out: if every defendant demanded a speedy trial, the courts would collapse under the weight of all those rights happening at once. Cases would be dismissed for lack of court resources and the regime of mass incarceration would become too expensive for the courts to bear. So what would happen if every defendant who wanted a trial received one?

I posed this question on social media (on Twitter @normdeguerreesq): if bringing the system to its knees is in our clients’ best interest, why aren’t we doing it? This got a little bit of attention, but the response makes me think that the question wasn’t interpreted the way I had intended. Mark Draughn at Windy Pundit and Mark Bennett at Defending People wrote answers to a slightly different question: why don’t we just take every case to trial so that the system buckles under the pressure? Both writers responded with the same answer that every young public defender hears from her supervisor when she daydreams aloud about using her massive stack of case files to bring the system to its knees by trying every case.

Both Mr. Draughn and Mr. Bennett seem to interpret my tweets as though I had suggested that every defendant should choose to go to jury trial. Such a tactic would most certainly be unethical if recommended to all defendants regardless of their individual situations. Ethically, a lawyer is bound to pursue the best interests of each individual client and not her clients as a population. There are some philosophical discussions to be had about whether or not the interests of the many would actually benefit the interests of the few, but this is not a conversation for boots-on-the-ground lawyers like myself and it is most certainly not a call to action I advocate. The defendants who will be hurt with a stiffer sentence after trial should be encouraged to plea, as should those who – for whatever reason – are being offered a sweet deal by the DA. I use my experience as a PD to advise my clients whether or not a deal is worth taking.

However, I am not asking whether we should encourage every defendant to go to trial. I am asking, what would happen if every defendant who wants a trial got one? The difference between these two questions is subtle but important.

To answer this question, the lawyer must accept that being a defendant’s attorney entails being his voice of reason behind closed doors and the voice of his client’s best interest in the courtroom. Despite the histories of poor choices that often land a client’s file on our desks, the decision of whether she wants a trial is hers and hers alone, and that choice must be respected so long as the lawyer has shared his honest, candid professional opinion about the merits of any plea deal and the risks of going to trial. If there is a concern regarding client’s competence to stand trial, that decision is referred to medical doctors and judges. So long as my client is competent, as her lawyer, I treat her that way.

Too many lawyers can’t bring themselves to honor a client’s decision with which they disagree. I have heard public defenders and private lawyers yell at their clients in the courthouse hallways and berate them for not accepting their plea bargains. These lawyers win their guilty pleas, but not because the plea bargain was that much better than the likely post-trial sentence and certainly not because the client has finally accepted his lawyer’s wisdom. These clients still want a trial but no longer believe that their lawyers will actually fight for them. It is this situation I am speaking to.

For every client who wants a trial to get one, the defense bar will have to remind themselves that their clients are the ultimate masters of their own fates. The attorneys who fear trial for whatever reason will have to grow a spine and polish their skills or otherwise find a new line of work. The charred and crispy public defenders who have been doing their jobs for too long to try cases will need to step aside, take their pensions, and make room for new blood.

Finally, and most importantly, we must remind ourselves that Constitutional rights have value, and they should not be surrendered unless the accused is being offered something of comparable value. We need to remind ourselves this when we are tempted to tell a client to plea simply because he is guilty. A client’s guilt is largely irrelevant to whether a plea bargain is in his best interest; what matters is whether the state can prove it and whether the proposed plea is lower than the likely post-trial outcome. If the answer to either question is “no,” then the client’s case should be tried.

Frankly, many lawyers need to recalibrate their sense of whether a plea bargain is actually worth taking. Ms. Alexander’s article has a particularly vivid example of a plea bargain that probably looked more attractive than a trial…at first:

Take the case of Erma Faye Stewart, a single African-American mother of two who was arrested at age 30 in a drug sweep in Hearne, Tex., in 2000. In jail, with no one to care for her two young children, she began to panic. Though she maintained her innocence, her court-appointed lawyer told her to plead guilty, since the prosecutor offered probation. Ms. Stewart spent a month in jail, and then relented to a plea. She was sentenced to 10 years’ probation and ordered to pay a $1,000 fine. Then her real punishment began: upon her release, Ms. Stewart was saddled with a felony record; she was destitute, barred from food stamps and evicted from public housing. Once they were homeless, Ms. Stewart’s children were taken away and placed in foster care. In the end, she lost everything even though she took the deal.

Too many lawyers toss aside their client’s misgivings about their plea bargains. “Yet another example of my client’s bad decision making,” they may tell themselves. These lawyers need to remember that unlike their clients, they themselves have never had to live with the consequences of a plea bargain. Probation is no “bargain” if the client cannot or will not jump through the many hoops that come with it. A plea for a short prison term might end up doubling or tripling the client’s next prison term; lawyers may be selling a life sentence on an installment plan. Millions of defendants and their lawyers continue to cooperate with mass incarceration by surrendering their rights, but this amiable cooperation has lead to record numbers of people serving record numbers of years in prison. This tells me that most defense lawyers have been very, very wrong about whether plea bargains are worth taking.

As Ms. Alexander’s article points out, not every defendant needs to go to trial for sparks and flames to fly from the joints of the mass incarceration machine; I believe that the system is so underfunded that defense lawyers could collapse it simply by providing their clients the information and confidence to make their own informed choice and then honoring that choice. What could possibly be controversial or unethical about that?

Many of my peers continue to wring their hands and fret at the idea of making social change through individual representation. “If the police are running amok and if the laws are unjust, then they must be reformed and rebuilt,” these lawyers might say. These lawyers, like Cicero in the days of the old Roman republic, believe that appeals to mercy, decency, and reason will bring out the best in their fellow citizens; justice and reform are just one long dialogue away. But I believe that every institution works they way it does because someone benefits from the status quo, and that someone is most likely in power and will resist any efforts at change. Stabbing the monster in its one weak spot and starving it of resources remains the best tactic; this is why generations of new public defenders continue to ask, what would happen if every client who wanted a trial got one?

Respectfully Submitted,

Norm DeGuerre

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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

 

Where Did All You People Come From?

So I started this blog (or blawg, get it?) with the goal of it being equal parts catharsis and creative writing project. I’ve been pleasantly surprised at the number of people who stumble upon this blog and at the number of truly fascinating individuals who have shown an interest in what I have to say.

So thank you to my community of bloggers, of other public defenders, private lawyers, writers, thinkers and those interested in the US justice system and how it actually works. From whatever side of The Bar or bars you happen to be looking from, I’m glad we can connect here.

Specifically, I appreciate the support of my first blog friend, Dan Mullin, at the Unemployed Philosopher’s Blog; Gideon at A Public Defender; the folks over at Popehat; Scott Greenfield; my appellate friends The Squawk and Jeff Gamso; Windy Pundit; and everyone who has emailed, tweeted, or terrorized Facebook friends with my posts.

And Canada! Canada is home to a surprising number of regular readers. I love the shit out of you, Canada.

And to readers outside of North America: Welcome! Velkommen! Willkommen! Welkom! Maligayang pagdating! Vítejte! Bun venit! Boas-vindas! Bienvenida! and Bienvenue! This blog has had visitors from 22 countries on continents other than my own. I have no idea how many visits were the result of Google-related accidents (at least one reader was looking for “jailbait”), but many have clicked around to different posts upon arrival. I think that’s pretty neat.

Finally, to the folks who googled “Chasing Truth” in search of the Christian metalcore band from Gilroy, California; you’re almost there. The truth you’re chasing can be found at their Myspace page. I can’t promise that all of your future spiritual inquiries will have such tidy answers. Please come back any time. We’ll discuss.

My “Dear Norm” posts are composite questions I’ve been asked over the years, but I am interested in responding to actual reader inquiries, especially from those trying to understand the legal system from the outside and from overseas. You can connect with me via comments on my blog, on twitter @NormDeGuerreEsq, or by email at NormDeGuerreEsq(at)gmail(dot)com. Of course, the only legal advice I can give you is not to take legal advice from someone whose credentials have not been properly vetted.

It’s awfully nice to know that when I look through my computer screen to the internet, there is someone, somewhere on the other side looking back. It makes me want to write stuff worth reading.

Respectfully submitted,

Norm DeGuerre

Dear Norm…

Dear Norm:

How do you defend people when you know they are guilty?

Sincerely,

Gill T.

Dear Gill:

Believe it or not, I appreciate this question. I appreciate it every time it is asked, because it gives me the opportunity to correct what I expect are cherished misconceptions about how our “justice system” actually works.

Your question is more complex than you may have expected. There are both practical and philosophical ways to understand my duty to defend the accused.

1) Just because a client is guilty of SOMETHING doesn’t mean he’s guilty of EVERYTHING the DA has accused him of doing. On the night of their respective arrests, my clients were likely not involved in the type of activity that would be considered “innocent.” Yes, one client may have kiestered (yep, it’s a verb) several grams of crystal meth into the jail, but he insists that it was for his own “personal” use. A client may have stabbed a rival gang member in the stomach and then in the neck, but the screeching of his brakes before he jumped out of his car to do the deed shows that it was hastily-conceived murder, not “premeditated” murder. There are many ways for a DA to charge the same act, and the punishments vary wildly depending on which penal code sections they decide to hurl at my client. Often, the state will accuse my client of the most that they think they can convince a jury into believing, not what my client actually did. (So not fair!) If the DA’s office charged my clients with what they actually did, many of my clients would likely confess and thereby save a whole pile of tax dollars. Just because my client is guilty of something doesn’t mean that he’s guilty of everything he’s accused of doing. And that’s where I come in.

2) The Sixth Amendment to the US Constitution guarantees the accused the right to counsel. An additional two rights belong to the client and the client alone: the right to a jury trial (or to plea to the charges), and the right to testify (or not) at that trial. In order to make those rights more than lifeless scribblings on discolored parchment at the National Archives, the court appointed lawyer needs to table his or her tender sensibilities and find something worth saying in the event that your guilty client decides that he doesn’t want to plea. Basically, how I feel about my client is completely irrelevant to the job I have to do.

3) When you spend enough time with a person, especially in a confined space, it is fairly easy to remind yourself that this human being is not different – in any meaningful way – from every other human being that you have known. When my clients share even a tiny sliver of their life story with me, I quickly realize that very few of their personality defects or social pathologies would not have been remedied by having access to more money and at least one caring adult during their formative years. It is not uncommon for people who are abused to later abuse others or to be a victim of abuse. (This isn’t true of everyone, but the more disadvantaged a person is, the likelier this outcome will occur.) So my client beat up a rival gang member, and the other kid almost died. I admit, that’s pretty bad. But where was the “justice” system when my client’s stepdad was beating him as a 13 year old while his mom looked on? Why weren’t my tax dollars being used to educate him so that he has legitimate opportunities for employment? What “choices” did my client actually have to avoid his current situation? Answer this question again knowing that minorities are overrepresented in prison populations. Shouldn’t his punishment be reduced in proportion to our (society’s) responsibility?

I also remember that my client’s opponent is the STATE OF CALIFORNIA, which includes: a small army of police officers, several hives of district attorneys, laboratories of criminalists, and a vast reservoir of out-of-touch retirees to serve as jurors. My clients will be sentenced according to laws that were passed by ballot initiative, i.e. by voters who love double-digit sentences but hate the taxes necessary to house what will become it’s geriatric prison population with some semblance of dignity. Yeah, my client may be guilty, but in many cases the potential punishment is even more appalling than whatever crime he committed. Also, this carries more when you remember my previous point: my client’s family may have always been working against him, too. Often, I am the only person on my client’s side who is thinking of his best interest. With my juvie clients, I sometimes got the impression that I was the only adult ever to have done so.

All right, up until now, I’ve kind of avoided the question. This is because abstract existential issues don’t come up in my day-to-day assignments. In fact, the only client who ever gave me the “willies” was passed off to another lawyer when I changed assignments. But I would have defended him with my very best effort. Here’s why:

The adversarial system is in place so that innocent people are kept out of jail. I presume my clients are innocent. Even if I know otherwise, I am still obligated to act as though (because if I can’t, who else will?). If a guilty client goes free, it means something went wrong in the system: the wrong person was arrested, the evidence was seized illegally, my client was too deranged to know what he was doing was wrong, or the DA screwed something up.

In short, if the system is working properly, I should not win. And if my client is found guilty despite my best efforts, then our society has the satisfaction and peace of mind knowing that we don’t put innocent people in jail without giving them a fair shot. (In theory.)

I trust the justice system to do it’s job. For the system to work, everyone has to do their job and do it well. This means that cops do good police work and don’t resort to harassing citizens. This means that DA’s charge clients with what they actually did instead of trying to trump up charges or use dirty tricks to get promoted faster. (Or, that they actually try cases instead of settling for lesser charges. You might see how this particular fault doesn’t upset me too too much, but it should you!) This means that judges are impartial and enforce the law. This means that I do my best to provide a defense for the accused. I’m only one part of the larger whole.

In short, everything else in society is designed to rain moral judgement (and shocking consequences) upon a client’s head; perhaps his lawyer can be the one person who can restrain the urge to judge him?

I hope that this answered your question, dear reader. Other readers (dear or otherwise) should feel free to submit questions themselves. Informed readers make for better voters and jurors; my future clients will appreciate that.

Respectfully Submitted,

Norm DeGuerre

Welcome to my workaday world…

When people in their late twenties and early thirties gather to drink and converse in public, “What do you do for work?” is the typical ice breaker question. Oh, so you’re a consultant. And you’re a programmer? And your wife is a project manager…

Me? I’m a lawyer. I’m a public defender. No, I don’t “defend the public” from criminals. I defend people who are accused of crimes but who can’t afford to hire their own lawyer.

And then, the follow-up question comes. Without fail, I am always asked The Question:
How do you defend those people?

The best thing about being asked The Question every single time a new acquaintance finds out what I do is that I get to practice lots of different answers. With family members (and others with more tender sensibilities), the best answer is the earnest one. A legal system that flatters itself “fair” and “impartial” must treat everyone who comes before it with a basic modicum of dignity. My clients don’t often receive dignity from the world of poverty, drug addiction, and/or psychological trauma from which they come. And even if my client did something truly awful, the only person who will treat them with dignity and ensure that the system doesn’t cheat in its haste to remove him from society is–or should be–his lawyer. It’s a role that I enjoy playing, and every so often, justice comes out of it. That’s how I defend those people.

Sometimes this answer takes too long. Sometimes the listener has spent too many college years avoiding the talky-chatty classes that enable one to absorb humanism and civics at the same time. Sometimes they find it easier to hold on to the rigid value system learned in childhood than to let go of prejudices and look at the messy choices one must make as an adult. Sometimes a person has simply seen too many cases on Law and Order thwarted by fiendish defense attorneys to actually listen to what I have to say. In such cases, I (sometimes) refrain from working one or more of the following phrases into the conversation:

Pedophiles? They’re only scary if you’re seven.

Who said you can’t steal a car in self-defense?

The assault rifle was just for personal use and not for sale.

But quips like these do everyone a disservice. It’s not an answer to The Question. This person may well be a juror for some other defendant in the future. Since California puts all of its truly serious “criminal justice” issues on the ballot for a popular vote, this person might very likely have a direct influence on my own legal practice. If I have information worth sharing, I need to share it sincerely. Multiple installments might be necessary.

And this is why this blog exists. I see sides of life that most will never see unless they are knee-deep in it themselves. The criminal justice system is a subject on which most people have opinions despite not having the professional training or experience to participate in the field. This is only natural as crime stories capture the imagination. These stories involve questions of right and wrong, sanity and insanity, free will and the lack thereof. Poverty, addiction, violence, police authority, and state power come together in ways that often write their own lurid headlines.

Simply put – I want everyone who visits my blog to leave with a more informed opinion about the justice system. It’s good for you. It’s good for me. It’s good for my clients. It’s good for our democracy. I am fully aware that these are my own subjective experiences and that they may or may not be proof of any larger “truth” beyond themselves, but I will always make sure that the stories you read here have truth in them. Truth is something we all chase, even if we never quite catch it. The chase alone is worthwhile.

My rules of engagement for this project are as follows:

  1. I am choosing to make this an anonymous blog. This is for the sake of my clients, not my own. I will tell my readers that I am a thirty-something public defender working in a major metropolitan area in California. Beyond that, I will not share any information that allows the reader to identify a client by name, or even by description.
  2. I will never comment on a “pending case.” By the time you hear about it, any issues of law or fact have been resolved. My blog is a place for reflection, not news.
  3. To further ensure everyone’s privacy, the people about whom I will write are likely to be composites of many different people.
  4. Under no circumstances will client confidences be shared. Ever. Nothing I write will allow a client, another lawyer, a judge or any other “officer of the court” to be identified in any way.
  5. I will never mock a client. I do, however, reserve the right to respond to my work with gallows humor, dry humor, sarcastic quips, exasperation, desperation, and indignation. I will endeavor to keep feelings separate from judgements.

Disclaimers are fun, but now it’s time to get to work.

Respectfully submitted,
Norm DeGuerre