Low Point

I had the low point of my little career today.

The thing is, when you're a public defender, you get used to that same old question... "How can you defend someone when you know they're guilty?"

And I usually give the quick and witty response of, "It's easier than when you know they're innocent."

And, I guess because it is quick and witty, I sometimes worry that the listener hears it and just thinks I'm not answering their question. But I am.

Because I do think of it that way. I have clients who easily admit their guilt to me. They'll just say, "Miss Justice, it went down exactly like the cops say it did. What can you get me?" And I have clients who never admit their guilt to me, but I know that they're guilty.

"I didn't hit her. We just be having an argument."
"An argument? Her face is one big bruise."
"She walked into a doorknob."

Fine, they don't have to admit it to me, I know what the deal is. And I still fight hard for my clients, whether I think they did it or not. But, I guess what I am saying is, in the end, I'm not going to lose a ton of sleep when this "doorknob" client ends up doing some anger management program.

Maybe that sounds bad. But compare it to when I really believe my client is innocent.

And sometimes I'm wrong about that too. I had this domestic violence case once. It was a weird one, because my client was the wife, who had been arrested and accused of punching her husband.

"No," "No," "No," she swore to me, she didn't lay a finger on him. And I believed her. Because her husband had a motive to lie - they were divorcing and he was fighting to get custody of the kids. And, it was just weird - why would he even call the police after being punched unless he had an ulterior motive? Suck it up, take the girly punch like a man. Anyway, she fought the case, came to court a million times, and swore all along that she never laid a finger on him.

After months of this, she agreed to let her husband have the kids (she was "too busy anyway") and he must have decided not to cooperate with the prosecution. (Which, to me, just affirmed the fact that he had lied to get the kids, and, therefore, didn't bother to continue with the lie once he got the kids.) Finally, the court dismissed the case for lack of timely prosecution.

On the same day that the case was dismissed, I returned to my office and I had an envelope from the prosecutor on the case. He must have sent it a couple of days before the case was dismissed. It was my client's full and complete confession. Of how she just beat the crap out of her husband.

And I felt duped. And I doubted my ability to evaluate the worth of a case.

But that's ok. I guess it's sort of like the "Better to let one guilty man go free..." saying. Better to wrongly believe a client than to wrongly fail to believe a client's claim of innocence. I mean, look at those innocence project and DNA cases - maybe their original trial lawyers are out there somewhere saying, "Hmmm... maybe I should've believed him. Maybe I should have fought a little harder for him."

So I fight hard for all of my clients. And tend to believe them. But, the fact is, there will always be clients that I believe more than others. Whether it's because I relate to them in age (that domestic violence wife was pretty much my age), or because they're more personable, or because of their lack of a criminal record, or, for the most obvious reason of all, because their story is believable and supported by the facts.

Which brings us to two low points in my short (so far) career.

Twice in my career, I've had clients who I have felt, perhaps known, were innocent. In one case, about a year ago, I let the client make the decision - plead guilty and get out of jail (after a few weeks spent in jail), or stay in jail and fight it out. I really wanted him to fight it out. And, he wanted to go home.

I felt so crappy entering the plea. Which, at the time, was the low point of my career.

But it brings me to something I learned in my law school clinic. Our job, as public defenders, is less centered on guilt or innocence, plea or trial, and much more centered on our clients' priorities. And, rarely are our clients' priorities as straightforward as "Clear my name, prove my innocence, go to trial no matter what it takes" or "Admit my guilt, take my plea, no matter the consequences." Almost always there are other factors - criminal record, the sentence to be served, jobs to be had or lost, family members, immigration, and many many more.

Sometimes it's just routine. Like this post on Indefensible describes.

After the case last year, a senior attorney listened to my concern and then asked, "Is it possible that he pled guilty because he was guilty?" It's possible. I never know for sure that my client is innocent. I wasn't there. But, in the same position, even innocent, I'd probably do the same thing. I don't think pleading guilty always means you are guilty.

And, it happened again today. Lower than before, perhaps.

Today, my client, who I really like, and who I really believe is innocent, and who I think would have had a pretty good shot at trial, pled guilty. To get out of jail. And avoid the risk of prison after trial. I understand his reasoning. I'd probably do the same thing.

But, still, I felt really crappy entering that plea. I felt like I was betraying what I came here to do. What I went to law school for, and what I'm proud of. I felt like a bad stereotype of a public defender - although the plea absolutely wasn't at my insistence.

I just felt crappy about it.

I rambled a lot in this post. I think I'm trying to sort a lot of this out in my head. But, I think it goes back to the very beginning of this post. It's not just a quick comeback to avoid a discussion about defending "those" people. I am losing more sleep over the client that I know is innocent. They are the harder cases to deal with.

And I feel crappy about it. So, I've vented here, cleared my head a little bit. Now let's see if some ice cream and the Amazing Race can take care of the rest.


  1. I have had this happen, too, usually because someone can't afford bail and just want to get out, and if they exercise their right to trial, it will take at least another 6 months. Once it was because the client could not afford $500 bail!

    At least you even think about this & care. There are so many turn 'em & burn 'em p.d.'s out there

  2. Even as you debate which priorities you're serving as a PD, never doubt that you're the most important part of our criminal justice system. Never doubt that what you do every day has meaning, a career with real meaning. So during the low points you describe, it's all about managing your stress and caring for yourself. Ice cream is a good start, but to continue to serve, you need a plan for regular self-renewal.

    Do PDs have a support group, like Pleaders Anonymous or something?

    Thanks for the *great* post.

  3. You know, like A.H-P. said -- in a way, it's great that you feel crappy. It shows how committed you still are to your job and your clients. You should be proud of feeling crappy.

  4. I'm sure you did everything you could, and explained to your client the ramifications of his decision, forwards and backwards. But at the end of the day, it's his decision to make. I'm sorry he caved rather than fight, but maybe the next innocent one won't.

    As everyone else has said, we need people like you who do indeed care.

  5. The only worse feeling than having a client you believe is innocent plead to a crime they didn't do is to have a jury convict for a crime they didn't do. After a client loses that you believe is factually innocent and gets whacked with the "trial penalty" (where I practice normall 2-5 times the length of the plea offer) it becomes much, much easier to plead 'em out. At the end of the day, it isn't our call. Our job is never an easy one, which is why burnout and substance abuse are so common in it.

  6. I think whether or not to take a deal is 100% a client's call. I advise, (sometimes strongly, sometimes not) but it's his/her call.

    Sometimes it sucks, though, like when you know you'll win. A lot of the time the DA will make your guy an offer he/she can't refuse, and that's what they're doing - a cost/benefit analysis. Unfortunately, a lot of our clients have a factor in that analysis that they shouldn't have: "If I tee the case up, I have to sit in jail another 3 or 5 or 6 months or I can be free NOW." That's not justice, but that's what we've got to work with.

    Plea bargaining is a lot like politics is sometimes described; a bargaining back and forth for something both sides can live with. Neither side will get everything they want, but they won't lose out completely, either.
    Looking at my job this way was a really tough change. I came to this job after doing appellate defense - my guys had already lost at trial, and they had nothing to lose by going balls-to-the-wall. But when you have a DA who is inclined to use his/her discretion and work a deal, thinking all-or-nothing doesn't work as well. Clients loose more often than not that way.

    One of my favorite clients was one who took the deal rather than go to trial. We would have won. _He_ still thinks I did the right thing, at least.

  7. I know how you feel. First time I had a guy plead to what I knew he was not guilty of I was almost physically sick. His logic made sense, however, and he reminded me (rightly) that the choice was his.

    In the three years since I've had less than a handful go down this path. None of them were easier than the first. The saddest was the last. Guy has history of Breaking into businesses. DNA match on cigarette butt in a house break. He knows who fitted him up. He knows that he'd have to say it to have a chance on trial. He is in custody. He is dead meat if he opens his mouth. In legal jargon, it's a 'strength of case' argument. Doesn't make it sit any better, however.

  8. I have lots that I want to say on this topic, but I've got to go to court on a case I know we should win.

  9. I never get over the frustration of not being able to help my client. I know it is a triable or winnable case, the client has no resources to make bond and a history that makes a low or no-bond out of the question.
    I usually tell them that no one should plead guilty to a charge if they do not believe they are guilty, but they usually do anyway either to get out of jail or just to get it over with.

  10. This might sound counter-intuitive, but, as a prosecutor, I always felt that it was wrong to make absurdly low plea offers just because I felt I had a sucky case. If I had a sucky case I would either: (a) drop the case, or (b) offer only a plea offer within the range of plea offers I deemed appropriate to the offense, even if it meant I would be put to the test to try to prove a problematic case beyond a reasonable doubt. If I can't prove my case at trial, fine, but I don't think it serves justice in any way to make an offer so low the defendant can't refuse it even if he's innocent. I think that's just a cop out for prosecutors who don't want to make the hard decision to drop a case.

    And yes, definitely hang in there! Your role is crucial. I once had a victim ask me before trial why the system was letting the defendant make her jump through so many hoops when he was the one who committed the crime. My flippant response was, "Well, I guess we can just take him out back and shoot him."

  11. You're absolutely right. I wish prosecutors here had your approach.