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!

Gallery of Acquittals

I am finishing up the next post in the How to Be a Public Defender Revolutionary series, but my eyes are crossing (very, very late), so I'm not going to post it tonight, because I have no idea what it says any more.  In the meantime, I've added a Gallery of Acquittals to the left sidebar.  Send in your Not-Guiltys, and I'll make something pretty for the gallery.

Be Mine Magic Man

The greeting card companies have failed to produce a line of cards suitable for public defenders, who have a unique combination of dark humor and sappy sentimentality (or maybe that's just me).  These valentine's cards are for all of you public defenders out there--not specifically PD-themed, but more something that your PD-Love would appreciate.

I wanted to make something with the "Live What You Love" slogan, in a sort of '70s way, but with a PD theme. The best symbol for PD work I could come up with was a silhouette of a lawyer talking to a jury.

Somehow, the image wasn't quite right. The truth is, I kind of hate trials. Or I hate them until they're over. Then, if I won, I loved every minute of it; but if I lost, I still hate it. So, this is better:

Ever had one of those weeks? You know, the kind where the jail won't let you see you client in the contact room due to non-existent "safety" concerns; the court sets its own motion to continue a trial date, denies its own motion to continue, cancels its vacation due to the denial of its own motion, and then implies that all of this is somehow your fault? This would be a nice card to get during one of those weeks:

 

This one is for the ladies:

This card is to thank the DUI lawyers for handling these complex yet tediously similar cases, because I never did totally understand that damned machine.

This card is for the gal who does my filing for me as a favor, or when she fears I might be killed by a stack of paper. I thought I had been fired last week when I walked past my office and it looked like all of my stuff had been removed. In reality, she had done my filing. :)

I Can't Get I To Do It

The lawyer across the hall from me, "Old School," let's call him, has been a public defender forever. How do I know this? Because he still has this ashtray in his office that he had in, like, 1900, when he first started as a PD in This Here County. The ashtray both frightens and entices me:

Like, what is up with that round, knobby thing? And if, as I suspect, it is used to open the ash chamber, what might one find therein?  Yikes!

Old School had a client lo these many years ago, who was charged with several bank robberies. The client was respectful although not that bright, but wanted his lawyer to see him as serious and educated.  This desire caused the client to employ some odd speech patterns, because even though he was serious, his education was, um ... unfinished.  For example, when Old School asked the guy to describe the physical scuffle in the case, the guy said, "I was on the ground, and the man came and put his hands on me, and so I powered him off of I."

Public Defender Bumper Stickers

Because every revolution needs its Bumper Stickers:

 

Done Yelling

A quote from a burned-out PD has been bugging me since I read it in an article I referred to in an earlier post--the article is "An Essay on the New Public Defender For the 21st Century" by Harvard Law professor Chargles Ogletree. (Westlaw, can't link)

"Public defenders from across the country," Professor Ogletree wrote, "offer painful testimony of the physical and emotional toll of doing their jobs. They tell of losing their motivation to be a crusader because they have become jaded, disillusioned, or cynical about the work of public defenders. One public defender described her feelings as follows:

'When you become a legal aid lawyer, you think that you are going to be the champion of poor people who are dying to meet you, who are thrilled with your representation, who are innocent victims of society, who are indigent. And then, slowly, these ideals get chipped away.... Slowly you begin to realize that maybe this prosecutor is not railroading every client, and that maybe, in some cases, your client is guilty.'"

I read that and thought, Really?  That sounds like an aberration of a PD, rather than representative.  I mean, it's not that I don't know that some of my clients are guilty, it's just that I don't care if they are or not.  Everyone out there feels this way, right?

Then, in one of the first comments I received on this blog (sorry I didn't respond to your comment, Jamison, but I've been thinking about it, and BTW, the second half of your comment made me completely pissed at this type of judge, because it was so horrible and also so typical, and is still rattling around in my head for an appropriate post), a former PD from Philadelphia wrote,

"I remember sitting in my office with my former office mate just a couple of months before he left for private practice. He was a good, committed, effective lawyer and also a die-hard, do-good liberal. He had just gotten off the phone with a client. I could hear just one side of the conversation but it was clear that the client was mad at him for something. He put down the phone and looked at me. 'I have gotten to the point where I absolutely hate our clients,' he said. 'It is time for me to leave.' He was gone three months later."

***

In my first years as a public defender, in a PD office on the coast, I represented a manipulative-type guy on a couple of forgeries.  For some reason, I remember that one of the lawyers in my office had dated him in high school.  I didn't hate him or anything, but I found him annoying--equal parts demanding and needy.  Fortunately, I was able to resolve his case with a quick plea bargain, but he had a number of prior felony "points," and we disputed the validity of a few of them.  He also had a federal case, and I had been in touch with his federal public defender, who wanted to know the outcome of his sentencing.

At the plea hearing, the judge unexpectedly placed the burden to disprove the validity of the prior convictions on me, then denied my motion to continue the sentencing hearing, but finally, after much whining, gave me until after the noon break to get the needed documents.  I spent the lunch hour shoving my Cheetos money in the microfilm machines.  When we were back in front of the judge, I had the right documents and made my objections, but the judge ignored my arguments and proof, giving the guy a sentence that was too high, but probably not worth appealing.  The guy was a total ass to me about it, calling me names--shitty-ass public pretender!, if memory serves, and it does--as the guards took him out of the courtroom.

Later that day, his federal defender called.  "How'd it go for Mr. Forger?"

Laughing, I said, "Oh, Mr. Forger had a pretty bad day today--the judge screwed him and gave him 22 months instead of 15."

"You don't seem to care about what happened," she said.

"I did care ..." I was taken aback by her calling me out.  "I spent my lunch money on him ... and I was laughing because sometimes we laugh just because things are so awful ... and the guy was an asshole, anyway."

"He still deserves effective assistance of counsel," she said primly.

"Well, I'm sure he will get that from you," I said, and slammed down the phone.  I was pissed.  I didn't deserve what she said--what a judgmental bitch.

***

A couple years after the forger incident, I had a client on a first assault charge, with a pretty good self-defense claim, except for the fact that my client was caught in the act of stealing a woman's purse out of a parked car, and the man he stabbed was one of the citizens who caught him stealing.  Who happened to be 92 years old.  And got stabbed in the heart.  No case is perfect, right?

The kid insisted he was defending himself when he stabbed the old man; he was so adamant about the self-defense that I didn't doubt that the kid was afraid when it happened.  I couldn't get him to understand, though, that the jurors might see the situation differently than he did.  No matter how many times I urged and explained, I couldn't get him to see his situation through the jurors' eyes.

As I prepared for the trial on that case, I realized my job was more about getting the jurors to see the situation through my client's eyes than vice versa.  This simple realization had a cascading effect in my mind, and caused many thoughts about my job and my clients to coalesce, and, more importantly, gave me an idea for my closing argument.

In my closing, I told the jurors how, when I was new public defender, I would fight with my clients all the time.  They would complain that I wasn't visiting enough, or that I wasn't working for them, and I would think, What the hell is the matter with you?  I'm working 12 hours a day, buying you trial clothes with my Cheeto money, and not selling you out.  Why can't you treat me with the respect I deserve!

I told the jurors that one day I realized, Maybe I need to think about what was happening from my clients' perspective.  How would I feel if I was locked up in a cell by the government, and then the government gave me a lawyer who I was supposed to trust, even though I didn't know anything about this person? How would I feel if I went a couple of weeks without hearing from my lawyer?  I knew how I would feel.  I would feel afraid.

After that, I told the jurors, my answer to a client who was ostensibly disrespecting me changed to something like:  "I don't blame you for feeling stressed; I'm sure I would too if I were in jail and didn't know who I could trust.  I get it.  But let's talk about your case and see if we can make some progress."

This client story transitioned into self-defense, because the law told the jurors to judge whether my client was defending himself from my client's perspective, not from the viewpoint of the stabbed people (did I forget to mention that two citizens were stabbed?), or from their own judgment.  Because if they looked at the situation from the citizens' viewpoint or from their own, they would think, That little punk, he's a thief and doesn't deserve to be in this courtroom--in fact, he should be stabbed right now!--but if they looked at it from his perspective--a dark parking lot, and he was wearing headphones, and then suddenly two people attacked him, knocking his glasses off, and even after he dropped the purse, they still came at him as he lay blinded and deaf on the ground (I know, it's a little much)--they would be able to feel his fear.  And like my experience, if you only look at something from your own point of view, you'll be the one who is blind.

***

I heard a lawyer yelling at his client in one of the attorney booths in the jail the other day, and it made me cringe.  I cringed not because the yelling was so awful, but because I thought, I think maybe I used to do that, too.  Sometimes the treatment we receive by the clients, the court and the prosecutors is pretty outrageous, and it can be nice to yell at someone to vent, and then leave them in jail while we go home, vented, to our families.  All full of vim and vigor, the occasional yelling used to be part of my tough-gal lawyer act.  I'm going to make you understand why I am right and what you should do! was the underlying attitude.

It's kind of a long story, but a couple of months ago I needed to talk to an entertainment lawyer.  Through a friend of a friend, a big-shot Hollywood lawyer agreed to talk to me for free and give me a few pointers.  He talked to me over his lunch hour, and (can you believe this) some lawyers charge money for advice, so it was very kind of him to talk to me.  I have to say, I was pretty whiny and pathetic, feeling very out of my element.  The lawyer guy was quick, funny, all brash and annoying bravado, and he kind of yelled at me.  It wasn't mean yelling, more good advice combined with "don't be an idiot" and caring exasperation--like we sometimes yell at our clients.  OK, I specifically remember him yelling, "Are you really this fucking naive?"

After the phone call, I wasn't devastated or anything, but I remember thinking, Now that really wasn't necessary--and it made me feel kind of bad.  I mean, I'm relatively smart and open-minded about advice, so why yell?  The yelling made me feel slightly stupid and, for lack of a better word, yucky.  I wish I had said to him, "I used to yell at clients like that before I gained more finesse."

***

I'm not sure what combination of experiences led the lawyers at the beginning of this post to hate their clients--probably the disrespect from so many corners and then the one person they're trying to help busting them, too. But I was really surprised by that attitude.  Because the clients are what keeps me here.  I'm not trying to say I'm all that--I'm not sure what kind of badge it is that I like addicts and criminals so much--but I've gone through some on my own changes over the years.

Maybe the only reason I can empathize with my clients is that I know what it's like to fail; I know what it's like to disappoint; I know what it's like to face temptation, and say, "HELL YES!" I know what it's like to screw up my life to a point that it seems unsalvageable; but I also know what it's like to surprise myself; that when you get to that lowest point--you're either going to give up or fight.  I know that the people who think they are immune from bad luck and failure are the biggest and blindest of fools of all. Our clients know more than we think, and they will recognize someone who will talk straight and who knows when to empathize and when to call bullshit.

The Attractive Nuisance Defense

All Out Of Serious

Here they are: Cards for the Public-Defender Occasion.  Print your own, and then save your weary breath from answering all of those worn-out questions!

How they try to dash our plea-bargain dreams with their pesky "policies," such as: "The Prosecuting Attorney's Office has a Policy to Oppose Anything You Want."  Fear not, for we can make our own policies in opposition to their policies, which, by policy, opposes nothing.



I love most of my public-defender friends, even the ones I want to frigging kill.  You know the guy--the one who just won't stop talking, even when 50 other lawyers are waiting in court, and a simple "Yep!" would suffice? I suggest discretely handing him one of these cards while he is still at the lectern.


This is what public-defender dreams are made of:



The police are like the mean girls in high school:  they only want to talk to you now in order to mock you later.



One of the hardest things to learn is to stop spilling your guts to the prosecutor about what is wrong with his case.  I used to say this little speech to every new prosecutor, and then I'd give the new guy one chance by telling him what was wrong with his case, and then he would proceed to screw me with the information I had just given him.  I've had one guy pass this test in 16 years, so now I don't bother.  But go ahead and try--you probably won't be able to help yourself for the first 10 years, anyway.



I should receive some kind of Peace and Justice award for making this next card.  It will save lives.  And stop me from killing people who I would ordinarily like just fine.


Below are the templates to print your own cards.  You can use standard double-sided Avery cards, plain paper, or whatever.  Just click to enlarge and then print.  If you email me, I will send you the document in Word format, but you might not get it until the weekend, because I am having a freaking crazy week.

Actual Naughty List

When I mentioned the Naughty List in my last post, I thought, No one is going to believe this ridiculous shit!  In fact, the more I thought about it, the more unlikely it seemed that an actual "Naughty List" had ever existed, as the idea of it too accurately portrays both some judges' twisted priorities and their patronizing treatment of lawyers.  Sometimes you don't see how crazy something really is, until you try to imagine how someone from say, S. Carolina (Hey, you guys, and thanks for reading!) will see it.

The Naughty List and Other Stories

In an opinion issued last week, State v. A.N.J. (slip opinion no. 81236-5), the Washington Supreme Court allowed a juvenile to withdraw his guilty plea to a sex offense based on ineffective assistance of counsel because his court-appointed attorney's representation "fell below the objective standard guaranteed by the constitution and that A.N.J. was prejudiced." Id. at 31.

A.N.J. is noteworthy for public defenders and has national implications for a couple of reasons:

1) the Court acknowledged the Washington Defender Association (WDA) Standards for Public Defense Services (similar to many other state and national standards) as relevant in "evaluating things like effective assistance of counsel." Id. at 19.

2) the Court also acknowledged that antithetical incentives (in this case, monetary) can corrupt a public-defender system to the point that it is constitutionally inadequate.

When I read the opinion, I was elated that the Court was willing to condemn ineffective practices that make all public defenders look bad (and worse, devastate clients' lives).  I also found myself wincing sometimes, however, because as the Court detailed the litany of things the lawyer had failed to do, I thought once or twice, Hmmm, I might have spent only five minutes reviewing a plea form (on occasion); or, Good Lord, the un-returned phone calls that are a constant background guilt-trip (unfortunately, all the time);  or, What about (some other things I shouldn't put in writing)--does that mean I'm like IAC guy?