Saturday, July 02, 2005

Public Defender (and Private lawyer) dilemma

People often ask me the toughest part of being a public defender, or a defense lawyer in general. Surprisingly, the toughest part of doing this is the realization that you don't represent one person, but you represent thousands of people, not just now, but in the future.

When I speak to a DA or a judge about a case, I cannot do so with an eye only to that one case. If I were to present myself with the attitude that everyone is innocent, that every cop is lying, that every prosecution is tainted, etc, then I will quickly wear out my believability.

But, that is a tough thing to give up when you consider that every client is entitled to all of my best efforts, including a presentation on their case that presents them in the best possible light. How do you reconcile these two often very adverse duties? If I go into court and suggest that the clearly guilty person is innocent, a victim, or whatever, what will this do to all of my future cases when it becomes clear that he is not? If no DA can believe me, and no judge can believe me, then my ability to do my work well is severely curtailed. You can be a good lawyer and be trusted and respected by your opponents (I'll generally lump the DA and Judges into my "opponent's" corner).

Does this mean I have to kiss their collective asses so as to curry favor with them? I don't think so. I believe that they can see me doing my work hard, doing all of the things that need be done, without grandstanding on any particular case. They can realize that I have things issues that need presenting, and they will see me do it without a lot of yelling or shouting or personal emotional involvement. I believe that getting personally and emotionally involved is a bad way to represent your client.

But, in the end, there is that serious question, are you representing this client? Or your future ones? Or all of them? How do you decide which client deserves the ranting, yelling screaming and declarations of innocence on his behalf and misconduct on everyone else's? Is it fair that the lawyer decides this? Is it ethical?

One last thing, and I have brought this up before. Did Mark Geragos ultimately hurt himself for the future with his representation of Scott Peterson, as well as his appearances on CNN? I don't know, and I'm not pointing to anything in specific that I disapproved of, but this is an example. When you go so far in declaring the innocence of your client that just about everyone believed to be guilty, have you hurt your credibility for the future? However, was there a different way that he could've represented Peterson to the hilt without doing that?

Food for thought. I'm curious especially about the thoughts of other defense lawyer's, as well as prosecutors or any judges who may be lurking here. Also, any legal ethicists have any thoughts on the subject. As always, anyone else is free to comment as well. Please post a comment and let me know what you think.


Jen said...

Earlier this year, an attorney in the PD's office I worked for didn't object when the judge during a bench trial got up and took a phone call DURING TESTIMONY, allowing the witness to continue testifying in his absence.

The attorney said that if she had objected, it would have ruined any sort of favor she had with this particular judge. And since it was the courtroom to which she was assigned, she couldn't afford the repercussions.

Anonymous said...

Maybe you or your courthouse is different from those I have experienced but there does not seem to be a over abundance of pds getting emotional in the courtrooms. So I believe that the times where a pd is feeling an emotional response to something that has gone on he or she should let it show. Obviously there is a line that should not be crossed (eg throwing a chair or something).

But from my perspective the litmus test is still what would you expect from the defender if it was your family member being accused. Seems like being overly concerned about one's credibility, especially with the prosecution, is a big step into the abyss of become what pds are accused of, namely being an agent of the state.

Anonymous said...

It's a fine line, one that takes some time to learn how to straddle. When I was a PD I worked in rural county and dealt with the same prosecutors and judges every day. I often found it difficult to know when to cry injustice. As you know, most of our clients are dumb guilty schmucks. That said, the system IS unfair, and we do have duty to fight it.

The expectations of our clients, however do create problems. They EXPECT the kind of lawyers they see on Law & Order and they have this idea that a "real" lawyer would work some magic and make everything go away.

I guess when it comes down to it I just do what I think is right. Live and learn.

Tom McKenna said...

Great comments. As a prosecutor, I know which defense attorneys to listen to when they press an issue-- because they won't do it unless there is something really there. Some want to fight everything every time, and that's certainly their right. But when they try to approach me with a view to a reduction or dismissal, I don't know if they're being straight with me or just giving me their closing argument.

The good defense attorneys (the ones I would hire if I were in trouble) don't try to BS or threaten me every time (e.g., the "true believer" types). When they come to me and show me I have a problem with my case, I listen and they usually come away with a good result for their client. If we try a case, I know it's because the defense has a good issue.

Some defense attorneys hurt their clients by staking out a total war position out of the gate on every single case, because they leave no room for negotiation. And most of the time, though certainly not always, I hold more cards than they do.

I think your attitude is the best one to have for your clients. Sad to say, the true believer types usually get the worst results for their clients, who probably think the lawyer was great because he "fought the man."

anonymouspd said...

Tom hit it out of the ball park.

A lawyer's reputation is his bread and butter. Everywhere I have practiced the general rule remains he same. A young lawyer, an inexperienced lawyer, or has a lawyer who has a reputation for making the prosecutor do unnecessary work will get a lousy offer and receive cool to hostile treatment at all turns from the DA's office. A lawyer with a better reputation will get an offer with perhaps from a third to half less then the offer of a the inexperienced attorney & receive everything the rules entitle them to without much of a fight. A lawyer with a sterling reputation will get perhaps even a third to half of the offer of the good lawyer and often get more than what the rules require the DA to turn over. PDs, as a general rule, get somewhere at or better than, a lawyer with a good reputation.

The reason is simple as a PD, I can go scorched earth anytime I want filing every docket clogging motion in my word processor and busting balls about every technical right I might have under the rules. I chose, however, where and when I do it as the prosecutors whom I go against can do it too. With that said, the real world impact of going scorched earth more than a few times a year is that you clog the docket and you will unnecessarily end up trying more cases and seeing more clients hurt then needed (save for mid-trial where all gloves are off & everything short of ethical violations/reversible errors are considered fair in most locales where I have practiced).

By being reasonable with the prosecutor & with both of us knowing either of us can go scorched earth at any time -- and the resulting lost of time with family & weekends away from the office -- you quickly come to an agreement at the start of an assignment together not to go nuclear too often.

Likewise, if I am busting the prosecutor's balls he or she knows I have read the file and knows I think I may have a winner. If the DAs are busting my balls I know either they think they have a better than average case or are receiving political pressure in the case. If either of us were to bust balls in every case the courthouse would stop functioning, my clients would risk the 50-50 dice shoot that is trial unnecessarily (with the resulting longer prison sentences) and all of us would be unhappy.

Put another way, under the current system I get "buying in bulk" discount for my client PLUS any additional bonus I get for reputation. Put yet another, another way, I get better pleas & better trials than most of the private bar because I pick my fights.


Anonymous said...

Well, I guess that I fall into the "true believer" categonry, then. I have found that when a DA wants me to be "cooperative," he/she really wants me to roll over on cue. I have found that my "scorched earth" tactics work far better in the long run than what others do.

I work in a conservative court, and no one looks to do me favors. That being said, I know the "nice attorneys" who kiss the DA's ass and don't file so many motions to be "nice." They get screwed in my court, and their clients are disserved. If I have a motion, I bring it. If the case is worth X, then I want X, or less. Period.

I have the docket under my command, not the other way around. If the DA wants to be a prick, he can go to trial. But he won't go to trial on one case, oh no. He'll go to trial on 10 cases. Or 20. Or 50. Hell, I love setting 10 cases ready without time waivers, especially when the defendants are out of custody.

Three Strikes is garbage. The criminal justice system is broken. I refuse to feed the beast, and I won't stand idly by while my clients get screwed because I need to be "nice." Judges are generally prosecution oriented, and the appellate courts are no better. My clients' only hope is usually the jury. The more trials I do, and the more I do right, the better off the system is.

That being said, in felony cases, especially serious felony cases, a defendant shouldn't go to trial unless he/she is willing to accept some serious risk. I won't go to trial on a felony unless I'm ready, and I make it a point to being ready. And if a defendant is offered a decent deal, I amke damned sure he/she takes it, if I have any client control whatsoever. Too many cases are set ready that are the wrong cases. A 3rd striker shouldn't turn down a 2 year offer lightly, and probably ought to take it just so that he/she doesn't get life.

Likewise, a defendant shouldn't be browbeaten into pleading when the charge really is just an aggravated misdemeanor trumped up to a felony. To many lawyers are interested in moving their calendars. 1538.5 should be done. Speedy trial motions should be done.

The only one I represent is my defendant. I don't need DA friends. I don't go out of my way to antagonize them, but if they want to play hardball, I can play longer and harder than most. Most DA's will deal with me, and prefer not to try cases with me. I get decent deals, alright, but it ain't because I'm nice.

PD Dude said...

As always, I love your posts. I'm not sure I disagree with you, but it doesn't necessarily deal with the issue at hand. Is there a conflict between this client and your other clients, and your future ones, based on your dealings with the court. Whether or not you play nice or hardball, you probably present yourself in a manner that shows respectibility, regardless of the client.

Perhaps it is in any individual client's best interest to have some lawyer come in raving and screaming, claiming innocence and a violation of rights. If that client had a firebrand lawyer from another jurisdiction that was never going to practice in that jurisdiction again, then the client would probably get better results in that instance.

However, if that lawyer had a lot of clients and he pulled the same tricks for every one of them, then this would eventually wear thin and, I believe, that lawyer's effectiveness would begin to wane.

I'm sure that, for all of the tougher tactics you employ (which are probably necessary in your jurisdiction), you show discretion in the things you say and do with each client. You realize that if you walk into court on each case claiming the client is wrongfully charged and that the police are committing perjury, you'd probably begin to see your effectiveness decline. Maybe not, but that's the issue I'm wondering about.

There's a firebrand lawyer here where I work who takes every case personally, he has been held in contempt before (for legitemate reasons, mind you), who yells, screams, etc.... He's actually pretty good in front of a jury, but ultimately, I have to think that all of his clients are harmed by his antics. Perhaps I'm wrong, but that's the question I was wondering about.

Anonymous said...

PD Dude:

Not quite what I meant to mean. I don't come in and proclaim every client is innocent, or take everything personally. Many of the people I represent are guilty of something - that's something which I fully understand.

I am not someone who burns down the courthouse on every occasion. But I don't like the thought that I have to "be nice" to the DA and/or the judge to function. I am always cordial, and I don't curse at judges/DA's or anything like that. But I generally don't stipulate to things. I don't, for example, stipulate to anything at a prelim. If they say my client bought/sold cocaine, then the DA should prove it's cocaine. Bring in the expert and show me. I have ruffled many feathers by requiring the DA to prove this simple issue, and have been labeled an "obstructionist" for doing so.

Another issue: I refuse to let the court do readback to the jury unless my client and I are present. Most attorneys just stipulate that the court reporter can go back in jury room and read away. Well, a colleague had a client convicted of manslaughter because of just this practice. Since that time, I don't stip to not being being present.

The last trial I did the judge expected me to waive my presence for readback. I refused. He was so angry and annoyed that he told me I had to stay in court during the entire deliberations, "just in case the jury needed readback." My office is right next door to the courthouse, and I only practice in that courthouse, so it was clearly unreasonable for the judge to do this. I also insisted that if I had to stay, so did the DA (fair is fair, after all). Thus, everyone was mad at me. By the way - the jury came back NG, and had one round of readback and one round of questioning. I am convinced that they were impressed with the seriousness of the case in that when they had questions for the judge and/or wanted readback, both attorneys and the defendant were in the courtroom, as was the judge, reporter, and everyone else. I think it made them understand that the case was important, even though it was a misdemeanor (child abuse misdemeanor, but my client was nonetheless in custody).

The judges and DA's are more than happy to bend the law against the defendant. The DA routinely overfiles. The judge routinely sets bail astronomically high. Both will say things like: "he'll plead when he's been in custody long enough," meaning: His guilt or innocence is irrelevant - torture him (with custody) long enough and he'll confess his guilt (plead guilty). In short, the whole system we have at many times resembles, at least in a more modern form, some kind of inquisition. Look, I know it's hyperbole, but how else do you define a system that is so afraid of the truth? Why have impossibly high sentences for many crimes, especially when someone is young?

In Riverside County, I have several colleagues who tell me that their system is completely screwed up. If your defendant refuses to take a deal before prelim, there are no other deals. From that point on, the only remedy is to "plead to the sheet" and hope for the best from the judge. If they tried that in my jurisdiction, I would laugh my ass off. We would just set everything for trial. Ready to try this felony, Mr. DDA? Well, you can try these other ten, as well. And these twenty here. Oh, and all of the misdemeanors are ready, too. Hope you get them to trial in the statutory period. . .

Nothing is wrong with civility between Judge/DA and defense attorney. Just remember - what makes DA's happy isn't what makes my defendants happy. They generally want to go home, preferably without a conviction, or at least with as lesser of a conviction as they can get. In the adversarial system I am either doing my job, e.g. Talking with my client about the offense and the defenses we will use, investigating, researching the law, finding something to use to make the system cut my guy a break. Or I'm drinking coffe with the DA, bitching about how the "guilty people" are ruinging my tee-time, and schmoozing with the judge about his golf swing/her kids. I don't see myself doing the latter. I might as well do the former.

Most judges/DA's see scum. I see people, most of them just plain human, who have done varying degrees of bad (most not so bad) things. As long as that's the mindset, I prefer doingmy job, not kissing their ass. I get results, so I'll stick with what I've got.

Tom McKenna said...

Who said anything about ass-kissing and being "friends" with the prosecutor? All I meant to say was that ordinarily you do more good for your client by NOT going balls to wall in most cases. I recognize sometimes that's gotta happen for a variety of reasons (client wants to, or you think you have that truly innocent or at least not morally guilty client)--

But most of the times in most cases the attorneys are not going to have a sharp disagreement about what the facts are and what the law is. Therefore the real question is what will be the appropriate disposition of the case. Two professionals negotiating an outcome where the client gets something and the prosecutor avoids risks on his side is not somehow "giving in to the system" or selling your client out; it's simply a realization that for most defendants, a certain outcome is preferable to an uncertain outcome, and for most prosecutors, avoiding lengthy/costly/potentially losing trials is worth the price of giving less than you might have gotten from a judge or jury.

It's called the real world. Welcome to it.

public pretender said...
This comment has been removed by a blog administrator.
public pretender said...

I don't believe a word I'm hearing. I find it hard to believe that I just live in a bad county, but the public pretender is no more that the DA in public pretender clothes.
How can a defendant go to court for five months and still hasn't had his preliminary hearing in the ten day time frame when he hasn't waived it, because, they won't let him enter a plea. A Spanish girl is given a ticket at a store for shoplifting and she get's in court and the judge announces we have a booking issue here. The DA and the PD ignor his comment. The Judge tells the young lady thru her interpreter, she realizes that she has given up her rights, in order to accept the plea bargain and then tells her, that he is going to do her a favor and sentence her to one day in the county jail and give her credit for time served and he's not going to make her serve that day. She agress. She hadn't even been arrested and he didn't even tell her to go get booked. The next time, if it happens again she'll be charged with 484/666 because he gave her credit for a day she didn't serve. 666 is a punishment not a charge anyways. How about the DA charges a person with a fake ID, with forgery and sentences them to 9 months in jail and 5 years felony probation. The DA makes a motion to stike the prior on a complaint and the complaint was amended and they struck the clause and not the prior. The when the defendant goes for their preliminary hearing well beyond the 60 days and the judge asks if they waive their right to have their preliminary hearing in the 10/60 day time frame. The defendant says no, his response is, well you haven't been rearraigned since the complaint was ammended so I'll arraign you today and the time will start to toll today, when the complaint was never amended anyways. Or how about using the wording to one penal code but using the codification of a different code, the pd doesn't even object. Are you saying it doesn't really work this way in all counties?

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Anonymous said...

I have never been a criminal and nor did I have any problem of any kind with law enforcement. The more I think about your blog it sounds like if the person is really innocent and can not afford the cost, then his best bet is with DA & police. But tell me, that DAs & prosecutors are hell bent on getting a conviction, because that is what they are ultimately judged by. If PDs pick and choose their battles and if he knows that the DA does not like your client, then sounds to me you care more about your relationship with DA than the fact whether your client is guilty or not.

To me the legal system is to find out the truth and nothing but the truth. Sounds to me that you guys are just playing it by the ear rather than doing the right thing.

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