The Revolution Needs Lawyers

Six years ago, when a judge ordered me to conduct a trial for which I was not prepared, I was shocked.  The judge's order came at a time I now recognize as a transition--a more dignified court (in general) that treated lawyers and trials with respect was giving way to a bench fixated on the processing of cases over legal scholarship or justice.  Up to that point, I had always known if I said the magic words, "I am not prepared and cannot provide effective assistance of counsel," I would be given more time to get ready.  It's not that I used the magic words frequently--I don't think I had ever used them on the day of trial.  Before that day, I knew that a judge would respect the fact that I had conducted over 100 jury trials, and that when I said I wasn't ready, I wasn't ready.  And if I wasn't ready, it would be unconscionable to order me to trial.

A few months before the judge ordered me to trial unprepared, a friend had persuaded me to join the Washington Association of Criminal Defense Lawyers (WACDL), which has traditionally been an organization for private attorneys, with public defenders welcome. Like many PDs, I’m not much of a joiner, and I’m cheap.  But my friend made a convincing case: that the WACDL list-serve alone was worth the price of admission, that WACDL would provide strike-force lawyers to assist members in sticky situations, that there was a prosecutorial misconduct committee, etc. I grudgingly paid my dues, but without high hopes of a return on my investment.

As soon as I joined, my county email was flooded with WACDL emails from all over the state—smart lawyers talking about current issues, posting briefs, and answering questions. I was impressed if overwhelmed by the email barrage, but also found a welcoming defender community, even wider than the one in my large public-defender office.

My joining WACDL coincided with the Great Unpleasantness I, a time in my office when the felony lawyers were outnumbered by the prosecutors 2 to 1, we had too many cases, and the trial treadmill was killing us.  As I mentioned earlier, a few months after I joined WACDL, I found myself in a situation where a judge ordered me to proceed to trial even though I had made a clear record that I was not prepared. The case was a vehicular homicide, and my client a 18-year-old who had never been in trouble before, and who (not that it matters) was innocent.  The case was admittedly quite old, but the accident reconstruction was complex, I had filed a motion to dismiss, and, oh yeah, I was in trial all the time.  When I interviewed the medical examiner 10 days before trial, thinking the interview was pro forma, I found out that, in addition to the other 10 reasons my client was innocent, the hospital's negligence had killed the 90-year-old deceased, rather than the accident.  I tried to build a medical malpractice case in three days, but it didn't happen.

When the judge denied my motion to continue, I was dumbfounded--the judge had just been appointed to the bench and had never practiced criminal law, but I didn't know what to do when he said, "I understand why you are not prepared, Ms. Defender, and I find it is not your fault, but the citizens of Washington have the right to have this matter resolved, and you have to start the trial on Monday." (I can't figure out how to make footnotes in blogger, but a footnote should go here because this judge has, over the years, unfailingly proved to treat lawyers and clients with dignity and respect.  He is the one of the few judges who doesn't treat us like wayward, ignorant children.)

After trying to reason with the prosecutor in the hallway (Me: "You don't want this case back on appeal--go talk to the judge with me."  Him: "The court of appeals will just find that this is another of your tactics!") I walked back to my office, stunned.  I posted a panicked email to the WACDL list, and received support and advice from across the state.  Look, I found the email:

After considering the advice--most of which was to proceed with trial while making a careful record--I decided that I was going to refuse to conduct the trial.  This post isn't about that decision process (because many of the factors were case-specific), but my philosophy can be summed up by the "You Can't Make Me" icon:  You can't give me too many cases, too many clients, too many prosecutors, and then tell me I have to conduct a farce of a trial when you know I am not ready.  A system that will force me to betray my client by failing to represent him adequately at trial, is a system I won't play along with.  You can't make me fail my client.

More desperate emails ensued, because refusing to do what the judge ordered could be contempt of court, and there was some concern that I would be put in jail.  Whatever, I pretended not to care, I could use the rest.  As I surveyed this dire situation, I finally realized, I need my own lawyer!

A WACDL member (David Blair-Loy, now of the ACLU in San Diego) agreed to act as my lawyer when I refused to conduct the trial. We spent the weekend preparing documents:  we had my list of open cases and several prosecutors'; my recent trial schedule; affidavits from lawyers who had seen me working every weekend; an affidavit from a lawyer who reviewed the vehicular homicide file and stated in his opinion the case was not ready for trial.  I prepared an affidavit stating my position in detail.  Additionally, my lawyer  prepared a brief opposing any potential contempt finding.

What happened? The judge backed down on the day of trial and gave me 6 weeks to get ready.  The newspaper wrote an editorial based on the documents I filed.  Our office got more lawyers.  I won the trial.  Another WACDL member nominated me for an award. I ended up serving on the WACDL Board of Governors, and observed some outstanding features of that organization that will help our revolution.  One of WACDL's outstanding services was to provide lawyers for members in potential legal trouble for asserting the rights of clients.

Before this incident, I had never had a lawyer, but I found my lawyer's presence was a tremendous comfort--in addition to the legal help--my sanity greatly benefited from knowing that I had a smart person by my side whose job was to protect me and to kick me when I needed to shut up.  I remember thinking, Wow, I am a client now!

I'm sorry for the long back-story here, but I wanted to share my basis for asserting that a lawyer can help you in a situation where you are obviously in the right and can back your position with facts. I don't think it's too much of a stretch to say that Public Defenders, either individually or jointly, refusing to accept excessive caseloads are in an analogous situation.

We have to refuse excessive caseloads, and to do this, we have to be bold, but smart. First, we already have powerful legal authority to support refusing excessive caseloads--ABA Formal Opinion 06-441 not only permits us to refuse to accept too many cases, it requires us to refuse them when the excessive nature prevents effective assistance of counsel.  (Believe me, in my trial-refusal situation, I would have loved to have authority that said I was ethically required to refuse to conduct the trial; I did not.)

Next, we need to make a clear, documented record that the caseload is excessive.  I'm going to do a sample analysis in the next post in this series, but this record will involve not only the raw number of cases (unless it's some completely crazy number), but the types of cases, support staff, number of investigators, travel time to jail and court, comparative number of prosecutors, plea-bargaining practices, and other factors.

When refusing additional cases, we should also get an expert opinion from an ethics professor and/or a statement from an organization like NACDL to support the refusal to accept cases.  I hope to recruit a number of criminal law and ethics professors who are willing to assist us (Hello, professor--if you are reading this and willing to help, shoot me an email frayedknotpd@gmail.com--it would be most appreciated).

Then, when we say, "You can't make me!"--whether we are making this point to a compromised boss, or a court, or a department of assigned counsel, we need to have lawyers with us to help enforce not only our client's right to have effective assistance of counsel, but also our right to render it, and to show that we mean business.

Yep, we can!