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Lives of “Quiet Desperation”: More on Jailhouse Lawyers

Jamison KoehlerCriminal Procedure

Over at Chicago Criminal Defense, Marcus Schantz writes about the challenge of representing an incarcerated client who fancies himself a lawyer. With much at stake, time on his hands, and access to a prison “library” (often a converted broom closet with a few outdated law books), a client might spend hours poring over law books, drafting motions, and developing strategies for his case.

While the success of jailhouse lawyers such as Jabbar Collins is extremely rare, these efforts will occasionally bear fruit in minor ways. As Schantz writes, “I have had a couple of clients that found case law that helped me prior to a motion hearing.  I am not afraid to admit that I don’t know everything or have read every case on any given topic.  Thus, in a few instances, the extra help was appreciated.”

More often than not, however, the extra help can be a burden. Clients don’t understand legal principles, the rules of evidence, and criminal procedure, and Schantz says that he often spends an inordinate amount of time explaining to the client – and then to the client’s family and friends – why a particular litigation plan won’t work.  “In some of my cases, Schantz writes, “I have spent more time teaching the law than actually practicing it.  And it’s very frustrating.  No one seems to understand that credible testimony alone can be enough to prove up an entire case.”

Clients untrained in the law can come up with some wacky theories:  The case is going to be dismissed because the police officer didn’t read me my Miranda rights.   Because I pleaded guilty every other time I was arrested, the fact that I am contesting the charges this time will surely convince the judge or jury of my innocence. Or, in the example Schantz uses, how can I be convicted of armed robbery when the firearm was never recovered?

Insistence on such a theory not only poses an extra burden on the defense attorney, it can also get in the way of a favorable plea bargain.

I have no idea what percentage of Schantz’ clients are from court appointments.  But, based on my experience as a public defender and comparing that to my current experience as a private lawyer, I am guessing that a greater percentage of the self-help lawyers in prison are indigent.

Here’s my theory:  People don’t value what they don’t pay for.  And if you can’t afford to hire your own lawyer, you are suspicious of the motivations of the person appointed to represent you. If you are such a good lawyer, for example, why are taking court appointments?  Many defendants are also convinced that, because public defenders and court-appointed lawyers are paid by the government, their true loyalty is to the system. And if you are facing a long prison term, have no ability to hire a lawyer of your own choosing, and have no confidence in the lawyer who has been appointed to represent you, you really have no choice but to try to take the matter into your own hands. Henry David Thoreau could very well have been speaking of prison inmates when he wrote that the “mass of men lead lives of quiet desperation.” The prison library begins to look like your only life line.

It is a different dynamic when the client chooses his own lawyer. Every instinct in the client’s body tells him to trust a lawyer he has hired on his own. After all, how else can you justify the tremendous expenditure of resources?

My brother-in-law, a former federal prosecutor in D.C. and then Virginia, tells the story of the one of the best criminal defense lawyers he ever faced who occasionally took on a court-appointed case, usually as a favor to a judge. People fought to retain the services of this lawyer in the legal marketplace. At the same time, my brother-in-law recalls overhearing a defendant represented by this lawyer complain bitterly about his court-appointed lawyer. He was the same lawyer, whether court-appointed or retained.  The only difference was in the mind of the defendant.

The major problem with my theory, of course, is that it is difficult to test. With lower rates of the recidivism that would put them back into prison, and with the means to secure their freedom through the posting of bond, there are significantly fewer people with money actually sitting in prison awaiting trial.  There is thus only a very small sample through which to test the theory.