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"Some Advice From Your Public Defender":
This "advice" to clients of public defenders has been around for a while, but a public defender who reads the VC thought the essay "would give your non-public defender readers a fairly accurate window into a part of the legal practice they don't know." If you're interested in criminal law or the life of criminal defense attorneys, it's well worth a read.
Ex-Fed (mail) (www):
Wow, that's an oldie but a goody.

A little too burnout-angry for my tastes. Though I've very recently ranted in agreement on the just shut up part.
11.16.2007 5:18pm
More from Craigslist:
More advice from your public defender:
http://www.craigslist.org/about/best/tus/165863945.html
11.16.2007 5:25pm
Sticky (mail):
ANTON!!!!!!!!!!
11.16.2007 5:39pm
Brian K (mail):
what happens if you can't shut up? more specifically, is there some defense towards saying things that you probably shouldn't have while laying in a gurney in an ER pumped full of morphine and who knows what else? does altered mental status not induced by illegal drugs count?

thanks
11.16.2007 5:50pm
Bob Montgomery (mail):
My favorite part:
It does not help if you leave me nine messages in 17 minutes. Especially if you leave them all on Saturday night and early Sunday morning. This just makes me want to stab you in the eye when we finally meet.
11.16.2007 5:54pm
wm13:
That's a good piece. But it reminds of an earlier discussion in these pages on interrogation. As the author makes clear, the cops don't need harsh interrogation techniques to get confessions out of losers like the average petty criminal. That doesn't mean the same techniques (e.g., nodding and saying "I'll bet the b*tch deserved it, huh?") would work on Marc Rich or Al Capone or Khalid Shaykh Muhammed.
11.16.2007 6:18pm
Anonymouseducator (mail) (www):
I was very happy with the guy who defended me.
11.16.2007 6:29pm
Justin (mail):
"Marc Rich or Al Capone or Khalid Shaykh Muhammed"

Which one of these is not like the others?
11.16.2007 6:30pm
Alaska Jack (mail):
Funny and interesting.

As a layman, there does seem to be a slight disconnect between her last paragraph (I sleep fine at night) and the part where she seems to be giving criminals advice on how to commit crimes more effectively ("when you rape/assault/rob a woman on the street, don't leave behind your cell phone ... if you are being chased by the cops and you have dope in your pocket -- dump it" etc.).

- Alaska Jack
11.16.2007 6:39pm
BT:
It is easy to pile on lawyers about what slime balls they are, etc, especially from guys like me who are not lawyers, but this post drives home what cretins many clients are and how difficult it must be to honestly represent them. This also goes for the politically incorrect defendants like serial killers, child molesters, or the Tim Mcveighs of the world, who all deserve honest and vigorous defenses. It is something I don't think lawyers get enough credit for. I am not so sure I could do it.
11.16.2007 6:43pm
one of many:
no disconect there for me. 95% (or more) of the criminals who the public defender represents are going to ignore it anyway, and the ones who actually are capable of learning "how to commit crimes more effectively" are also the few who are going to learn how not to be criminals, if they ever manage to stay out of jail for any period of time.
11.16.2007 6:50pm
Alaska Jack (mail):
Really, really simple question for the lawyers out there:

I assume that, even if you believe your client is guilty, you are still required to mount the best defense you possibly can.

But what if the client actually TELLS you he's guilty. Does the same apply? If not, what happens?

- Alaska Jack
11.16.2007 6:51pm
Alaska:
Alaska Jack:

I have been a criminal defense attorney for a 15 years, 7 of those as a public defender. I have had a number of clients tell me matters that essentially show that they are guilty. The same applies. Here's why:

A criminal case is not a weighing of 2 sides. It never is. Rather, it is an intense examination of 1 side - the State's side. If the State can't prove it, then my client walks, no matter how factually or morally guilty he or she may be. If a client tells me information that demonstrates that he in fact is guilty, I do my best to negotiate a good resolution. Sometimes, that's just not possible. If nothing else, I can go to trial and argue that there is reasonable doubt. Granted, that defense doesn't win very often, but I can present my client with a defense as he is entitled to.

For the most part, though, there is enough ambiguity in evidence that I don't really know what happened. Generally, some witnesses favor the prosecution's side and some favor the defense side. In those circumstances, it can be hard to figure out what happened. And remember, its not my job to figure out what happened. Its my job to represent my client's interests to the best of my ability. I figure that if my client is guilty and the state can't prove it, I protect the rights of other persons. I can defend myself and my family against dangerous people or criminals. Its hard to defense yourself against a powerful government. That's one reason I'm a defense attorney.

As far as other evidence, much of it is right on. I would never, ever, ever under any circumstances, talk to the cops if they wanted to speak to me as a potential witness in a case. It just wouldn't happen. I cannot count the number of clients who have talked themselves into jail. Its not worth it. So, if you learned nothing else from this post, remember that cops are NOT your friends and you should KEEP YOUR MOUTH SHUT.
11.16.2007 7:04pm
Jimmy S.:
In my legal ethics class, we were told that a lawyer who knows his client is guilty can still try to poke holes in the prosecution's case, but he can't positively assert "my client is innocent" or allow the client to get up and tell lies on the witness stand.
11.16.2007 7:10pm
Ex-Fed (mail) (www):
I don't put anyone on the stand to lie and don't offer evidence that I know is fraudulent. But even if the client did it, I can still vigorously attack the credibility and sufficiency of the government's evidence.
11.16.2007 7:20pm
Dan Weber (www):
As far as other evidence, much of it is right on. I would never, ever, ever under any circumstances, talk to the cops if they wanted to speak to me as a potential witness in a case. ... . So, if you learned nothing else from this post, remember that cops are NOT your friends and you should KEEP YOUR MOUTH SHUT.

But on all the cop shows I watch, the police just go and talk to witnesses all the time. And when someone demands to lawyer up first, the cops know they're onto somebody.

I mean this only half-facetiously. I have extremely little contact with the criminal justice system, beyond extensive viewing of Law & Order. If a cop wants to talk to me and I tell him I need to see a lawyer first, what happens in the real world?
11.16.2007 7:57pm
Christopher Cooke (mail):
Dan, I would guess your view is accurate, most people talk to the police, all of the time, without asking for a lawyer.

I have never been a police officer, and don't really practice criminal law, but I used to conduct investigations for the SEC. We would routinely call people at home in insider trading investigations, to ask why they traded and did they know anything that prompted the trading. Virtually all of the people we would call on the phone, without warning, would talk to us first, without asking for a lawyer, even though we read them a script first saying they could and that they didn't have to talk to us. We usually thought that when a witness said, "gee maybe I should talk to a lawyer" instead of talking to us (in insider trading investigations, e.g.), we might be onto something.
11.16.2007 8:07pm
hattio1:
Dan Weber,
On how many of those cop shows, do they not lawyer up, try to bamboozle the police, and give the police a bullshit story that the police can prove is bullshit? Lawyering up may make you seem guilty. Lying out your ass will definitely show your guilty. And hardly anyone, victims included, is honest with the cops. I just wish cops wouldn't buy anything a victim says hook line and sinker just because they're a victim (or, as often, claiming to be a victim).
11.16.2007 8:08pm
Public_Defender (mail):

A little too burnout-angry for my tastes.


Actually, the sense of humor and realism in her post make me think she's a lot less likely to burnout than someone running on pure idealism. If you only get satisfaction by getting not guilty jury verdicts for innocent defendants, you will burn out real, real fast.

I don't think non-criminal defense lawyers understand how much time we spend telling our clients, "Stop being stupid!"

We spend a good chunk of the rest of our time just trying to convince prosecutors and judges that they have to follow the blinkity blink rules. A routine criminal appeal involves the defendant saying, "They broke the rules" and the prosecutor responding, "Yeah, so what?"

Some clients insist that I must believe them innocent to represent them. I once quoted Jimmy Lee Jones from The Fugitive, ("I don't care"), but that backfired royally So now I just tell them that I'm the one person in the system whose job it is to give them the benefit of the doubt.

And even if I'm sure a client is guilty, I still make sure the government follows the rules. That said, I won't permit my client to testify to things I know to be false, and I won't put on evidence I know to be false.
11.16.2007 8:10pm
PD in Florida:
I'm a PD and every day is an adventure. The post on Craig's list is typical 'gallows humor' that can only truly be understand if you practice criminal law, especially as a PD.

What a job. I have about 140 felony cases right now, and I could work 20 hrs a day, seven days a week and still not represent each person as best as I would like, but I love representing individuals. And I love the strategy of a criminal trial practice. Most of our clients think we're not even lawyers.

One of the biggest challenges is dealing with the clients who truly hate you and are looking to grieve you at every turn. My last case, my client kept telling me i was working in collusion w/ the state and we ended up cussing each other out at the counsel table. When I won on JOA, I told him he just got walked by a PD and then I left the courtroom. He stood there, non-plussed. Every now and then you get a chance to save an innocent person from prison, and it makes it all worth the trouble. Wouldn't trade it for anything right now.
11.16.2007 8:38pm
Drake (mail) (www):
"If you're charged with a DUI, don't wear a Budweiser shirt."

Sam Adams okay?
11.16.2007 9:44pm
Public_Defender (mail):

One of the biggest challenges is dealing with the clients who truly hate you and are looking to grieve you at every turn.


I've had a bunch of those. One fired me from his appeal because I woundn't make his flowery but frivolous constitutional argument, but the court wouldn't let me withdraw, so I just kept on. He never bothered to thank me when the court of appeals vacated his conviction because the state failed to allege or prove an element of the offense. He may have been peeved that he couldn't grieve me after I won his damn case.

Most non-PD's would just fire a client who threatened to report them to grieve them. That's part of our job.

But as the anonymous writer said, those clients who do thank you really stick with you. One of my favorites was when a client's family took me out to a diner brunch after I saved their daughter at least five years in prison by litigating her case through three courts and the parole board. I love giving people their lives back.
11.16.2007 9:46pm
Dave N (mail):
As a prosecutor, I think some of the best attorneys out there work for the Public Defender. I am always happily amazed when a criminal defendant "fires" their very qualified Public Defender and hires an attorney with far less skill and competence.

I give defense attorneys the benefit of the doubt--and as long as they play within the rules (just as I must also play within the rules), I have no problem with zealous advocacy and representation.

Oh, and I tell my Criminal Justice students, if you are ever given Miranda warnings, here is your four word response, that must be said every time: "I want a lawyer." You may be completely innocent but you do not know the motives of the officer trying to get the information from you.
11.16.2007 9:47pm
Enoch:
Though I've very recently ranted in agreement on the just shut up part.

Too bad Scooter Libby didn't read this excellent advice before his interviews with the Feds...
11.16.2007 9:50pm
scofflaw:
Yup. I have a client right now who's having to plead to a felony possession charge only because he talked to the police. The State would have had no case against him but for this taped jailhouse interview, where he thought saying things like "I didn't think it was real cocaine" would help him. No cocaine was found on him or in his car, only in the vicinity of where his passenger who fled from the traffic stop was caught. (The original charge was dealing, and if he successfully completes his 1 year of probation after his 3 months in jail it'll be converted to a misdemeanor, so he's getting a pretty sweet deal.)
11.16.2007 10:01pm
Alaska Jack (mail):
Thanks for the replies. I wasn't trying to get in a dig -- I honestly didn't know what a lawyer was supposed to do when the client tells them he or she is guilty. I appreciate the thoughtful explanations.

- Alaska Jack
11.16.2007 10:13pm
Name withheld:
Alaska Jack, what the lawyer can and should do it depends on the jurisdiction. In Washington, D.C., if a lawyer knows absolutely that his/her client is guilty as charged, the client may take the stand and offer a "narrative." The lawyer may not ask him questions to prod him through the narrative, but the client is allowed to speak. Of course, the client should be advised that a defendant giving narrative testimony pretty much sends up a red flag that the lawyer knows that the client is guilty.
11.16.2007 10:35pm
Dave Hardy (mail) (www):
But what if the client actually TELLS you he's guilty. Does the same apply? If not, what happens?

Why should you take the word of a confessed felon?
11.16.2007 11:16pm
The Cabbage:
My Dad just finished jury service today. They voted to convict on a DUI charge.

He said at 4:30, the PD asked for a recess so she could have the weekend to prepare her closing statement. The judge said no, and her closing statement was her crying (literally) for five minutes about what an injustice it was that she didn't have time to prepare.

That was the second day of trial.

He said he watched an amusing video of the defendant's breathalyzer test.

Cop: How much did you have to drink?
Defendant: 3 beers
C: blow in this tube
C: your BAC is .196, the legal limit in IL is .08
D: Damn. Must have been the tequilla.
11.16.2007 11:24pm
Interested Undergrad:
What advice would the PDs (or the the prosecutors, for that matter) have for someone now applying to law school who intends to go into public defense?
11.16.2007 11:39pm
Ex-Fed (mail) (www):
Interested Undergrad, if you mean what to do when you get to law school, here's what I'd say:
1. If you can afford it, look for summer jobs at PD's offices, or else judicial externships. (Summer jobs at City Attorney or DA offices would be good learning experiences, but in my experience, at that stage of your career they don't help much getting you in the door of their opposites).
2. Take all the clinical stuff in criminal law that you can. I learned far more in my clinical experiences than in classrooms. So every student program at a PD's office is a good opportunity.
3. Learn evidence cold.
4. Take every trial advocacy course you can.


Good luck.
11.17.2007 12:19am
PD in Florida:

What advice would the PDs (or the the prosecutors, for that matter) have for someone now applying to law school who intends to go into public defense?



1. don't rack up a lot of law school debt, if you can help it. if you do, you might be forced to take a high-paying, but professionally unsatisfying job.
2. being a PD is not glamorous. your only glory will come inside the courtroom; and most of the time it will be a private glory. on the other hand, if your idea of success and happiness includes much more than that, you may want to reconsider.
3. do a clinic. intern at a PD office or State Attorney office. you'll get a real sense of what it's like in the trenches before you finally decide to make a career of it.
4. in your second or third year of law school, make sure to take classes on police practices, 4th/5th/6th amendment. you will encounter those legal issues every single day as a PD. if you love that area of the law, you will ride life straight to perfect laughter. it's the only good fight there is.
11.17.2007 12:19am
Chris_t (mail):

What advice would the PDs (or the the prosecutors, for that matter) have for someone now applying to law school who intends to go into public defense?



People lie. a lot.

The truth will not out, contrary to popular belief.

OK seriously. . .the best advice I can give you is this: You are married to the facts. Cases rise and fall on facts, not on your legal acumen or your rhetorical brilliance. Just try to do your best with what you have, and you'll do OK.
11.17.2007 12:23am
Gov98 (mail):
Public Defenders do get a pretty bad rap, and quite unfairly in my opinion. Most of the time, the public defenders are the best defense you're going to get. Why? Simple, they have to be in the same courthouse everyday and trials are frequently a lot more enjoyable than pre-trials.

Also, they have a economic system to maintain. That is, if DA offers are consistently one thing they have more reason to push back if the offer is higher for a particular defendant, because they want to avoid the ratchet that might occur for all defendants.

Private counsel on the other hand, almost always has some other place to be, and if they're stuck in trial they're not picking up new clients, so trials get very very pricey. They need to keep they're calendar moving though so they'll walk you through everything, but they'll move you through quicker.

The whole remain silent thing...I know the defense bar is big on remaining silent. That's often because they don't see the benefit of it. That is, the times where the suspect talks and says something that sticks with the cop or DA they don't see, it'll get rejected for filing, they'll only see the times when they do say something stupid. It's a skewed sample is all I'm saying, and talking can, believe it or not, work to the defendant's benefit. Of course, that's really only in those case where the defendant is telling the truth or at least something very plausible. In a lot of cases especially he said/she said or fight (he said/he said) contexts if the suspect invokes it'll get filed on.
11.17.2007 12:26am
PD in Florida:

I honestly didn't know what a lawyer was supposed to do when the client tells them he or she is guilty.



It doesn't matter if he's guilty or not. All that matters is whether the government can prove it. The rules of evidence can be ruthlessly indifferent to the plaintiff's case.

Personally, I'm not interested in whether my client is guilty. And to be honest, more often than not it is an academic question. In practice, the "truth" of what happened is rarely clear cut. "Truth" is not something we are seeking as lawyers. That is a made-up concept that we tell ourselves the jury is supposed to discover after all of the evidence and arguments in trial. The reality of injustice, waste, neglect, and stupidity that happens in courtrooms every day would mortify most people if they looked too closely.
11.17.2007 12:31am
Dave D. (mail):
...As a cop for 32 years I was constantly, ney, serially amazed that folks took the Miranda warning, especially the part " anything you say can and will be used against you " as less than literally true. But when I was read that warning, following my shooting of a felony suspect, I told the detective " No " whan asked if I wanted to talk to him now and further stated " I want to talk to a lawyer 'NOW' ". Later, the detective told me that the District Attorney considered this " Conscienceness of guilty ". That seems odd to me. Even now.
11.17.2007 12:40am
Chris_t (mail):

Public Defenders do get a pretty bad rap, and quite unfairly in my opinion. Most of the time, the public defenders are the best defense you're going to get. Why? Simple, they have to be in the same courthouse everyday and trials are frequently a lot more enjoyable than pre-trials.

Also, they have a economic system to maintain. That is, if DA offers are consistently one thing they have more reason to push back if the offer is higher for a particular defendant, because they want to avoid the ratchet that might occur for all defendants.

Private counsel on the other hand, almost always has some other place to be, and if they're stuck in trial they're not picking up new clients, so trials get very very pricey. They need to keep they're calendar moving though so they'll walk you through everything, but they'll move you through quicker.

The whole remain silent thing...I know the defense bar is big on remaining silent. That's often because they don't see the benefit of it. That is, the times where the suspect talks and says something that sticks with the cop or DA they don't see, it'll get rejected for filing, they'll only see the times when they do say something stupid. It's a skewed sample is all I'm saying, and talking can, believe it or not, work to the defendant's benefit. Of course, that's really only in those case where the defendant is telling the truth or at least something very plausible. In a lot of cases especially he said/she said or fight (he said/he said) contexts if the suspect invokes it'll get filed on.



Great post. And its all true. As far as the day-to-day keep-the-mill-moving cases go, the PD is at least as good as a private attorney, for the reasons mentioned above.

Also, those of you who are PD's should see the crap cases we DON'T file. You would be amazed.
11.17.2007 12:40am
Prosecutorial Indiscretion:
I told a friend the other day, if you're ever caught doing something naughty, make damn sure you get a public defender or, failing that, a former AUSA who's turned to the dark side. The overwhelming majority of criminal defense lawyers I've encountered are grossly incompetent. I've got one case where lawyers are getting paid into the six figures for that case alone and are not doing what they probably ought to be doing for their clients. There is a terrific defense bar out there, but they're obscured by a great many mediocre defense lawyers who (probably unknowingly; I don't think they're inherently bad people) take advantage of the desperate. If you're rich and get into trouble, odds are you'll hire the most expensive counsel - and some lawyers know this and ensure that they're the most expensive counsel. I've been prosecuting for a few years, and so far it seems like the defense bar is a crapshoot and the clients often come up short.
11.17.2007 12:45am
No Name:
Asking for a lawyer suggesting guilt? Good grief! Why would you think that? If a person is not guilty but things have reached the point of a cop suspecting he may be guilty, the person NEEDS a lawyer immediately. You never heard of a not-guilty person being arrested?

Our kids have two lawyers for parents. They were raised to know NEVER to offer evidence or excuses to police, to politely ask if they were under arrest or free to go, to say immediately that they want to talk to a parent and to say that their parents are lawyers, and to PLEAD NOT GUILTY. Blurt out quickly, "I want to talk to my dad; my dad is a lawyer; I'm not guilty." Then keep your mouth shut.

We live in a society where not-guilty people are often arrested. Training your children to respond correctly is as important as teaching them how to cross the street.
11.17.2007 1:35am
BruceM (mail) (www):
I've only had one client I've truly hated. The guy wrote some bad checks and the first time I met him in jail, he told me he'd pay the $3000 or so he owed, he had the money and would pay no problem. I convinced the DA to dismiss the charges (this was NOT his first offense, by the way) if he paid full restituion. Great. The guy then showed up to court to pay the money and get the charges dismissed, except he showed up without any of the money. We went through this FOUR more times (had to get a continuance/reset of the hearing)... amazingly the DA put up with it out of sympathy for me.

After the 2nd interation of this, my client threatened to kill me because he wanted to use the legal fee his girlfriend paid me to cover the restitution (i.e. I should pay his $3000). This guy was a piece of work. Smelled like shit, never took showers, total meth addict.... fortunately he is now serving 2 years in prison on a different (drug) charge.
11.17.2007 2:43am
wisconsindoug (mail):
As a former PD, I can readily identify with the writer of this essay. As a PD I have:
1. told client to shut up when they were reciting for the judge what made them guilty. I had been appointed to represent a young man in a show cause for violating his restraining order. He was facing a number of other felony charges based on the violation. I told him to plead no contest and not to say anything. He ignored my advice and told the judge everything that happened. He later told me he knew that he was going to prison anyway.
2. Was a GAL in a case in which one of the respondents showed up drunk so that the judge had the bailiff give him a breathalyzer test.
3. had a judge try to impose a dress code on the defendants in his court and then attempt to have the PD enforce it. That did not last long.
4. Had the same judge attempt to hold the PD responsible for knowing why and where the defendant was when they did not show up for court.
5. Clients that stunk so bad, I could barely keep from gagging.
6. yelled at clients before. (only once)
7. Clients that call and pester me to death, then disappear day of hearing.
8. Clients who can bread like rats, and yet my wife and I could not at the time have children.
9. male clients ask me to explain why it was wrong to have sex with that 13 year old when she asked for to do it.
10. To be asked if I was a real lawyer, or was working for the prosecutor.
11. had grievances filled against me.

Need I go on? If you want to to PD, your clients will look down on you most of the time, the prosecutor will pity you and the judge wont understand why your client wants a trial.

Every once in a while, I client thanked me or I felt I made a difference. That made it worthwhile.
11.17.2007 4:19am
Public_Defender (mail):

What advice would the PDs (or the the prosecutors, for that matter) have for someone now applying to law school who intends to go into public defense?


Get a good generalist's education in law school. You never know when that corporate law (responsibility for a group), contract (plea), insurance (restitution), commercial tranactions (bad check) doctrine will come in handy. Also, understanding civil procedure is critical for handling declaratory judgments and writs. I could go on, but you get the picture.

Do take elective criminal procedure classes, but don't forget to get a broad legal education when you have the chance. You have the rest of your life to take criminal law continuing education classes. You only have three years to get a broad understanding of the law.

It does make sense to get involved with criminal law clinics, but not for the substance. First, the people who hire PD's look for dedication in addition to competence. Second, you will learn whether you enjoy the work and the people you have to deal with. Third, it gives you a network of references.

All hiring is local. So, if you want to get a job in a specific city, call them and ask how they hire. I know one office that only hires entry-level people through a program at a local law school. If that's the office you want to work in, you've picked your law school.

And I agree that finances are critical. Keep an eye on your student debt. There is a new federal program on debt forgiveness that could help, but less debt means more flexibility.

If you can get one of those high paying big firm jobs, think about taking it for a couple of years. You will learn a lot, and if you are careful with money (live like a PD, except for the big firm wardrobe), you will be able to pay off a bunch of your loans and start some savings. During that time, get connected with the local defense bar.
11.17.2007 5:03am
Public_Defender (mail):

. . . There is a terrific defense bar out there, but they're obscured by a great many mediocre defense lawyers who (probably unknowingly; I don't think they're inherently bad people) take advantage of the desperate. . . .


There is a tremendous market failure in the selection of private defense counsel. The customers (clients) just can't intelligently choose which lawyers will serve them best. The clients lack the knowledge of how to choose, and if they are locked up, they have no way to do research other than to ask the other idiots with whom they are locked up.

There's one glaring exception--cops. Cops generally know who does the best job. So, if you need to hire a criminal defense lawyer, you're not lucky enought to qualify for a public defender, and you have enough money to hire the best, hire the same lawyer the cops hire when they get into trouble.
11.17.2007 6:44am
Public_Defender (mail):
The other short-hand way to pick a good private defense lawyer is to look at the size of his or her Yellow Pages ad. The bigger the ad, the more that attorney depends on uniformed people picking a lawyer based only on advertising.

In my experience, the best lawyers list only name, address, and phone number in one line of text.
11.17.2007 6:55am
Humble Law Student (mail):
I have a question. What happens when you ask for a lawyer and the police then threaten to charge you with all sorts of stuff if you insist on getting a lawyer?

I had this happen to me when I was in high school. I was completely innocent of what they suspected. They were actually going after an acquiantance of mine. However, when the police confronted me in the principal's office, I completely caved. After the threat, I said, okay, okay, I'll talk. I admit I was scared to death.

Is that just unprofessional? Or, is it an ethical or legal violation as well? Surely, the police can't use threats to coerce you to give up a right, can they?
11.17.2007 11:05am
OrinKerr:
Excellent advice, Public-Defender.
11.17.2007 11:12am
PD in Florida:
The whole remain silent thing...I know the defense bar is big on remaining silent. That's often because they don't see the benefit of it. That is, the times where the suspect talks and says something that sticks with the cop or DA they

don't see, it'll get rejected for filing, they'll only see the times when they do say something stupid. It's a skewed sample is all I'm saying, and talking can, believe it or not, work to the defendant's benefit. Of course, that's really only in those case where the defendant is telling the truth or at least something very plausible. In a lot of cases especially he said/she said or fight (he said/he said) contexts if the suspect invokes it'll get filed on.



nothing good ever comes from talking to the police w/out a lawyer when you have become to target of suspicion. the problem is, you won't always know if you're a suspect. so, in all cases, the proper response is: "I wish to speak to a lawyer" then, STFU.
11.17.2007 11:15am
PeteRR (mail):
We have a criminal defense lawyer as a member of our gun club. Since the firearm's laws in NJ are draconian while also being arcane, and many people get snagged on technicalities, he handed out wallet-sized cards to every member with S.A.C. embossed on them.

S = keep Silent
A = Ask for a lawyer
C = never Consent to a search

He told us that if we followed this advice he would have a better than average chance to get the charges thrown out. It's been 10 years and I still have the card in my wallet.
11.17.2007 11:18am
Swede:
Just out of curiousity, what's a PD's convicted/not convicted ratio look like?

I mean, are you getting 25% of your clients off? 15%? 50%.

The reason I ask is that if you're keeping less than 50% of your clients out of jail should't some of the stellar advice you're giving to them include not picking up the soap and punching the biggest guy right in the nose?
11.17.2007 1:51pm
Dave N (mail):
Just out of curiousity, what's a PD's convicted/not convicted ratio look like?
That is the wrong question. Remember, 90-95% of all criminal cases end up in a plea bargain. Remember also, the police have a strong motive to get the right guy in the first place. After all, they look pretty stupid if they arrest the wrong guy and the right guy later confesses.
11.17.2007 2:22pm
Dave N (mail):
The better question might be, "What is your success rate for the cases that go to trial?"
11.17.2007 2:23pm
Humble Law Student (mail):
Swede,

This isn't a direct answer, but in one of my classes we read some articles that stated that PDs have almost the exact same convicted/not convicted ratio that private defense attorneys. Now, what that ratio was . . . I entirely forget.
11.17.2007 2:47pm
33yearprof:
Humble Law Student,

You asked "Surely, the police can't use threats to coerce you to give up a right, can they?"

Yes, they can and they do. They just testi-lie about it later. "Never happened, your Honor."

Did you see the U-tube video of the St. George Missouri sergeant making things up as he went along (before he realized it was on tape)? He got promoted to sergeant as a reward for being the best lier in the room. He is not atypical (whoops, lawyer-speak). Lets try that again, virtually all of them will tell what they consider "little lies" if they know-in-their-heart the perp is a prep. After all, if he didn't do this crime, he got away with something similar yesterday.

My greatest coup as a PD was getting a detective sergeant prosecuted for a pre-trial alteration of my client's written confession (he didn't know the prosecutor and I had made photocopies earlier). Perjury and felony tampering with evidence. I walked on air for months (and the police stopped f**king with my clients for a while).
11.17.2007 3:16pm
ChrisO (mail):
Yes, I love that police can lie to you when investigating, but lying to the police can put one in jail.
11.17.2007 3:22pm
one of many:
Dave, even that question doesn't really cover the effectiveness of PDs since cases can be dropped by the prosecution before trial. I'm not certain there is a good way to objectively measure the effectivenss of PDs. How can you compare the effectiveness of a lawyer who consistantly gets 80% of OUI offenders off in a jurisdiction where the police regularily ignore procedure to the effectiveness of the lawyer who gets 10% of their clients off when defending the guys who kill their dates and confess it?
The same applies to Swede's question, which should probably be "how many of a PDs clients go to jail or prison versus how many do not?" The nature of the PD, the inclinations of the prosecutor, the judges who hear the cases and local laws are some of the factors in determining how many of a PDs defendants go to jail more than the effectiveness of the PD.
11.17.2007 3:41pm
Humble Law Student (mail):
33yearprof,

That video is pretty crazy. Is the moral to the story to have always a recording device when confronted by the police?
11.17.2007 3:50pm
Public_Defender (mail):

The reason I ask is that if you're keeping less than 50% of your clients out of jail should't some of the stellar advice you're giving to them include not picking up the soap and punching the biggest guy right in the nose?


Go back to my first point. We PD's spend a lot of our time telling our clients to stop being stupid. They frequently don't listen, which explains how they became our clients in the first place.

There have been studies, and my recollection is that we PD's come off looking pretty good.

But performance is really hard to objectively measure. I do mostly appeals. I've had some wins that might appear spectacular, but the facts and law were so strongly on my side that the quality of representation wasn't key. I'm most proud of the wins in close cases and where I've navigated through procedural minefields. Heck, I've won a couple where I would have ruled against my client if I had been the judge.

You get a good reputation by winning where others would not, and getting better results than others would get in similar situations. It's informal and subjective, but go to any courthouse, talk to people, and you'll quickly learn who does better than others. And I'm proud to say that PD's often have some of the best reputations in any given courthouse.

One reason is that it's harder to coast by with poor performance when you have a supervisor and you work in the fishbowl of a courthouse. PD's who get good results stay, PD's who screw up are moved to positions of less and less responsibility until they leave or are fired. A poorly performing solo practioner can often coast by because no one is supervising and because clients have such poor information about the quality of counsel.
11.17.2007 4:58pm
ErnieG (mail):
I sat on a jury once, where I was sure that the PD was the dumbest cluck who ever wore a coat and tie. The defendant was the meanest looking dude I have ever seen, and he was accused of assaulting the nurse who brings the pill tray around at the county jail by stepping on her hand. The county had a parade of witnesses, and all he did was ask dumb-ass questions, like he didn't understand what was going on. When the prosecutor said, "The State rests," he stood up and said, "The defense rests."

I thought at the time that that was either the dumbest or the ballsiest thing that I had ever seen. In our deliberations we concluded that the State had anticipated a slam dunk, so they had put a sloppy case together, with numerous inconsistencies and no hard proof. These inconsistencies had been exposed by the "dumb-ass" questions. His performance had been so artless that the prosecutor had not seen it as an attack.

We voted to acquit.

If I ever get in trouble, I want that guy on my side.
11.17.2007 6:15pm
anonVCfan:
I'm reminded of this. (Chris Rock)
11.17.2007 7:07pm
Dave Hardy (mail) (www):
Go back to my first point. We PD's spend a lot of our time telling our clients to stop being stupid. They frequently don't listen, which explains how they became our clients in the first place.

My former law partner, now a PD, just had a felony trial where the D had two priors. He sandpapered him on how to answer smoothly, etc.. Spent lots of time on it. And when he questions him, the answers are:

Q. Do you prior felony convictions?

A. Yes.

Q. How many?

A. This will be my third.

He still hung the jury! Five years ago, the PDs here were not anything to write home about. A lot of dead wood, and the rest demoralized. Then two of the three best criminal law guys quit their private practice, said they'd made their money, and become top and deputy PD. The dead wood was forced out. They hired experienced people, got them to train the new ones to fight.

Last I heard the office was boasting of a win rate over 50% on jury trials, and of having won eight motions to suppress in a row. Now it's the prosecutors who are demoralized. (In part because of a bunch of scandals: a murder case where several knew just who did it and delayed telling the police for some time (they were covering for a friend and former prosecutor who had told them of the evidence), a case where one got disbarred over concealing exculpatory evidence in a death penalty case, and a third who died and, when his files were examined, a number of convictions were set aside for his having withheld the same).
11.17.2007 7:10pm
Dave Hardy (mail) (www):
n my legal ethics class, we were told that a lawyer who knows his client is guilty can still try to poke holes in the prosecution's case, but he can't positively assert "my client is innocent" or allow the client to get up and tell lies on the witness stand.

I know the rule was you can't put him on the stand to lie, seem to recall that's been modified a little, forget just how. As far as the argument -- you should NEVER say your client IS innocent. Or, in a civil case, did this or that. That's testifying to a fact or, at best, expressing your personal opinion. You argue that the evidence SHOWS he is innocent, or that there is no proof beyond a reasonable doubt, or that he was injured, or the other guy wasn't wronged.
11.17.2007 7:13pm
PD in Florida:
"It's not a lie if you believe it." - George Costanza
11.17.2007 7:22pm
Hewart:
The YouTube video of the abusive Missouri cop is outrageous. I sincerely hope the police officer lost his job for his completely unhinged, thuggish behavior.
11.17.2007 8:59pm
Ex-Fed (mail) (www):
Q. Do you prior felony convictions?

A. Yes.

Q. How many?

A. This will be my third.


Hilarious.
11.17.2007 9:15pm
Public_Defender (mail):
One of my favorite client mistakes is when clients who are accused of commiting their crimes through bullying and manipulation try to bully and manipulate me. Sometimes I just want to paraphrase Jabba the Hut, "Your batterer mind tricks won't work on me."

On the serious side, keeping these clients under control is critical. Jurors pick up on the relationship between counsel and client. If a defendant is constantly angry and controlling with counsel in the courtroom, the jurors figure the defendant is always like that.

On the flip side, a colleague said that a jury told him they acquitted his client because my colleague had gently patted the defendant on the back when the defendant passed by him in the courtroom. The jury figured that if counsel wasn't afraid of the guy, they shouldn't be either.
11.17.2007 9:58pm
Curt Fischer:

The YouTube video of the abusive Missouri cop is outrageous.


Even more outrageous was the cop's boss's response. The video has the cop yelling "Do you want to go to jail!...for some f*cking reason I come up with" at the boy.

If you watch the third video on youtube, the local TV station interviews the police chief where his response is "with the language, there are certain things that were said that I do not condone."

In other words, if cops in St. George accost citizens with "I will make up a f*cking reason to send you to jail," the police chief will not condone it: Not because his officers abuse their power and make baseless threats to citizens....but because they used profanity.

The mind boggles.
11.18.2007 1:52am
ReaderY:
God help an innocent person who gets a public defender from this school
11.18.2007 1:58am
Public_Defender (mail):

God help an innocent person who gets a public defender from this school


If you are talking about the author, I think you are mistaken. If she didn't care, she'd tell her clients to do what they wanted. Instead, she tells them colorfully and repeatedly, "STOP BEING STUPID!"

Even our innocent clients usually did something stupid to bring themselves under suspicion--they did something else illegal that they weren't charged with, they hung out with criminal idiots, or they did something that was just on the line between boorishness and criminality.

So pretty much all our clients, including the innocent ones, need the stop-being-stupid advice. And they often need that idea expressed very directly.
11.18.2007 7:18am
Been There:


I don't think non-criminal defense lawyers understand how much time we spend telling our clients, "Stop being stupid!"


Not just on the defense side. I asked my criminal law prof what the hardest part of her job had been as a prosecutor, and she said, "The police making basic mistakes that destroy the case."
11.18.2007 1:17pm
Peter Wimsey:
There are really two parts to the "shut up" advice: (1) don't talk to police, ask for a lawyer; and (2) don't brag to your friends about your crime. (1) has been covered sufficiently, but I've been involved in countless cases (on the state's side) where the crime would never have been discovered if the D hadn't told someone else what he did. And it really doesn't matter who he tells: if he tells a lowlife friend, the friend will eventually get picked up for something and tell the police about the other crime; if he tells a law abiding person, they will be appalled at the crime and tell police.

Usually it's the lowlife friends who cause the trouble, though.

I'm also of the opinion that PD's are better than most private defense counsel, with the possible exception of certain complicated crimes (white collar, environmental, financial) where hiring a specialist private attorney might make sense.
11.18.2007 5:50pm
Roscoe (mail):
One caveat to the "shut up" rule. You should shut up if you are guilty of the crime, or of something else. If you aren't you should cooperate with the cops, so that (1) they will stop focusing on you, and (2) maybe start looking for the real bad guys. I think most everybody is at greater risk of being a victim of a crime than being charged with a crime they didn't commit (the former has happened to me a couple of times now, I don't lose a lot of sleep worrying about the latter). It behooves us all to help the cops investigating a crime, both because it is in our interest and because it is the right thing to do as a responsible citizen.

On a related point, as a former AUSA, I agree that the PDs (and the panel attorneys) are pretty good. I remember one defendant I had who drew a panel attorney from Paul Hastings. The defendant was all set to fire him and hire some lump, when he figured out he had a good deal. To bad, I remember I got papered to death on the case.
11.18.2007 6:58pm
33yearprof:
A former AUSA said: "You should shut up if you are guilty of the crime, or of something else. If you aren't you should cooperate with the cops, so that (1) they will stop focusing on you, and (2) maybe start looking for the real bad guys."

Not true. You should ALWAYS shut up until you get competent legal advice. The police will be happy to take your statement whenever you are good and ready to give it. I've never heard an investigator say "no, we don't want to hear it."
11.18.2007 10:48pm
PD in Florida:

One caveat to the "shut up" rule. You should shut up if you are guilty of the crime, or of something else. If you aren't you should cooperate with the cops, so that (1) they will stop focusing on you, and (2) maybe start looking for the real bad guys. I think most everybody is at greater risk of being a victim of a crime than being charged with a crime they didn't commit (the former has happened to me a couple of times now, I don't lose a lot of sleep worrying about the latter). It behooves us all to help the cops investigating a crime, both because it is in our interest and because it is the right thing to do as a responsible citizen.


that is not good advice for a PD client. PD clients tend to be less educated, less composed and succumb greater to inherent coercive tactics common to police interrogation. police rarely record their conversations with defendants, and so there can be a large gap in what is written in the police officer's report versus what was actually said. at that point, it comes down to who does the average jury believe in trial -- the officer's recollection of the conversation, or the 18 year old black kid with a felony record?

the best advise is to keep quiet and request a lawyer. and i just reiterated that advice tonight to an 18 year old client in jail.
11.19.2007 1:03am
hattio1:
Chris T,
You said you reject cases? What an amazing concept!!! The local DA here charged somebody with harrassment for flipping someone off in traffic. A class A Misdo, up to a year in jail. For something that happens millions of times every rush hour. And that isn't really the worst, just the most illustrative.
11.19.2007 1:27am
Sparky:
Humble Law Student:

The right thing to do, though few people have the cojones to do it, is to keep telling yourself that even if you pass on the lawyer, they're going to charge you with all of the same stuff.

Oh, and also that the charging decision is ultimately up the D.A., not the police.

One caveat: At least in California, you can argue that you were essentially promised leniency if you passed on the lawyer. That should render your subsequent statement involuntary and hence inadmissible. (See, e.g., People v. Chun (2007) 155 Cal.App.4th 170.) But you better hope the interrogation is on tape; otherwise, the cops can deny the whole thing.
11.19.2007 11:26am
Virginian:
I had a professor in law school (who had a rather large ego) who told us that he was a criminal defense attorney early in his career, but changed to real estate after a few years because "while everyone deserves a lawyer, they don't deserve me"!
11.19.2007 11:26am
About to spread my wings:
"It's fun to defend the guilty, but it's terrifying to defend the innocent!"
11.19.2007 11:52am
WHOI Jacket:
To all the Public Defenders reading the blog: Thank you for your hard work. You help make the system (for all of its benefits and flaws) possible.
11.19.2007 12:30pm
SC Public Defender:
As to conviction rates, you need to understand that there are very different definitions of what a "win" is. When my (non-lawyer) friends ask me, "did you win your trial?" I say, it depends on what you mean by win. If you look at straight "not-guilties" that's going to be a fairly low percentage---because, lets face it, most of our clients are guilty. If you look at sentences that were less than the plea offer, or convictions for lesser included offenses (which you had previously offered to plead to), we count those as wins and the percentages go way up.
11.19.2007 1:59pm
abu hamza:
wow I was reading these comments and read that Dave D. shot a guy when he was a cop. Amazing. I'd love to hear more. Did you get put on paid vacation -- er -- administrative leave for that? Nowadays you don't even miss a paycheck if you kill a suspect, that's the standard.
11.19.2007 2:24pm
Lugo:
If you look at sentences that were less than the plea offer, or convictions for lesser included offenses (which you had previously offered to plead to), we count those as wins and the percentages go way up.

As a citizen, I don't necessarily regard these as a "win" for me...
11.19.2007 2:29pm
NickM (mail) (www):
Many of those same statements are good advice to civil defendants.

Sometimes the only difference in advice is that the PD doesn't need to tell the client about the consequences of bouncing a check to his lawyer.

Nick
11.19.2007 5:57pm
Public_Defender (mail):
WHOI Jacket, you're welcome. And thanks.

* * *



If you look at sentences that were less than the plea offer, or convictions for lesser included offenses (which you had previously offered to plead to), we count those as wins and the percentages go way up.

As a citizen, I don't necessarily regard these as a "win" for me...


Why not? Is it wrong that the defendant was convicted and sentenced for what he actually did instead of what the prosecutor (think Nifong) said he did? But in judging whether a PD did his our her job, it's a fair measure.

You also make a point, in individual cases, our job is to protect our clients, not society. But more generally, our job is to make sure the prosecutor, police and courts follow the the law.

* * *


wow I was reading these comments and read that Dave D. shot a guy when he was a cop. Amazing. I'd love to hear more. Did you get put on paid vacation -- er -- administrative leave for that? Nowadays you don't even miss a paycheck if you kill a suspect, that's the standard.


I think this is unfair. We require cops to make snap judgments on the use of deadly force in unclear situations. They deserve a little leeway and yes, even compassion, when they make those judgments. That said, there is room for improvement:

1) It should be harder to prosecute cops for making the wrong choice;
2) It should be easier to fire or discipline cops for making the wrong choice;
3) Cities should ban cops from getting 48 hours before making a statement. Cops should get the same choice that the rest of us have--talk or take the Fifth. And the resy of us would face employment consequences for taking the Fifth during an employer's investigation--so should cops.

* * *

And thanks, Professor Kerr, for posting this.
11.19.2007 6:20pm
hattio1:
I agree that cops are called on to make snap judgments regarding deadly force in unclear situations. But given that there is essentially NO consequences for making the wrong choice (rarely if ever fired, civil damages paid by municipality, rarely prosecuted) I guess I would like to see the chance of prosecution go up. I mean, we pretend that a drastic punishment (the death penalty) applied very rarely makes regular folks make better decisions, why not apply the same logic to cops?
11.19.2007 9:32pm
Public_Defender (mail):

I mean, we pretend that a drastic punishment (the death penalty) applied very rarely makes regular folks make better decisions, why not apply the same logic to cops?


Because we sometimes expect cops to kill people, that's why. As I said in my comment, I agree that it needs to be easier to discipline cops bor bad decisions, but you were taking it out on a specific cop based on a specific incident in which you did not know any of the facts.
11.20.2007 6:02am
Lugo:
Why not? Is it wrong that the defendant was convicted and sentenced for what he actually did instead of what the prosecutor (think Nifong) said he did?

I understood the original comment to mean that sometimes a plea bargain is offered, but rejected, and then the defendant is convicted of the crime in question but given a sentence that is less than the original plea offer. This outcome is not a "win" from the standpoint of Joe Citizen, because the criminal is back on the street faster.
11.20.2007 8:12am
Public_Defender (mail):
This outcome is not a "win" from the standpoint of Joe Citizen, because the criminal is back on the street faster.

You assume that the sentence the prosecutor recommends in a plea bargain is always the correct sentence. Sometimes, prosecutors sometimes charge people with too serious of an offense. Othertimes prosecutors demand too much as to sentencing.

Let's say that the possible sentence for a bad check is 0-24 months. The prosecutor offers 22, but the defendant says that's not worth it, so goes to trial. After a conviction, is it automatically a "loss" for "Joe Citizen" if the judge decides 12 months is the right sentence?
11.20.2007 6:34pm
Enoch:
You assume that the sentence the prosecutor recommends in a plea bargain is always the correct sentence. Sometimes, prosecutors sometimes charge people with too serious of an offense. Othertimes prosecutors demand too much as to sentencing.

Who is to say that any sentence is "too much"? Not the PD or the defendant himself, who naturally want to minimize it.

Let's say that the possible sentence for a bad check is 0-24 months. The prosecutor offers 22, but the defendant says that's not worth it, so goes to trial. After a conviction, is it automatically a "loss" for "Joe Citizen" if the judge decides 12 months is the right sentence?

Yes. The bum now has an extra 10 months out on the street to pass more bad checks and to get involved in the other types of sleazy scams that such creatures inevitably are drawn to. The public is undeniably better off if he serves 22 months, if not the full 24.
11.20.2007 9:44pm
Public_Defender (mail):
Unless you concede that the appropriate sentence for all offenses is life without parole or death, then sentences can be "too long," especially for low-level offenses.

As to the hypothetical bad check writer, Would the public be "undeniably" better off if they pay to imprison the defendant for 50 years for a single bad check? Remember, the public pays roughly $2500 per month to imprison this person. If the person is doing less damage to society than that, the public is losing.

Also, prison often doesn't treat the real problem. Probation often comes with terms that help get people with other problems (mental illness, substance abuse, etc.) back on their feet, and much more cheaply for taxpayers. Prison often just warehouses them. Even when prison offers useful programs, they are much more expensive for Joe Citizen than programs on probation. When I talk to folks in corrections, they are constantly studying their programs to see what succeeds and what doesn't.

And remember, the judge gets a sense of how much time offenders with a certain back get for certain offenses. It's the judge's job to make sure each defendant gets a sentence proportionate to the harm the defendant has caused and the risk the defendant poses. That inevitably means that some defendants get longer sentences than others. And that inevitably means that some defendants get shorter sentences than others.
11.21.2007 5:01am
Lugo:
As to the hypothetical bad check writer, Would the public be "undeniably" better off if they pay to imprison the defendant for 50 years for a single bad check?

That wasn't one of the options in the original discussion. The range was 0-24 months, and that being the case, I'm not sure why 24 months shouldn't always be the answer.

Prison often just warehouses them.

Good. That is a valid and necessary purpose.

Even when prison offers useful programs, they are much more expensive for Joe Citizen than programs on probation.

If we could quantify the "costs that society does not incur because someone is in prison and cannot commit crimes", then the "expense" of prison would seem much more reasonable.

When I talk to folks in corrections, they are constantly studying their programs to see what succeeds and what doesn't.

The recidivism rate argues that we don't actually know much about what works and what doesn't, and therefore "warehousing them" is not such a bad idea after all.
11.21.2007 1:32pm
Public_Defender (mail):

That wasn't one of the options in the original discussion. The range was 0-24 months, and that being the case, I'm not sure why 24 months shouldn't always be the answer.


When the legislature sets a range, that tells the judge that some defendants should be at the top, and some at the bottom. If you think eveyone should be giving the maximum for a given offense, that means you have concerns that should go to the legislature, not the judiciary. Giving everyone the maximum because you think the legislature got the range wrong would just be judicial activism.

If you think that all bad check writers (even a first offender who writes a $10 bad check trying to pay for medicine for a sick kid and who makes restitution almost immediately) deserve at least 24 months, then the range should begin at 24 months--say, for example, 2 to 5 years.

So, what do you think the range of punishments should be for writing a bad check should be--top and bottom?

And remember prisons are probably overcrowded in your state, so sending the bad check writer to prison for years will just pressure the parole board to let someone convicted of murder (or another serious crime) out on parole that much earlier. But hey, it feels good to call for "the maximum."
11.21.2007 2:37pm
E:
Lugo, the cost of writing a bad check are usually quantifyable, and may very well be under $2500 * 24.
11.21.2007 2:42pm