Why You Shouldn’t Vote for Former Criminal Defense Attorneys

As I sit here waiting for the results to come in on the recall of Chesa Boudin, I’ve been thinking about how he got to where he is. I think, at it’s root, the public has an inaccurate impression of criminal defense attorneys and what they do. This is particularly true when it comes to public defenders. They are viewed as heroic figures, and while there certainly are some heroic public defenders, for the most part, they are no different than the rest of the criminal defense bar. And this is not a heroic group, not by any stretch of the imagination. As the Supreme Court put it in United States v. Wade (1967) 388 U.S. 218:

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course.

Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe, but, more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which, in many instances, has little, if any, relation to the search for truth.

Professor Susan Estrich picked up on this idea and ran with it.

Look around the courtroom in a criminal trial and almost everyone is bound by one oath or another to tell the truth: the witnesses, of course; the jury and the judge, bound to find the truth; the prosecutor, whose lying can lead to reversal in the appeals court and at the polls; even members of the press, who can be sued for libel. The one person not pledged to tell the truth, seek the truth, let alone be bound by it, is the defense attorney. For me, the only question that matters in the O.J. Simpson case is whether he did it. Everything turns on that. For Robert L. Shapiro and Johnnie L. Cochran Jr., Simpson’s lawyers, nothing turns on it. Their job is to get Simpson off, innocent or guilty. If he’s innocent, that means advocating the truth. If he’s guilty, it means attacking it.

Criminal defense lawyers are not supposed to put witnesses on the stand who they know will commit perjury; of course, many criminal defense lawyers claim they’re incapable of ever really knowing anything. They can’t hide the murder weapon in their desk drawers, though they’re not obligated to pick it up. Other than that, they’re pretty free to obstruct the search for truth in any way they can, within the rules of evidence. Witnesses are fair game–even if they’re telling the truth. So is every piece of evidence, and every scientific test, even if it was accurately performed. You can impeach the person who found the evidence, question whether it was securely maintained, debate the accuracy of the test, undermine the reliability of the lab–even if you know, all the time, that the witness is telling the truth about where he found the evidence, it is your client’s hat and the test turned up the right answer. You have an absolute right to libel anyone in the courtroom; Det. Mark Fuhrman’s suit against the Simpson legal team is premised on what they said outside of court, in the public “trial.”

The explanation academics offer for the “different mission” of criminal lawyers that allows them such latitude with the truth is the adversary system of justice. The way we find truth, and protect the innocent, in an adversary system of justice is by putting the government to its proof, by arguing each point, each fact. Certainly, no one questions the right of an attorney to attack the credibility of witnesses who are lying, or attack the validity of tests he believes are inaccurate. No one doubts his right to argue to the jury that lies are lies, or that facts are true. No one, in short, is seeking to limit the advocacy of an attorney attacking a prosecution case that is untrue and defending an innocent man.

The harder question is why he is allowed to do these things when their purpose is to obfuscate the truth, to create doubt–and he knows that, or would if he allowed himself to “know” anything. Does every man deserve a defense, even if the only ones available are false defenses? How does it make truth-finding better when a lawyer undermines a truthful witness? If the rape victim is telling the truth, do you get to destroy her anyway? How does it help the jury do its job if you tell them that in is out or up is down or lies are truth.

Nor is it an answer that defense lawyers can’t “know” anything, that they’re not truth finders, and shouldn’t be. That’s the answer you most often hear from practicing lawyers about why any system limiting their advocacy makes no sense. But the ethics codes all reject that: It’s well-established that a defense lawyer can’t put a witness on the stand if he knows that witness will commit perjury–a line that turns precisely on a lawyer’s ability to know the difference between truth and lies. “Don’t ask, don’t tell” may be the posture lawyers take about their client’s guilt; but the same lawyers who try to persuade you, for ethical purposes, that they know nothing will turn around and brag they never try a case unless they know everything, and they can tell when someone is lying. Proving and disproving facts, persuading jurors of truth or falsity, is what lawyers do. We have a whole system of rules for doing it. It doesn’t follow that lawyers are incapable of applying those rules for themselves.

These are not just questions for lawyers to resolve in codes of ethics. More is at stake than just the relationship between a lawyer and his client. This is also about how the criminal-justice system works. It is certainly bound to come up as Americans everywhere tune in for their next installment of Criminal Justice 101.

People who are willing to help a guilty defendant are not always the kinds of people that should be elected to a position of public trust. I know many fine defense attorneys that I trust. I know many excellent judges who are former defense attorneys. There are exceptions to every rule. But the rule for criminal defense attorneys should not be hero worship or hagiography. It should be caution, and even suspicion.

That’s a lesson that San Francisco learned the hard way.

Lying About Money

Public defenders often ask for equal funding for their office and the District Attorney’s Office. Specifically, they claim that their offices are underfunded because they receive less than the District Attorney’s Office. Here’s a tweet from a public defender asking for “parity” of funding between the public defender’s office and the district attorney’s office.

This claim has the veneer of fairness to it, especially to people unfamiliar with the system, who see the two agencies as flip sides of the same coin. But the claim does not stand up to even a short overview of the facts. But type of rhetoric persuades some people. Here’s an article with a headline describing public defenders as having “the odds stacked against them” against “better resourced district attorney’s offices.” The argument worked on the New Orleans City Council:

Is it true that the Public Defender’s Office should have equal funding to the District Attorney’s Office?

The District Attorney’s Office Has More Cases Than the Public Defender’s Office

In Los Angeles, the public defender’s office handles approximately 70% of the felony cases prosecuted in the County. The Alternate Public Defender (used when the Public Defender has a conflict of interest) handles about 15% of the felonies. The remainder is handled by private lawyers of two types. First, bar panel lawyers are paid for their time by the state and are used when both the Public Defender and the Alternate Public Defendant have conflicts of interest. The second type are truly private lawyers, paid directly by the defendant.

By contrast, the district attorney’s office handles 100% of the felonies prosecuted in the County. In a given day in court, a prosecutor will handle cases defended by public defenders, alternate public defenders, bar panel lawyers, and private attorneys. A deputy public defender’s day in court is different. All of her cases are prosecuted by a deputy district attorney.

More cases means more attorneys. To continue with our Los Angeles example, there are 600 deputy public defenders and roughly 850 deputy district attorneys in that county.* In other words, the PD’s office is 70% the size of the DA’s office. This tracks nicely with the fact that they prosecute 70% of the felony cases. In Alameda County, there are 100 public defenders and 150 district attorneys. Statewide, there are 4,113 prosecutors and 2,580 public defenders.

Do Public Defenders Have a Leg to Stand On?

Public defenders do important work: it’s hard to disagree with them when they say they need more money. To be clear, more money is needed for virtually every agency involved in criminal justice, including public defenders. But, needing more money generally is different than arguing that public defenders are under-resourced compared to district attorneys.

Criminal defense attorney Paul Pfingst was elected as district attorney between 1994 and 2002. He said there “is little value” in comparing the district attorney’s and public defender’s budgets, because their respective responsibilities are so different.

Let’s go through some of the public defender’s arguments about why their office should get more money, as compared to the District Attorney’s Office.

PD Claim: Prosecutors Choose Their Own Caseload

Public defenders claim that prosecutors choose their own caseloads. Contrast public defenders, who learn of a new case when they are given the filing packet, whether they want it or not. This argument seems to imply that prosecutors can simply file fewer cases if they are low on resources.

This rests on the shaky assumption that if a prosecutor doesn’t have the resources to prosecute a case, they will just ignore it. Statistics suggest that such a case will get filed anyway, and the prosecutor will attempt to make room for it by plea-bargaining away other cases. In other words, short-changing prosecutor’s offices doesn’t result in fewer cases, it results in more leniency. Also, this argument is silent on why the prosecutors should get paid less per case than public defenders just because they make filing decisions.

PD Claim: A Prosecutor’s Job is Easier

Public defenders also claim that prosecutors have an easier job.

The DA’s office has control of cases, we don’t. They know which cases are going to die and put no work into them. We still have the person who is charged with that crime who wants status updates, maybe we’ve sent out investigators out. Maybe we have to file motions to dismiss and they never respond because they know full well they have no case and they would rather a judge say it’s dismissed because then the DA can blame the court instead of saying “we dismissed it.”

(Ole TD @timmydhue on Twitter.)

Deputy public defenders often forget that it takes work to decide which cases should be filed and which should be declined. Paul Pingst, defense attorney turned DA, said prosecutors have to investigate many more cases than those that end up in court. They have to handle victims, witnesses and evidence for every referral from police and sheriff’s departments; and they must prepare every complaint as if it will land before a jury. “If you don’t make a convincing case you’re going to get more trials,” he said. “If you cut corners on the investigation, then defense thinks they have a shot at winning at trial.” In other words, cases don’t simply spring into being. Filing a case is a lengthy and delicate task that public defenders don’t do.

Deputy district attorneys must often shore up weak areas in their cases by directing criminal investigations. On one end, this might mean listening to jail calls. On the other, this could mean overseeing a wiretap, executing search warrants, or interrogating witnesses. Prosecutors are often called out to especially important crime scenes, such as murders, to assist before a case is ever presented.

The claim that prosecutors have easier jobs is most jarring when it is time for trial. For a prosecutor, putting on a criminal trial is like putting on a play. You have to get evidence to court, you have to get witnesses to court, you have to get officers to court. Unlike a play, the prosecutor has no idea what any of these people are going to show up, much less what they are going to say, and must able to adapt to circumstances as they happen. By contrast, the public defender rarely, if ever, puts on a defense case. They usually rely only on cross-examination of the People’s witnesses. There are exceptions to this rule. But viewed in the aggregate, a defense case is vanishingly rare, and a defense case with more witnesses and evidence than a prosecution case is unheard of. In other words, trial preparation for a defense lawyer is an order of magnitude lighter than for a prosecutor.

PD Claim: Prosecutors Don’t Have Clients

“The difference is that prosecutors don’t have clients. Full stop. They do not represent people; they represent the State. There is no just comparison between an unaccountable imprisoner of the dubiously convicted and a defender of humans when the defenders always get paid less.” (Alexander Ignatiev @alexIgnatiev on Twitter.)

Speaking as an unaccountable imprisoner of the dubiously convicted, I find a lot wrong with this. First, the prosecutor does have a client: it’s the people in the community. Second, this community includes crime victims, who are often extremely involved, especially in serious cases like murders, rapes, or assaults. The prosecutor is also responsible to the officers who investigated the case, and who want to see it handled effectively. And finally, the prosecutor is susceptible to pressure from the media in ways that the public defender is not.

Finally, for anyone who doesn’t know, deputy public defenders and deputy district attorneys are on the exact same pay scale.

PD Claim: Prosecutors Have Better Staff

Others complain that the DA’s office has massive investigative units and support staff that public defenders’ offices lack. (Rob Harris @RealRobH1 on Twitter.) Although the public defenders have investigators and support staff of their own, they believe they are inadequate. Without any data in support of this argument, it might just be generalized complaining that’s not grounded in fact. It would be hard for a public defender to affirmatively show that the secretaries and paralegals don’t work as effectively as their DA counterparts.

But what about the police? Defenders seem to believe that the police only work for the prosecution, and not the community in general, which includes the defendant. The reason the police don’t appear to work for the defense is that prosecutors don’t bring cases against the advice of the police. Those cases are simply not filed. The work the police do to exonerate the innocent is done almost entirely out of the courtroom, and out of sight of the public defenders who make this kinds of arguments.

The Verdict

Public Defender’s Offices and District Attorney’s Offices do different things. Since the DA’s handle more cases, they get more resources. This is simple enough that those of us in the field understand it implicitly. But people outside the field can be misled. There are public defenders on Twitter trying to mislead people in order to get a larger budget. That’s wrong. PDs, and everyone in the criminal justice system, can make the case for more money with the truth, and nothing but the truth, so help us God.

Notes

An overview of the problem by The San Diego Union-Tribune.

The California State Senate Committee on Public Safety studied the State Public Defender to determine appropriate workloads.

The cleverly titled article The State Never Rests looks at whether excessive prosecutor caseloads harms criminal defendants.

* The LADA website says approximately 1,000 attorneys, however, over a hundred have left in the wake of the election of District Attorney George Gason.

Gascon Issues Letter of Support from Criminal Defense Attorneys

LA DA George Gascon published a letter of support today from the LA County Public Defenders Union and other criminal advocates. The letter was not signed by the prosecutor’s union, nor was it signed by any victim’s group or law enforcement group. You can see the full list below.

Gascon’s alliance with these groups is extraordinary, given that they represent criminal defendants, and the DA is sworn to represent the community against criminal defendants. In our adversarial system, the defense bar, including public defenders, typically try to frustrate the district attorney at every turn. Getting their client off, by technicality or advocacy, is their goal. This opposition is based on their role as aggressive advocates from their clients, who have been arrested and charged with crimes. The idea is that aggressive prosecutors advocate the community’s position, while aggressive defenders argue the criminal’s position. Once both sides have had a fair hearing, the judge or jury determines the truth.

In the past, this advocacy has extended out of the courtroom and into the public sphere. For example, the California District Attorney’s Association advocates for “sentencing reform, the death penalty, victims’ rights, body worn cameras, and public safety funding.” Here are some examples from other California prosecutors:

By contrast, advocates for criminals speak out against these measures.

Color of Change signed Gascon’s letter. The CDAA, the OCDA, the SDCDA, and the Amador County DA are not signatories to the letter. Indeed, Gascon’s letter seems to underline the radical difference between his office and others. Specifically, he seems to have lost the support of his own office and gained the support of his professional opponents.

In a tweet, Gascon says “opponents to reform are desperately turning to fear-mongering & scare tactics.” This echoes language in the letter itself, which describes “the open resistance and brazen hostility displayed by some judges, commissioners, and even factions of the DA’s staff who oppose Mr. Gascon’s new directives.”

Here’s the full text.

Notes

Here’s Orange County District Attorney Todd Spitzer on the crisis in Los Angeles.

Here’s LA County Sheriff Alex Villanueva.

Public Defenders Blacklist LA Prosecutors

George Gascon recently replaced Jackie Lacey and brought dramatic policy changes with him. One of the most controversial is that Gascon ordered his prosecutors not to file any sentence enhancements for any reason.

The most famous sentence enhancement is the Three Strikes Law. Gascon has been clear from the beginning of his term that this law will not be used. His orders are to dismiss the enhancement from any pending case in which it applies.

Many prosecutors are reluctant to follow this order because they believe it is illegal. Whether they are justified is an important question. But the more salacious issue is how the defense bar has inserted itself into this dispute.

The public defender, alternate public defender and other criminal defense lawyers are keeping lists of prosecutors who refuse to dismiss strikes. The rumor goes on. The defense bar will provide these lists to Gascon and his administration so that these prosecutors, and their supervisors, can be fired. The prosecutors will be fired for insubordination. The supervisors will be fired for failing to control their employees. The rumored purpose of these firings is to create job openings that can be filled with prosecutors who believe in Gascon’s changes.

Shame on the defense bar for acting this way. They should not be creating blacklists. They should not inject themselves into disputes in someone else’s office over internal policies. One lawyer should not try to get another lawyer fired over a legal disagreement.

Criminal court has been different than civil court, an environment that is notoriously uncivil. Every little transaction between civil litigators is fraught with aggression, lack of mutual trust, an unprofessionalism. As a result, civil litigators waste their clients time and money with pointless bickering and posturing. By contrast, criminal lawyers, especially public defenders and prosecutors, often work together day after day in the courtroom. They know each other. Importantly, they have a chance to build trust with each other. That can lead to real communication, not the pointless bickering we find in the civil system. It helps the system work in a just way.

What the public defenders are doing now will break the trust and civility that used to exist in Los Angeles. An entire office is engaged in a coordinated campaign to get portions of the other office fired.

Irony and the Death of Jeff Adachi

Jeff Adachi, the elected public defender of San Francisco, advocated ending the war on drugs. Now he’s dead from a drug overdose.

Adachi should be lauded for his career in public service. His death also raises important questions about drug crime. Adachi was in possession of cocaine and under its influence on the day of his death. Someone sold or furnished the drug to him. These are all against the law.  Unfortunately, people have decided that drug laws are not worth enforcing in the same way that they used to.  Police used to spend a lot of time and effort trying to detect and prevent these types of crimes. Adachi describes this time as “the bad old days.”

Things are different now. Drugs crimes have been reduced to misdemeanors, or in some cases infractions. As a result, police no longer prioritize these crimes, and allocate their resources elsewhere. Adachi himself points out:

[San Francisco]’s felony drug arrests are plummeting at unprecedented speed — 92 percent since the peak in 1988-89, and despite our population growing by 150,000. 

Jeff Adachi was in favor of these changes. He said, “The war on drugs ruined countless lives.” He described it as biased, devastating and misery-inducing. He continued, “We applaud anything resembling a ceasefire in this calamitous war.”

The irony is that Adachi helped to end the exact kind of police work that could have saved his life. He described police work aimed at drug users as “the war on crumbs.” He said that in February, when he was probably a drug user himself. If law enforcement had managed to stop that cocaine from entering the United States, or California, or even just San Francisco, then Adachi would be alive today. Once the cocaine got into the city, if a policeman had managed to find it, Adachi would be alive today. To be even more specific, if a policemen had stopped Adachi, frisked him, and discovered his drugs on the night of his death, he would be alive today. It’s an uncomfortable reminder to opponents of stop and frisk that drug enforcement can save lives.

You might say that law enforcement failed to do its job. Law enforcement should have stopped the transportation of the cocaine, should have been out there stopping and frisking people, should have assigned officers to drug interdiction. But Adachi himself worked to prevent that. He described efforts that could have saved his life in the most derogatory way possible. And he went to court, and the court of public opinion, again and again to obstruct drug enforcement. In retrospect, he should not have done that.

His death, then, is a reminder of the consequences of drug crime. In Adachi’s case, the consequences were fatal. He died on a gurney in a corner of a hospital ER. And although he was only one man, his death is dramatic evidence that his ideas on drugs were wrong. His death was a private tragedy for his family. But he was a public figure. And the public can learn an important lesson from Jeff Adachi’s ironic (and unnecessary) death.

Miscellany

Local news outlet Mission Local blames Adachi’s death on failure to treat his heart problems. Incredibly, they call this “the painful lesson” to be learned from his death.

Adachi wanted his misdemeanor attorneys to conduct 10 trials a year.

Information about Adachi’s death came to light when a reporter obtained the police report. Many were angered and embarrassed by this. The publication of the details of Adachi’s death has become a saga of its own.

Public Defenders Play the Race Card

I just finished an article on Slate with the headline “When Race Tips the Scales in Plea Bargaining.”  It discusses a study out of Loyola Law school that

analyzed 30,807 misdemeanor cases in Wisconsin over a seven-year period and found that white people facing misdemeanor charges were more than 74 percent more likely than black people to have all charges carrying potential prison time dropped, dismissed, or reduced. And white people with no criminal history were substantially more likely to have charges reduced than black people who had no criminal history.

The authors did not consider the obvious: that relative poverty might cause this outcome.  In California, people of color are less wealthy.  If you wealthy, you are more likely to afford a lawyer who can negotiate these benefits.  They wealthy can bail themselves out and fight the case, eventually securing a better deal.  If people of color tend to be less wealthy, they may be unable to afford to fight as hard, and thus may get a worse deal.  There may be other explanations. Do the two groups commit the same crimes at the same rates? Consider a hypothetical: one group commits only driving without a license misdemeanors, while the other commits only domestic violence misdemeanors. You would not expect similar jail commitment rates for these two groups. The authors don’t consider whether different patterns of offending account for the different outcomes. The authors don’t consider geographical differences. Is the law more lenient in the suburbs than urban centers? In the south than the north? The list of alternate explanations could go on and on.

But the authors, without an explanation, go right to “prosecutors are racist” as an explanation.  That’s lazy, inaccurate, and offensive to well-meaning public servants. Prosecutors are like any other profession, there are good and bad people. In my experience, prosecutors as a group far exceed other lawyers in their honesty and ethical conduct. And they show a lot of patience in the face of nonsense muckraking like this, both inside and outside of courtroom.

Also, the incoherent authors appear to partially blame bail, but don’t explain how the race-neutral bail system fits their “prosecutors are racist” theory.  Is it bail that’s causing this?  Or racist prosecutors?  The authors can’t decide.  They just know that prosecutors “destroy livelihoods, and tear families apart” “destroy communities of color” and “devastate low-income communities.”  Not criminals; prosecutors are to blame.  Who thinks like this?  More stupidity: the study found disparities in Wisconsin, therefore “New York must eliminate money bail.”  What?

I just hate-read this again before finishing up and noticed this was written by public defenders.  Assuming they believe in their work, their agenda is clear. Not all public defenders make dumb, incoherent arguments.  Not all public defenders are quick to accuse the other side of racism.  But it seems like these two are a great example of everything that’s wrong with the defense bar.

Perils of Plea Bargaining

“Justice and liberty are not the subjects of bargaining and barter.”  (Shelton v. United States (5th Cir. 1957) 246 F.2d 571, 579.)  This noble statement is simply not true: 90% of all convictions in the United States are obtained by plea bargain, rather than by trial.  The system of plea bargaining, therefore, has almost overwhelmed the system of trial by jury, and we must be constantly aware of how it may go wrong.  Specifically, we should guard against conflicts of interest on the part of the lawyers that my produce unjust outcomes for victims and defendants.

Lawyers’ self-interest can skew the outcomes of plea bargaining.  On the defense side, a public defender may be, and in some places always is, overworked.  A new case may come in for arraignment that would contribute significantly to the attorney’s workload.  In that situation, the defense attorney may recommend a quick plea bargain to dispose of the case.  This might not even be a bad thing.  When the public defender is dumping this case in order to focus on her more significant cases, the defendant in those significant cases may benefit.  In this way, the public defender is exercising something like prosecutorial discretion.  It is not controversial, after all, for a prosecutor to refuse to file a relatively unimportant case because her energies are already spent on other more important cases.  Defense lawyers do not have this formal power, but if they are willing to accept bad plea deals, they have this power in practice.  I have even seen this in action, especially in misdemeanor courts.  In this situation, the defendant loses his right to aggressive representation on his behalf.

Prosecutors, in turn, may be motivated to make unnecessarily lenient plea offers.  Even the best criminal code is written in general language, and there are often problems in application to individual cases.  As Albert W. Alschuler has said, “individual prosecutors may be influenced […] by a desire to smooth out the irrationalities of the criminal code.”  (Alschuler, The Prosecutor’s Role in Plea Bargaining (1968) 36 U. Chi. L.Rev. 50, 71-79.)  Prosecutors may be faced with weak cases that they still believe in.  For example, if a prosecutor believes she can prove a case beyond a reasonable doubt but feels that it is very unlikely, she may plea bargain to ensure a conviction, regardless of whether the punishment is too lenient.  Better something than nothing, after all.  Prosecutors may plea bargain to avoid harsh minimum sentences.  They may also plea bargain to protect victims who do not wish to testify.  None of these motivations would constitute a conflict of interest.

But there are other, less reputable reasons why prosecutors may plea bargain where conflict of interest rears its ugly head.  Prosecutors are often evaluated on their performance by looking at their trial statistics.  More guilty verdicts are better, obviously, than hung juries or acquittals.  Ambitious prosecutors, and we are all ambitious, pay attention to this record more than any other measure of performance.  When a difficult case comes along, this type of evaluation puts prosecutors in a tough position.  The prosecutor may feel that the defendant deserves a particular sentence.  Let’s say 20 years, for example.  But she knows that the case is difficult to prove, and that juries are unpredictable.  If the defendant is willing to take 10 years, a prosecutor may be tempted to agree to this to preserve her trial record.  After all, if she takes the case to trial because she doesn’t feel that 10 years is a punishment that fits the crime, she risks a loss on her record.  A loss that would be held against her when her performance is evaluated.  How much more important is justice (that the punishment fit the crime) than the prosecutor’s career?  It’s a question that shouldn’t have to be asked, but that I’m sure is asked all the time.

The problem of conflict of interest during plea bargaining is particularly acute with private defense attorneys.  It may even be in a private defense attorney’s self-interest to recommend rejection of a favorable plea agreement.  For example, if a private defense attorney bills by the hour, his economic self-interest would be to spend as many hours on the case as possible.  A favorable offer at the beginning of the case would nip that opportunity in the bud.  A private defense lawyer may run into the same problem if they are charging by the motion, if they are able to charge more for a writ, for a habeas corpus proceeding, or to handle an appeal.  Private lawyers may even want the practice of conducting a trial, to improve their trial skills, regardless of the potential consequences for their clients.  On the other hand, many private attorneys are paid a flat fee to take a criminal case, regardless of whether they dispose of it quickly or take it to trial.  It’s much easier to take the fee and take the plea than to prepare a complex trial.

Plea bargaining will continue until more lawyers are hired or less cases are filed.  Many people feel that the current situation cries out for reform.  When someone’s freedom is at state, it pays to do things right.

Exiled from the Gym

I used to love working out during my lunch hour.  I felt like a disciplined, focused, ass-kicking professional.  I would walk into the gym, in my court clothes, and everyone would recognize me.  After showering, I would put my tie on in the locker room, as proud of my neckwear as I was of my bench press.  And then back to work, feeling refreshed, feeling like I was “ahead” for the rest of the day.  The gym was right by the courthouse, smack dab in the middle of my jurisdiction.  Which is to say, it’s not in a nice area.  But lunchtime was the only time that I really felt like I was getting out there in the community.  The courthouse itself is a fortress (most are) and the interaction that you have in the courthouse is mostly with the defendants and their families.  They are never happy to see you.  Your win is their loss.  At the gym, I could just fool myself into thinking that I was seeing victims, and family members, people who wanted their streets to be a little cleaner, people who were happy when I did a good job.

I was not surprised when I found out that a notorious member of a local gang had been arrested in the gym parking lot.  He was selling crack.  When the officers approached, they recognized him, pulled him out of the car, and discovered marijuana inside.  They didn’t find crack, but when they put the defendant in their squad car, he tried to hide the crack in his own crack, if you catch my drift.

I had never done a felony drug case before.  I talked it over with my wife, and with others, and their reactions surprised me.  None of them seemed very upset about the crime.  Most of them predicted that the jury would think that this case was waste of their time.  I tried to settle the case on the basis of their doubts, but the defendant wanted his trial, and I gave it to him.

The defense lawyer continually played the race card during the trial.  The arresting officers were white and the defendant was black.  She accused them of framing him.  Why would they do it?  “Because they could,” she said.  Because who cares about someone like poor old defendant.  This seemed silly to me and I stuck to the facts.

I felt optimistic at the end, and when I heard the jury had a quick verdict, I was sure of success.  I even had another lawyer stand in for me to take the verdict.  The ritual in this situation was for him to text “Guilty!” and everyone to celebrate.  But no texts came, none at all, and I started to worry.  Finally, after about an hour, I was told that the jury had returned a verdict of not guilty.  I was shocked.  A coworker interviewed the jury afterwards.  The jury foreperson said, “I think the prosecutor underestimated us.”  They wanted DNA testing on the bag of drugs recovered from the defendant’s butt crack.  They wanted fingerprinting.  They wanted a crime lab working in shifts to analyze everything.

I can’t go back to my gym now.  The defendant had plenty of time in custody as a pre-trial detainee.  All he did was work out.  The defendant testified that he had been arrested after working out, and based on his appearance during the trial, he never stopped.  Maybe that’s all he did while he was away.  The thought of being in a locker room with him is not something I’m especially comfortable with, now that I know about some other things that his gang has done.  In fact, every time I have a case with someone from that gang I think of him, running into him at the gym.  I know that nothing would happen, the statistics don’t lie, but it gives me pause.  It’s a small dilemma for me (and I’m sure I’ll go back eventually) but it’s an interesting reminder of what it must be like to live in that community full-time.  Of what it must be like to see people like my gang defendant on a daily basis.  Maybe that’s the lesson I should take to the gym when I return.

 

“That’s Not A Courtesy I Extend”

I had a hearing set in a robbery.  The victim arrived in the courtroom after I left to handle another matter in another courtroom.  When I was gone, the public defender approached the victim and asked to interview her, which she did.  The investigating officer arrived and noticed the two of them in an interview room.  He entered and asked if the public defender had told me that she wanted to interview the victim.  She said she hadn’t.  The officer told the victim to break off the interview.  This caused the officer and the public defender to get into a shouting match.  Meanwhile, I was cluelessly handling other matters downstairs.

The public defender ran into me downstairs and was the first to tell me what had happened.  She pointed out that it was not illegal for her to interview my victims (even though it is illegal for me to talk to her defendants).  Told her I agreed with her on the law.  Then I said, “I would just ask you, as a professional courtesy, to let me know when you want to speak to a victim.”  She said, “that’s not a courtesy I extend.”  We left it at that.

I was annoyed, of course.  I blew off some steam with the investigating officer upstairs.  But the interaction resurfaced on the commute home, where all forgotten annoyances resurface.  What is the proper response to this?

I could let it go.  She’s right on the law.  Defense counsel can interview victims.  It’s important to get along with people you work with.  Even defense counsel.  Prosecutors are supposed to hold themselves to a higher ethical standard than defense counsel.  In practice, this seems to mean letting them get away with all sorts of underhanded things.  The defense bar seems to be so used to this that they get angry when I even suggest that both the prosecution and the defense should be treated equally.  I could let her get away with this.

I could retaliate by withholding my own “courtesies.”  One thing in particular that popped into my mind was changing my existing practice when it comes to witnesses.  Now, I allow defense counsel to interview my witnesses, and even encourage it, as long as I am present.  I could no longer do that.  Instead, I could always advise them not to.  I could explain to the witness that this defense lawyer’s job is to make you look untrustworthy and stop a fact-finder from believing you.  I could explain that this lawyer would have consider letting their victimizer out on the street to be a successful result.

I could take the defense interview option off the table by having victims wait to testify in my office.  This may inconvenience me in 100 cases and solve the “no courtesy” problem in one case.  In other words, it might not be worth it.  But it would also solve a related, and even more annoying problem: gamesmanship over witness attendance.  How often has a defense lawyer based their decision to take a plea on whether a witness is present?  This seems to be a bad way to practice law: justice for only those victims that can come to court.  But I digress.

I’m still annoyed, even as I sit here today, long after the fact.  Maybe not in the right frame of mind to make a decision.   But at least I got to spend the commute thinking about delicious retaliation.