A Defense Attorney At Christmas

Christmas. From a defense attorney standpoint, I guess it has it's pros and cons.

On one hand, your clients certainly are not happy if they end up spending Christmas in jail. Even a short sentence feels much tougher if it means Christmas in jail.

And, of course, I know what the D.A.'s (and some judges') response to that is: If you don't want to spend Christmas in jail, don't commit a crime right before Christmas. As if it was that easy.

But, unfortuantely, I find that sometimes it's Christmas that spurs these crimes or these arrests. Single mothers who (barely) make ends meet all year round, decide that they'd rather risk being arrested for shoplifting than have their kids wake up Christmas morning to a tree without presents. Christmas stress can lead a recovering addict to use again. And Christmas stress can bring about a domestic violence situation in an otherwise civil relationship.

This week, I had one such domestic violence case. My client, the boyfriend/father of the children, and his girlfriend/mother of the children, had been arguing for some time, and the argument finally came to a head this week when she decided to kick him out of the house. He didn't respond well, and was arrested. I called the complainant to hear her story and to find out whether or not she wanted my client back at home. (Being able to say "I spoke to the complainant, and she wants him home" can be a huge point in getting a client RORed.)

Sometimes complainants just need a day to cool off and then want their significant other home. They regret calling the police or think it all got blown out of proportion. I was hoping to hear something like that from this significant other.

"I do not want him home. I hope they keep him in jail for a long time." Ok, that doesn't help. Maybe I should try the Christmas angle?

"He will probably spend Christmas in jail. Don't you want him home with the children for Christmas? Don't you think the children want him home?"

"No! Christmas is the reason I threw him out. I've been telling him to get a job all year, and he didn't do anything. Now we don't have money for Christmas and he's still not doing anything. That's why I threw him out in the first place. Now I can get a new man who has a job and can buy Christmas presents."

Hmmm... good point, I guess. And, just as an aside, that's always a good way to make room for a new man in your life - get your current man arrested.

Fortunately, though, sometimes the Christmas angle can sometimes work with judges and DAs. Sometimes a judge will offer a much better sentence that your client would see at any other time of the year, simply because the judge is trying to make sure your client will be out by Christmas.

Call it the Christmas spirit, I guess.

And, sometimes, you get lucky and the DA is just too busy worrying about his own holiday vacation that your client's case falls to the bottom of his list, which leads to a dismissal for failure to prosecute.

And that can be a Christmas miracle.


  1. Ah yes the "joys" of Christmas. Hope for some busy prosecutors.

  2. Dismissals were always joyful!

  3. Blonde,
    I understand that your job is to get your client out of jail, but there are limits to zealous advocacy. Trying to persuade a battered woman that her husband should be home with her is a mistake. Eventually, he'll beat her severely, or kill her.

    If she's lying about the beating, your client shouldn't be home (for his own protection). If she's telling the truth, your client shouldn't be home (for her protection). I think you should find some other way to get your domestic battery clients released.

  4. I'm sorry, carpundit, but I really disagree with most of what you have to say.

    First, I agree that there are limits to zealous advocacy. They are laid out in the rules of professional conduct and in the caselaw. But it is crazy to think that zealous advocacy should keep me from speaking to a complainant, even in a DV case.

    You probably can not imagine the number of times I've called a DV complainant and she's told me "Nothing happened," or "A neighbor heard us arguing and called the police but he never touched me," and even, "I told the police that nothing happened, but they told me that I had to sign the complaint or I'd go to jail." My city has a policy that someone must be arrested when there's a DV complaint. Even if both parties are standing there saying "Nothing happened." Now, maybe the complainant is lying to me or maybe she's lying to the police. I will never know. But part of zealous advocacy is following up to see if there's even that possibility of doubt there.

    Finally, I very rarely have to persuade women to take their men back. In fact, I very often have to persuade my clients not to go back to their women, either because there's an order of protection in effect or because the woman continues to pose trouble. Even in these cases, my clients often reunite with the complainant (and sometimes even go so far as to come to court with the complainant - a bad idea).

    Our adversarial system dictates that I fight hard for my client, the DA fight hard on behalf of the complainant or the police, and the court or the jury decides where the truth lies. We just wouldn't find justice if I stepped back and said, "Eh, all of the complainants and police are telling the truth, I shouldn't meddle."

  5. Carpundit, I think you are missing the point of the post. Blonde Justice has an obligation to contact the complainant to determine the validity of the complaint. If this person realizes that they made a mistake, then it's not a valid complaint, and why should her client stay in jail?
    Police officers should do the same thing. Investigate prior to arrest, without making assumptions.

  6. Merry Christmas Blonde Justice. I've been reading your blog for quite a while now and it is great. Hope you are having happy holidays.

  7. Maybe I did miss the point, but maybe not. Zealous advocacy certainly includes contacting the complainant to verify the truth of the complaint. It includes neighbor interviews, and obtaining police reports, and talking to the victim/complainant.

    It does NOT include trying to persuade a complainant to change her story so her man can be home for Christmas, which is what I thought the original post was about. Upon review of it, I still think that's what it says.

    Sure, there are some lying complainants. And, yes, the police may err on the side of caution. But most of the time, he really did hit her and he shouldn't be home for Christmas.

  8. Carpundit, I still think you're having a problem with the details. For example, you write, "[Zealous advocacy] does NOT include trying to persuade a complainant to change her story so her man can be home for Christmas, which is what I thought the original post was about. Upon review of it, I still think that's what it says."

    However, I don't see how you can read my post and think that I called anyone and asked them to "change" their story. Asking someone if they want to continue to live with someone is different than asking them to change their story and say that someone didn't hit them. See? Two different things. One is "Do you want him to continue to live with you?" (As opposed to staying in jail, or going to a shelter, or going to a friend's house). The other is "Did he really hit you?" You seem to think that they are the same question but they are two different things. Any person can say "Yes he hit me, but I want him to come home to me." I can't explain a woman's reason for saying that, but it certainly does happen.

    Second, I don't "persuade" anyone to change their story. I ask "What happened?" I can save the leading questions for trial. Before trial, I just want to hear all the possibilities that are out there. And if one of those possibilities is that a complainant does change her story, that's fine with me too. Just because two stories are different, it doesn't mean that the second one is a lie. Sometimes a person feels bad that she called the police and told a lie in the heat of an argument, and later decides she should come clean about it. And it certainly doesn't mean that a judge or jury should rely only on the first story and never hear the second story.

    Think about this. If a client was arrested, for, let's say, shoplifting. And the client told me, "No, I didn't steal it. Go to that store and ask the red-haired cashier. She'll remember I paid for it and we had a conversation about the name of the company written on my shirt. She said her father worked there too." Imagine that I responded, "No, I better not. I don't think it's right to ask people to change their story." That would clearly be ineffective assistance of counsel and malpractice.

    But that's the very same thing that you think should happen in a d.v. case where the complainant is the only witness. The standard of proof isn't any different, but it seems to me that you think that d.v. defendants are less entitled to a thorough investigation or the presumption of innocence. I'm sorry, but I just don't see it that way. And neither does the law.

  9. Blonde,

    There's much I want to say in response to your last comment, but this is getting a bit long, I suspect, to hold anyone's interest but mine (maybe yours). So I'll try an holistic approach.

    It was unclear to me that your original post was only about the circumstances of one particular dv case. I thought you were writing more generally about dv cases, and I thought you gave short shrift to the perspective of the battered victim.

    That said, maybe I'll hit just a few particulars (I can't get the lawyer in me to shut up, as my wife would attest):

    1. The shoplifting analogy doesn't work. If you started pressuring the cashier about her desire to have the accused thief continue shopping at her store, and if there were some real connection between the cashier's action and the cashier's fate, it might work. Else not.

    2. You wonder how I thought you asked anyone to change her story, yet in your shoplifting scenario you say it would be ineffective assistance NOT to ask someone to change her story.

    3. I do understand that pesky presumption of innocence thing and even the whole investigation idea. Even in dv cases.

    Listen, I'm not trying to call your whole ethos into question here and I apologize if that's what it sounds like. There are certainly lines to be drawn around these things. We may just put them in different places. Not surprising, given my career(s) over the years.

    Just remember: your client might be innocent of the crime they arrested him for, but he's guilty of something, and he belongs in jail. ; )