Adjusting. Part One

When I was a public defender, I was always a little torn about clients who wanted to hire a private lawyer.

A client would ask me, "Should I get a private lawyer?" or, worse, of course, "Should I get a 'real lawyer'?"

Sometimes I felt like, "Yeah, if you can afford one, you should. Leave the public defenders for those who really need them." You know, like people who have money but scam to get on food stamps.

Other times, I had clients that were really struggling to make ends meet, but I could tell they were wondering if giving up anything and everything they ever had might be their only way out of their impossible case.

I would say to them, "Look, do what you have to do. But so long as you're my client, I'm going to work as hard as I can on your case. Here's what I'm going to do..." and I would spell out my plans for their defense.

Some people have it in their heads that "you get what you pay for" and that a private attorney, therefore, must be better than a public defender.

But I always thought, it's like anything else: There are good public defenders and bad public defenders, just like there are good private attorneys and bad private attorneys.

At one point, I had this one pain-in-the-ass client. I remember when he announced he was thinking about getting a "real lawyer." I tried to keep not break out in a huge smile as I said, "You know, you're right, I think a 'real lawyer' could really be helpful in this case..."

One day I got a call at random from a client who wanted to let me know that his family had hired a private attorney for him. "No offense," he said. (None taken.) "Besides, this lady, the lawyer, she told me that she has about 100 cases as a time and that public defenders have like 300 or 400 cases at a time, and she'll be able to spend a lot more time on my case. Is that true?"

What could I do? Tell him that his newly retained lawyer had already lied to him? The truth was, my case load as a public defender was also around 100. (Sometimes I'd get lucky and hit a 80-90 lull, sometimes I'd be busier and hit a 110-120 overwhelming period.) And I was kind of surprised to learn that a private attorney might have that same caseload.

But I told the client, "You'll be fine," and assured him that I would send his file over to his new lawyer.

The truth, I see now, is that some private attorneys just can't be as busy as a public defender - they just don't have that many potential new clients calling their office. And I think that other private attorneys probably have a hard time turning clients away - you don't know that you're always going to be able to pay the bills, you don't know when you're going to hit a slow time, so you'd better take the money when it's walking in your door.

But as a public defender I had a limited ability to cap my caseload. I could go to my supervisors and say "I'm totally swamped," and if I was lucky, they might find a way to help me out of being swamped, or my colleagues might pitch in to help me a little bit. But when each client in the door is paying the bills, you don't want to turn them away, even if you are swamped, so it's pretty tough to cap your caseload.

I also had a limited ability to cap the work I did on each case. As a public defender, I could say to a client, in a very polite way, "I understand that you want to have another conversation about the same thing we discussed yesterday and the day before, but I just do not have the time to have that same conversation again today. So I'm going to ask that we not do this today, and maybe we can talk again in a few days or you can call me back if something new happens that you need to talk about."

I could also say, to a public defender client, "I hear you telling me that we should file an entrapment motion. But your baby momma cannot possibly entrap you into punching her in the face. I'm not going to file the motion. I'm sorry that you're disappointed."

As a private attorney, my clients are much more entitled to my time. After all, they paid for it. That doesn't mean I can't ease my way out of a repeat discussion or a frivolous motion, but it does take a little more finesse.

I guess what I've learned so far is that being a public defender is a volume business. Being a private attorney can also be a volume business, but the only difference is that your clients are never supposed to feel like they're on the other end of a volume business.

What I'm Reading...

I rarely read anymore. Ever since I found this thing called the internet. And Tivo. I come home from work late, I veg for an hour or two, I eat a little dinner, and I go to bed. And I've got a few other hobbies going on that I don't blog about. So, I'm kind of too busy to read. I haven't even gotten around to reading the last Harry Potter book, or a few other books that I've picked up since then.

Which is why it's so remarkable that I'm totally hooked on this book, Death by Rodrigo by Ron Liebman that Simon & Schuster sent to me. (A perk of blogging.)

I'll tell you more about it later, I'll probably be able to finish it this weekend, but right now I've got my nose in the book.

I Can't Say I Didn't Do It

Alford Pleas, No Contest Pleas, Nolo Contendere... they all mean the same thing. "I can't say I didn't do it, I can't say I did it, but I'm ready to take the punishment."

Frankly, the judges I practice in front of just don't allow Alford pleas or No Contest pleas. Judges really want to hear a client say "I did it." And, again and again, judges say, "If you can't tell me what you did, you should just go to trial."

I can think of only one time when a judge not only allowed me to enter an Alford plea, he encouraged it. It was in night court. And my client was a little old woman, who was completely deaf. As in old-people-deaf, not knows-sign-language-deaf. I can't remember now what the little old lady was accused of, but I think everyone in the courtroom was just appalled that she had been kept in lockup overnight.

I don't remember a whole lot about the case, I think maybe the prosecutor was offering some kind of non-criminal disposition (no criminal record) with time served. But I remember explaining to the old lady again and again that if she could say "she did it" she could just go home. Again and again, the old lady would say, "Ok, I'll do it," and then, I'd ask her, shouting, "Mrs. Old Lady, did you do what they say you did?" and she was said, "No sweetie." And I would try again to explain it to her again, but I would have to shout in the courtroom, "Remember what I said, you could go home?" And she would say, "Oh, yes, that's right, okay," and then we go through the whole thing again.

Finally, the judge, who was pretty cool, shouted, "I'll allow an Alford Plea. Mrs. Old Lady, would you like to go home?" The old lady said yes.

"Alright, that's sufficient," the judge said.

Overall, though, I would say that judges want to hear that guilty plea. Why? Maybe because it makes it harder for that plea to come back on an appeal. A defendant with pleaders remorse will have a harder time saying "I didn't know what I was doing" if they already admitted their criminal act.

And, I have to say, I think there is some truth to Manitor's comment:

The system demands admitting guilt. That's why it has evolved into the efficient submission-extraction process it is today.

What really matters is not punishing crime; what matters is repeating the ritual of having individuals submit their autonomous will to the authority of the state by admitting guilt. Honesty and truth have nothing to do with it.


What about everyone else? Do your judges allow Alford or N.C. pleas? It seems that you hear about them sometimes on television with regard to celebrity cases, so I wonder if that's because they're popular elsewhere or they're popular in celebrity cases.

We Should Do Something

I had a particularly frustrating time in court today. I walked out, cursing under my breath, wishing I could direct those words at my client, who I was hating so much. Nothing particularly bad had happened in court, but I had reached my frustration tolerance. And then I skinned my finger.

I got in my car, and opened the windows to glorious weather. A block away from the courthouse, I sat at a traffic light, and, I don't know what came over me, and I knew I should be happy, I was done with court and the day was beautiful, but I was sucking on my bleeding knuckle, and I just started to cry. You know, that one little second, where your face crinkles up and you just know you're not going to be able to help but to let it all out?

Three high school girls were walking on the sidewalk, next to my car. I didn't really see them there, but I heard one of the girls say, "Hey, look, that lady in that car is crying. We should do something." And the other one shouted one "Hi, Lady! Hi!" The two of them, then, were shouting, "Hi!"

I had my windows down, and I was less than ten feet away from them. So, I had to turn and smile and say hi. Kind of half-laughing, and feeling so awkward and embarrassed about these kids who were just looking at me through my window.

Then the third girl said "You stupid fucks, you know we're not supposed to be talking to fucking strangers. Idiots."

The light turned green, and I drove away. And I heard the girls behind me screaming, "Bye Lady! Bye!"

And I heard the third girl shout, "Shut up!"

I don't know. But it cheered me up. And I always feel like it's these little thirty-second interactions sometimes that can make such a big difference in a day.

How Many Guilty People Are Guilty?

LawSchoolBlogger asked, in a comment:

I wonder what percent of people who say they're guilty really aren't...What's your guess?


You know, it happens. False confessions exist, as do false guilty pleas. Some of the people who have been exonerated by DNA evidence actually made confessions when they were arrested, for a variety of reasons, perhaps it was coerced or they were naive or it was a My Cousin Vinny -style "I killed the clerk?" confession.

As far as guilty pleas, I wouldn't say that it happens a lot, but I know that it happens. I see it particularly where defendants are offered time served if they plead guilty or, in the alternative, they will be held on bail if they want to wait for a trial. And that can takes months or longer.

I also see it in the context of illegal immigrants - pleading guilty and walking out of the courtroom immediately means escaping the long arm of ICE, waiting a few months in the jail might mean having your status questioned. In the end, a criminal records makes the non-citizen more deportable, but someone who is here is pretty much deportable anyway, so why make it easier by waiting for the ICE agent to show up?

And it's not always about jail time. I had a case just last week, where my client told me that he "didn't do it," and came to court every month for months waiting for his trial. And I knew, no matter how it shook out, that we had a good shot at trial. And, worse case scenario, he was probably facing probation and some fines.

Recently, though, my client lost his job. Last week, he got hired for a new job. He told them that he could start the day after we had court. So, he asked me, "Can you just work out the best possible plea for me today? I won't be able to keep taking off work at my new job." I explained to him that he had consistently told me he was innocent, and that I thought we had a good shot at winning at trial, and that to plead guilty he'd have to "admit his guilt" to the judge.

And he told me, "I just can't afford to lose this job. I just need to get this over with." It was his fourth or fifth day spent in court.

I went to the prosecutor to work out a plea. And I said to him, "Look, I don't think my guy did it. But he wants to get this over with." I laid out the evidence I thought the prosecutor would have at trial, I laid out the evidence I would have, some of which I had been saving for trial. I think the prosecutor recognized that this was working out well, and offered my client just a fine, no time on probation.

So, he pleded guilty, "admitted" his guilt.

It's kind of a weird thing, because of course I'm never allowed to lie to the court... but this is kind of a lie, right? I stood next to my client and let him lie and say he did it, after he told me twenty times he didn't do (and had kind of proven it to me).

I guess the cynic would say, "For all you know, he could have been lying when he said he didn't do it, and finally telling the truth when he was pleading guilty." But, really, then why doesn't the reverse work? If my client had told me twenty times he did it, and then I led him through testimony in which he finally claimed that he didn't do it, I would be suborning perjury.

But guilty pleas are what makes our judicial system efficient. So, I guess a little lying is allowed for that purpose only.

The other thing is, people who "did it," in that they did the actions described by the police or other witness, but who probably aren't legally guilty because they didn't have the requisite intent or maybe wouldn't be found guilty at trial because of other facts of the case.

For example, if Senator Larry Craig said "I did what they said I did - I tapped my toe and put my hand under the stall... but I only did it because I was out of toilet paper." Sure, if this was a video camera in the bathroom, he did what they say he did, but would he have a shot at that defense at trial? I think so.

To answer your question, it's hard to put a number on it. Some clients don't tell me their whole story, some clients don't tell me the truth. If I had to guess, maybe I would say somewhere around 10-15% of the people who are pleading guilty are not, in fact guilty.

But that's just a guess. Anyone else want to take a stab at that?

I Did It, I'm Sorry, I Didn't Do It

So, what do we learn from this Senator Larry Craig thing?

Once you plead guilty, it is much harder to say, "I didn't do it." The way the average American looks at this now is, "If you didn't do it, you wouldn't have pleaded guilty. You would've wanted to scream the injustice from the rooftops 'I didn't do it! I've been framed!'" But, instead, once you plead guilty, you're kind of stuck with it.

(Similarly, if you didn't do anything wrong, why would you resign? Why not fight it out and try to prove your innocence? Why bother to apologize but then follow it up with "I cannot control what people choose to believe?" )

This happens all the time in criminal courts. Someone's criminal record is questioned, and they respond, "I didn't do it, I just pleaded guilty to..." either avoid a hassle, or save money, or for any other reason. But this just doesn't fly, because the next logical question is, "Ok, then you lied to a judge, under oath, when you said you did it?"

But from a criminal defense perspective, the point is, it is very hard to overcome a guilty plea, or to overcome a criminal record.

Think long and hard before pleading guilty (especially to things you are not guilty of), it could be something that scars your record (and people's opinion of you) for a long time.