July 12, 2024


Equality opinion

On working with indigent criminal defendants

by Jamison Koehler on May 13, 2022
Jefferson Memorial

With the information that my smart and socially fully commited niece Somers Brush has started work as a general public defender in Detroit, I have been reflecting on the earlier 15 yrs I have expended representing indigent defendants:  three a long time as an assistant general public defender in Philadelphia and, because then, accepting court docket-appointed cases as part of my non-public criminal defense practice in Washington, D.C.  

Is there any advice I can offer her?  

Lesson Amount #1:  Never press a plea

I have figured out from bitter experience that getting emotionally invested in a consumer getting a plea – even the best plea conceivable — is nearly usually counterproductive.  People have a tendency to be contrarian:  If we tell them they have to have to get a plea, they will believe of numerous causes why they shouldn’t.  

As a outcome, I use a sort of reverse psychology when broaching the situation of a plea with a shopper.  Only just after going via the information of the scenario and my technique for getting it to demo do I then inform the consumer – practically parenthetically — that there is a plea provide on the table.  I uncover that when I do it this way it is the shopper, not me, who retains coming back again to the plea.  “That is fantastic and all,” the consumer says.  “Thank you. But what would occur if I took this plea?”

If this seems as if I am remaining manipulative, it is legitimate:  I am.  Absolutely.  But it potential customers to the very best end result.  This is our client’s lifestyle, not ours, and the choice whether or not or not to choose a plea is fully the client’s. The client requirements to appear to the selection on his/her possess.  He/she has to affirmatively want to enter into the plea.  Otherwise, the client will enter into an sick-deemed plea. Or the agreement will drop apart during the plea colloquy.  

One more cause not to thrust a plea is that, just as I have dropped conditions I was absolutely sure I was going to earn, I have also won conditions that, at initially glance, I imagined ended up lifeless dog losers.  You in no way know:  complainants recant or shift absent, the federal government loses parts of evidence, and conditions are dismissed before demo.  This happens much additional than men and women comprehend.  Or witnesses adjust their stories or lie and you stop up with a acquire at trial.  Body worn digicam data files are the ideal detail that ever transpired to legal defense attorneys.  

When I was a public defender, I made use of to admire the older, more skilled attorneys who could acquire any crack and open up the government’s case extensive open. They would see items that I had skipped. After decades of carrying out this, I now have the self confidence to imagine that any circumstance is potentially winnable.  All we have to have is that very small sliver of mild.  

In arguing not to force pleas, I am also motivated by possessing interviewed hundreds of clients who, when speaking about their legal histories, only converse ruefully about the instances they resolved to plead responsible.  The regret appears to be to previous permanently:  My attorney talked me into taking that plea, they say.  I really should have taken it to trial.  

Conversely, I assume of a consumer in Philadelphia who, after insisting on getting a awful situation to trial, got slammed with a lengthy jail sentence.  I recall him thanking me at sentencing for my advocacy and then thanking the choose as he was led absent in handcuffs.  I don’t know how he felt the upcoming day when the reality of a extensive jail remain started to sink in.  But on that day in any case, he had the pleasure of being aware of that he had had his working day in court docket.  He had exercised his constitutional appropriate to a trial.  He had been listened to.  

Lesson #2:  There is no need to defend the process

As we assist our purchasers navigate the prison justice program, a program that is frequently complicated and unfair, we will necessarily discover ourselves describing things. Outlining the technique, however, does not indicate that we have to protect it.

Unlike retained customers who think we are fantastic (they would not have employed us if they did not have confidence in and regard us), quite a few court docket-appointed shoppers will be skeptical of both of those our expertise and our motives.  Knowing that our paycheck comes from the governing administration, they normally lump us in with the governing administration.  I detest when customers speak about “you all” this and “you all” that.  

Our criminal justice method definitely does stink. Why have I normally observed myself so unwilling to say so/concur with customer when they complain? Purchasers need to have to know that we share their outrage.  They will need to know that we are on their facet.  

Often when the govt has accomplished a thing I disagree with, I have observed myself heading off on a long rant when speaking with a customer.  My inclination is to cease myself.  Then I think:  Why not let the shopper listen to my frustration?  Chances are, I am putting voice to particularly what the client is emotion. 

Or, just ahead of we are about to appear in entrance of the decide, I will preview my argument for the consumer.  It is great to follow the argument.  More importantly, clientele enjoy to hear us display screen this passion — the two privately and right before the courtroom.  

There was a non-public law firm in Philadelphia who employed to consider the defendant’s cash for the original listening to or two and then dump the customer on the general public defender’s business office to thoroughly clean up the mess.  None of us in the public defender’s office environment experienced at any time noticed him in fact consider a circumstance.  And he had no clue when it came to the legislation.  

But he did set on a terrific clearly show:  “You have experienced your switch,” he would say when the prosecutor would try out to item.  “Now it is my time to speak.”  Defendants would chase him out of the courtroom when he was finished, asking for his card.  

Lesson #3: Hardly ever contradict your customer in court

At some level any attorney who does indigent defense will obtain him- or herself being dressed down in court by an disappointed and ungrateful shopper.  “My law firm doesn’t think in my situation.”  “My lawyer never arrives to see me at the jail.”  Or:  “My law firm never ever conveyed the plea give to me.”  

My favored grievance was anything I listened to from a juvenile defendant speaking about his attorney:  Would it get rid of him to use a breath mint or two? 

The normal inclination, of system, is to protect oneself:  “Are you kidding me? I have been out to see Mr. Smith at the jail a few periods in the previous week on your own.”  

In its place we hold our tongue.  We continue to be expressionless.  We do not change back again to the gallery and roll our eyes.  We never ever contradict our customer in courtroom.

I have viewed colleagues engaged in outright spats with their clientele in open up court docket.  Not a very good glance.  “We are likely to act like adults here,” mentioned the judge to just one of the attorneys.  

Our colleagues sitting down in the gallery will themselves have been on the acquiring finish of such unfair criticism at one particular place.  They will acquire what the defendant suggests about us with a grain of salt.  What they will not forgive is any demonstrate of disloyalty.  

Lesson #4: A light-weight touch generally is effective finest.

Criminal protection is a severe and generally depressing business enterprise.  Someone or anything has been harmed, and our shoppers are struggling with repercussions that could previous for the rest of their life.  

But that does not mean we need to be all doom-and-gloom.  

I have observed that customers reply best to a heat, welcoming, comforting experience when we show up at the jail.  Who likes dour?

I have realized a large amount from listening to the recorded jail phone calls of my clients. Eavesdropping on my clientele talking in unguarded moments with their good friends and families, for case in point, I have discovered that I have had the unfortunate pattern of showing rushed or harried in my dealings with clients. 

I need to chill out, throttle back.   I need to discover not to get anything so critically.

Hearing 1 of my customers carrying out an impersonation of me (prefaced with “my attorney says”) with this loud and exaggerated tone of voice has taught me that I will need to dial items down a bit.  I have to have to listen.  I will need to act extra like a particular person and considerably less like a law firm.  This is notably legitimate contemplating I am an older white male and most of my indigent shoppers are youthful black adult males.  I need to have to do all the things I can to bridge that divide.

And this sales opportunities to my previous piece of guidance:

Lesson #5:  A thick pores and skin helps prevent burn-out. 

I am even now functioning on this.  I am a prickly, skinny-skinned guy.  I like praise.  I hate to be criticized.