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March 18, 2005

Defender Dilemmas: LSIC Interview

Ok, so here's the situation: You're a public defender and Petey is your client. He's charged with beating up his girlfriend and he comes to you and he says, “Hey man, I did it. She had it coming, man. But this is a rearrest parole violation and if I get convicted of this I'm going down for a long time so you gotta get me off, man. Ok?” What do you do? It gets better. Petey quickly changes his story. “I didn't do it, man.” But you just said you did, Petey. “Well, um, she started it.” Really? “Yeah, and my cousin was there and he saw the whole thing. Ask him, he'll tell you—she started it, she hit me first.” So will your cousin testify to that? “Sure, but here's what you do. When you go talk to him, don't ask him what happened, just tell him what I said—that he saw the whole thing and she started it. He'll agree, because he was there.” What do you do? Or here's another good one: Your client (not Petey this time, let's call him Jake) comes to you on a misdemeanor and you ask him about his record and he says he's got a rap sheet a mile long and starts listing off offense after offense for which he's been convicted and done time in the relatively recent past. It sounds pretty bad. But then you get discovery from the prosecutor and Jake's rap sheet is blank—it shows none of what Jake mentioned. What do you do? I had an interview with DC Law Students In Court (LSIC) yesterday and these were the kinds of things we talked about for half an hour. It was awesome! I don't know if I had all the “right” answers (or if there are “right” answers to questions like these), but it was great talking to two attorneys who face choices like this all the time and have experience weighing the pros and cons, advising clients, cutting through the BS when necessary, interviewing possible witnesses, gathering other evidence, etc. It was like an adrenaline injection and a breath of fresh air. These guys didn't assume I was just biding my time until I could get a firm job or looking for a credential to get me ahead somewhere else—they didn't care about any of that. What they cared about is how I would handle hostile client situations, tricky fact patterns, and tough choices. It also made me more impatient than ever to get back to work at the PD's office this summer. I can't wait until May! Is this what I want to do? Um, yeah. LSIC will announce decisions about who made it into the clinic next Wednesday. You can bet I'll be waiting by the phone.... About LSIC, see also:
  • GW's description of the clinic (scroll to the bottom).
  • A recent WaPo story about a $2 million award the clinic received thanks to past litigation against Comcast, including more information about what the clinic is and what it does.
  • The DC Bar's coverage of the same thing.

Posted March 18, 2005 08:09 AM | 2L

Sounds amazing! I hope you get in.

So how did you answer these questions? I'm especially curious about the second one -- I could not think of a single thing.

Posted by: CM at March 18, 2005 11:52 AM

Don't you just love the real world scenarios compared to the BS we are given on exams?? From what little I know of PR, lawyers' responsibility is primarily to their client, right? So you do what you have to to svae their sorry asses? I know there's the whole ethical side of it (not personal, but required by law), but I would think your client comes first... THIS is why I'd never survive as a criminal litigator!

Posted by: Res_Ipsa_Loquitur at March 18, 2005 12:11 PM

Sounds like a good-natured, collegial discussion (even with the hypos!). Good luck with that.

One possible answer to #2 (but not necessarily THE "right answer"): "Okay, I'll have my investigator talk with your cousin, but I won't have my investigator start by telling him what you just told me. Either way, I can't put you on the the witness stand. Let me try to explain why..."

What did you come up with?

Posted by: Skelly at March 18, 2005 12:29 PM

I agree with Skelly. Under either circumstance, I don't think I would go to trial, or at the very least put my client on the stand. That I don't think you can do. Talk to the girlfriend. Talk to the cousin. You cannot aid a client in perjury. Also, whoever talks to the cousin cannot "tell him" what happened. There has to be questioning. If his story doesn't help, then well you're cooked. Negotiate as well as you can to get a favorable deal.

I hate these damn hypos.

Posted by: Three Generations at March 18, 2005 12:51 PM

Sounds very cool! Are there LSIC groups in other cities?

Posted by: Jennifer at March 18, 2005 01:36 PM

yeah, i'd say for #1 - you have to zealously advocate for your client, no matter what kind of a scumbag he is. everyone deserves a fair trial, so you just have to suck it up and defend him. because he has a right to that, and if you don't do it, then someone else will that's not as good, and then justice is certainly not served.

#2 - talk to the cousin, but don't tell him what Petey said. if his story is different (and/or he's too scared of Petey to say anything) then, shucks, too bad, Petey's going away. but at least you tried. and you don't have to feel bad about it.

#3 - a lot of PDs have their own investigators. see what they can find. ask Jake why it's not showing up.

at some point, you'll have to do what you can and then move on. your other 200 cases await. :)

Posted by: monica at March 19, 2005 02:24 AM

Ha! Thanks everyone for the excellent thoughts on possible ways to deal w/these tough situations. I'm usually not a fan of hypos, but like Res Ipsa said, they're much better when they're more "real" like this. Working in a PD's office last summer we never had anything that I recall exactly like this, but not far off. Here's sort of what I said, as best I can recall:

#1: Yeah, this is my client so my response is going to be: So what should we tell the judge? If he's got nothing, and investigation turns up nothing, the best you could probably do is argue for leniency somehow.

#2: So Petey has offered a self-defense argument, which may or may not be accurate, but like Skelley and 3G said, you can't aid perjury, so I said I'd talk to the cousin and see what he offered and if it wasn't the story Petey gave me, I'd explain to Petey that we need something that will stand up in court and this just won't cut it. So I'd hope to have the time and resources to do more investigation and figure out whether there was any evidence that the girlfriend had ever been violent in the past or whether she'd somehow be less credible than Petey. Bottom line is that things aren't looking great for Petey at this point, if the cousin doesn't back his story w/out prompting and if the girlfriend is going to testify that the cousin wasn't there anyway. So no, you couldn't put Petey on the stand if he was going to try to pass a story like this that had no supporting evidence...

#3: My response to this is that Jake easily could have been lying about his giant rap sheet. Defendant's lie all the time about their big bad criminal past, thinking somehow this is going to impress someone. Also, whether Jake was lying or not, his word about his past record is not very trustworthy evidence, so until I see something to corroborate this, I don't really feel compelled to notify the prosecutor that there's been a mistake. I do think this could be a tough call, though, depending on what Jake's being charged with, but Jake's my client, and from these facts I think I could stand up in court and feel fine about saying, "Your honor, as far as I know, Jake has been a good member of society until this incident and he deserves a second chance on this."

One thing I always think about with stuff like this is the massive resources at the disposal of the police and the prosecutor. If they can't get their story straight w/all those resources behind them, it's certainly not *my* job to help them out, right?

Of course, part of why I want to do this clinic is so I can get a more solid idea of the best way to handle these situations. I just hope I get that chance....

Jennifer: I'm not sure if other cities/schools have a clinic like this, but my guess is, yes. Maybe not exactly like this, since this is a multi-school clinic that gets its own funding from donations rather than from any particular school, but lots of schools probably have their own crim-defense clinics that get students in court.

Posted by: ambimb at March 19, 2005 07:27 PM

Hey, how'd it go? I'm a day late and a dollar short, as usual. Here's my $.02:

#1 & 2: Actually, there's no need to finesse here. Be blunt, forthright and honest with your client. Tell him that in no way will you assist him in suborning perjury, so if he's going to get up on the stand and lie, you'll withdraw from the representation (permittted under MR 1.16 - Declining or Terminating Representation), and you may also tell the judge & prosecutor (permissible under MR 3.3 - Candor Toward the Tribunal).

Next, tell him you'll check out the cousin's story (but you won't tell him what Petey said to), and if it's believable, you'll put it on. More likely, the prosecutor will offer a deal. If not, MR 1.16(b)(2) allows you to walk away.

As his attorney, the phrase "zealous defense" means - in respect to an obviously guilty client - making the prosecution prove every point of the charge. So if it's aggravated criminal sexual assault, you make the prosecutor prove there was a weapon, there was a penetration, and it was against the victim's will.

#3: Jake sounds like a big talker. Confront him with what you found, and ask him to prove up or shut up. If he proves up, then you'll want to let the prosecutor know (see MR 3.3 again), and if he shuts up, you'll know to take everything he says with a grain of salt.

Posted by: greg at March 20, 2005 01:00 PM

wait, PDs are allowed to decline representation? in what state? we're not allowed to do that in Alaska.

Posted by: monica at March 20, 2005 02:59 PM

I don't think he meant declining, but rather withdrawing. PD's can't decline appointment (unless an investigation reveals non-indigency), but any attorney can move to withdraw based on a variety of reasons - most notably frivolous issues and conflicts. PD's are covered by that.

Ambimb, as to #3, I'd trust my own copy of the rap-sheet over his verbal representation. After I'd showed it to him, I'd whack him over the head with it.

Posted by: Three Generations at March 20, 2005 07:32 PM

what kind of frivolous issues are you talking about? yeah, conflicts happen, but someone will end up representing the guy.

Posted by: monica at March 20, 2005 11:02 PM

When I said frivolous issues, I was referring to an attorney's right to withdraw. But say you get assigned an appeal or a habeas petition and there are no claims to pursue (in your opinion) but your client insists there are and insists on going forward. Ethically, I think, you would have to file an Anders motion.

Posted by: Three Generations at March 21, 2005 12:16 AM

well, yeah, but i didn't think this question was about appeals or habeas.

Posted by: monica at March 22, 2005 12:27 AM

Yes, I know. What I said was, all attorneys can withdraw based on frivolous issues and conflicts. PD's are covered by that. Which is true. In the specific case used in the example, there'd be a conflict. Then I gave examples of when there'd be frivolous issues.

Sorry for the confusion.

Posted by: Three Generations at March 23, 2005 08:05 PM

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