The Attorney's Fault

Often when a warrant issues for a defendant for failure to appear, it is the attorney's fault; or so defendants are inclined to think. After all, it must be--"I would have been in court if you had told me I was suppose to be there." This is one refrain I hear. There is a notice for court appearances for the hearing impaired on the bottom of many court forms. Unfortunately this is for the hearing impaired, not the listening impaired. In my practice, the defendant will have heard the judge verbally tell him his next court date, I will send him a copy of the order setting the date and time, and will have my secretary call in advance of the date to remind the defendant to be in court at the designated time. If the defendant has changed residence and run out of minutes on his phone, two out of three methods of notification are ineffective which leaves the oral notice by the judge or attorney the day of his last court appearance. If, however, one forgets or wasn't paying attention, a fourth method of determining a court date would be to call the attorney or as a last resort, the clerk of court. In my latest experience of a warrant issuing for a client, he was notified of a pretrial and did call in explaining he was too sick to attend court that day. The matter was continued one week with a copy of the order being sent to the defendant. Trial was scheduled two days after the scheduled court date. Five attempts were made to contact the defendant by phone unavailingly. No return calls were made to the office. A call was made to a relative indicating a warrant had issued, and wouldn't you know it, but 20 minutes later the defendant is on the line claiming ignorance of any court date and explaining how it was my fault that a warrant was issued. If the general public had any idea of how difficult it can be to represent such people, we might actually be paid a decent rate for doing what we do. I especially love it when, in open court, they blame their attorney for not appearing--for not telling them when they were suppose to appear. The judge's response goes something like this: "Your attorney is not the one that will go to jail when you do not appear. It is up to you to know when you are to appear in court, not your attorney." I find this response very gratifying.

Zealous Representation

An attorney has both rules of professional conduct and ethical mandates which require among other things a zealous representation of one's clients. In my case, my clients are criminal defendants. The majority of my clients have one or more of the following characteristics: unemployed, unemployable, below average IQ, repeat offenders, regular users of prescription, illegal, or alcoholic substances, no drive's license, indigent, producer of multiple offspring by multiple partners, mentally ill, and extremely ignorant. When representing defendants with one or more of these characteristics I sometimes wonder whether I am an attorney or social worker or are they one and the same. The question occurs whether a zealous representation is equivalent to what is in their best interest. In an age of criminal overkill many if not most of my clients will be in and out of jail throughout their lives. The clients of which I speak are unable to function in a manner that is satisfactory to the powers that be. The effort to ameliorate this is unrelenting. We have established counseling, therapy, half-way houses, probation, parole all in an effort to morph criminal defendants into productive citizens. This, of course, is absurd. Its not going to happen which, in a round-about way, brings me back to the title of this piece--zealous representation. Zealous representation as promulgated by our ethical rules can only make sense if you care about your client and attempt to do what is the client's best interest. As an example, I represent numerous people who are in jail on probation violations. Usually these folk are nuisances, they are incapable of doing what they are told, and they simply can't cope. Many an attorney has agreed to a plea offer of probation for his client where the client has no more of a chance of successfully completing probation than becoming an astronaut. Probation officers don't know what to do with them and so they ask the court to impose the original sentence and send the defendant back to jail or prison. The consequence of this is that the defendant has had a lengthy and bumpy relationship with his probation officer and then goes to jail or prison anyway. My view is: let's just do the time now and get it over with. Sooner or later the defendant will be doing the time and in the meanwhile he's got someone telling him where to live, to get a job, to become a teetotaler, to transform himself into a citizen just like the probation officer purports to be. It ain't going to happen. In the example that I have illustrated, the defendant will want probation because then he can get it over with, "get his life back on track", and most importantly, be released from jail. Jail may actually be good for some defendants, but not in the sense that most of us think of it. While in jail the defendant is dried out, he has decent food to eat, has a bed to sleep in, and can visit with his friends or make new acquaintances who he will benefit from in the future. All positives. In extreme cases, the only thing keeping some people alive is a periodic visit to lockup. In the end, if you care about your clients, you sometimes must do what is best for them even if they reject the notion. Whether this is considered zealous representation remains, in my mind, undecided.

To Bond or Not to Bond

Do you ever wish that your client does not make bond--that he stays put, in jail until his case is finished? This is an occasional wish of mine. There are two reasons for this: first, the defendant vanishes without a mailing address or a phone; and second, he is rearrested and put back into jail before the first charge is fully addressed. In the first instance, you or your staff can spend a great deal of time trying to find a defendant. Some verge on the homeless, some move from one acquaintance's residence to another, or they find a new fiancee with whom to share bed and board. The thought of confiding in his attorney on a method of communication has fled his consciousness. He is now living for the moment. Normally your client will immediately obtain a cell phone with some prepaid minutes but the minutes are too precious to be calling legal counsel about the next court date. I'm willing to have a court date continued once and possibly twice but by the third no show my attitude is if he is in jail, I will know where to find him and we might get this thing rapped up. Practicing as a criminal defense attorney has an element of baby sitting to it One has to expect that, but there are limits. The second issue is whether your client can maintain long enough to dispose of the current charges before he gathers more. I have a client now facing two felonies but with a plea offer he will have probation granted more likely than not. The deal with the county attorney's office is for probation. However, he made bond, did well for a few months, and is now back in jail on new charges. The new charges are not severe enough to put him in prison, but the fact that he has them means the deal with the county attorney's office on the previous charges is off the table and to prison he will go. Your efforts, as this fellow's attorney, are wasted. The conversations with the prosecutor where you suggested the previous criminal acts were simply a misunderstanding and your client now has his act together are conversations you wish you never had since he probably won't believe you next time either. Your creditability has been damaged and the prosecutor reminds himself that he knows your client better than you do. And there you have it.

Warren County

I drove to Indianola this morning. The Warren County District Court was not busy. We had a bond review scheduled which was held pretty much on time. My experience with Warren County has been rather spotty when it comes to holding to schedule. The irony is that it takes the jail a rather long time to have an inmate produced in court when the jail remains on the third floor of the courthouse with the courtroom on the second floor. The fact that the Warren County courthouse elevator must be the slowest elevator on the planet can not be the only factor in the difficulty the jail has in producing inmates for hearings. But regardless of my historical experience, we did not wait long this morning. Judge Lloyd was presiding and after a brief presentation and plea, reduced the bond, and additionally allowed the defendant to post 10% with the Clerk of Court. Posting 10% with the Clerk of Court is a fine thing. It allows defendants or the friends or relatives of defendants, who normally have little money, to have the bond posted returned to them when the case is over. Bondsmen are upset of course because it cuts into their livelihood. Just goes to show that no matter what a judge does, someone is pissed. The county attorney objected to a reduction of bond as is usually the case. Bond is a tool of the prosecution. Any defense attorney who has practiced any time will tell you that a percentage of defendants will plead guilty to about anything as long as probation is involved and they are released from jail. Whether they did the crime they are charged with is irrelevant. This is called the administration of justice. Justice is being administered to by the State. Cases must be moved along or the docket gets jammed up and defendants escape the punishment they so much deserve. It really doesn't matter if they did it or not since they probably have done other crimes for which they have not been charged and will do more crimes when they are released. This reasoning allows prosecutors to justify this method of criminal justice administration. Criminal justice administration has become a big business--a little like business administration. Very seldom will you find a two-year college not offering two year degrees in criminal justice. Most police officers now declare that as a major. Four-year colleges also offer degrees in criminal justice and a few even offer master degrees in the area. Having been a criminal defense attorney for thirty years I have yet to fully understand what the administration of criminal justice means. It wouldn't surprise me that they are yet attempting to understand why people commit crimes. The vast majority of crimes are simply because people won't do what they are told. The examples of this are almost endless from being told you can't drive more than 65 m.p.h. to smacking your girlfriend up side the head or smoking a little weed. If people would just do what they are told, there would be no crime. This is not difficult to understand.

A Guilty Plea

We have all had clients who insist on pleading guilty. Unfortunately the defendant must make a factual basis for the plea. On occasion that is difficult. In the last instance of this I have experienced, the charge was stealing a vehicle which is a class D felony carrying a sentence of not more than five years. The defendant and his friends, though, only wanted to get from one place to another, not steal the vehicle. Unauthorized use of a motor vehicle is not a felony but an aggravated misdemeanor carrying a sentence of two years. The agreement was that the defendant plead to a felony and be sentenced to the five year term. The choice is to allow your client to plead to something he did not do or find some other charge to which he can plead. Judges don't much care for defendants pleading guilty to something they didn't do or to go through the most of the guilty plea colloquy and then reject the plea because no factual basis can be made. In other words, a defendant must be able to tell the judge that he committed the crime for which he is charged. Lying is not an option. An attorney can not allow a client to tell him one thing and then get in front of the judge and tell the judge something different. I did have a client tell me one time that he would just lie: "I'm a criminal and criminals lie". That may be the case but contrary to public perception, attorneys are not criminals and do not lie or they do not remain attorneys for long. But back to the point, it appeared to me that since the defendant did take the car, without permission, and contrary to the wishes of the owner, and he had control of it, that he could make a factual basis for misappropriation of property. It is a close call, but since under Iowa law there are now innumerable methods by which one can be accused of theft, it can work. The vehicle may not have been stolen, but it certainly was misappropriated. The distinction between "stolen" and "misappropriated" is murky, but apparently the legislature seems to think there is enough of a difference to call it by a different name. The car was certainly misappropriated and the defendant is now safely incarcerated in the Iowa prison system where he gave every indication of wanting to be.

Luck

Don't ever say that luck isn't a part of it, because it is. I had a sentencing scheduled for this morning. The defendant had pled to two felonies and had warrants out for him from two different states, several of which were for probation violations. In our entire district there is but one judge that just might consider probation. I had informed my client that the chances were slim to none that he would get probation and would be sentenced to five years in prison. Arriving at the courthouse, the regularly scheduled judge was gone and the only judge in our district who might even consider probation for the defendant was our sitting judge. And don't you just know it, the defendant received a suspended sentence. You tell your client in such cases just how miraculous it is they dodged the bullet. You really can't take credit for it. It just happens. Sometimes you just get lucky--nothing more can be said about it. The attorney doesn't have to tell the defendant that his legal skills had little to do with it; that it was just luck. The defendant will not be listening nor understanding and knowing only that he is not going to prison today and will think you are a really good attorney and hopefully tell all his friends just that. So there you have it for today's day in court.

The Testifying Defendant

One can say it is either interesting or depressing when the defendant says something while on the stand that is utterly certain to ensure the judge will find him guilty. Every attorney who has ever tried a case knows that it is fortunate, if not miraculous, to have a client who will not say something while testifying that is contrary to what he should have said. The prosecution, the cops, the state's witnesses have a story to tell--a story of the defendant's heinous action, or outrageous conduct, or criminal act for which he is standing before the court or jury to be judged. Your job, as a criminal defense attorney, is to tell a different story--one of innocent misunderstanding. This, you try the best you know how, to inculcate into your client, the defendant. It is not the story itself, but how you tell it that matters. Rather than saying "He was in my face so I punched him", say "I thought he was going to hit me, so I hit him first." The first statement could very well convict you of an assault, but the second statement could very well describe self-defense; ergo, an acquittal. A second example of deflated expectation occurs when your client, the defendant, has related the facts of the situation to you on several different occasions and you as the trial attorney have a clear understanding of what the testimony will be and have developed your strategy for your client's defense from what your client has related to you. But then, on the stand, testifies contrary to what he has told you or has omitted to tell you a significant detail that most certainly will result in a conviction. "Oh, I forgot to tell you that he said he didn't want to fight." That sort of thing. On these occasions, you just remind yourself that at least you will get paid since you have a retainer and your client will blame you for being found guilty and tell his friends that you are a lousy lawyer and never go to him for help. Not to brag, but I think that trial attorneys have to be a different sort of folk. If you can't expect the unexpected at trial and be able to assimilate it and use it the best you can, don't try cases. If ungrateful clients leave you depressed and anxious, don't tell your clients what they don't want to hear. If you take losing personally, don't involve yourself with disputes. For every trial there is a winner and a loser. Losing is inevitable. If you as an attorney need, for your own satisfaction, a win in every case, stay out of the courtroom. If you are a person who believes those you help should be grateful, don't practice law--find another line of work.