On working with indigent criminal defendants
by Jamison Koehler on May 13, 2022
With the news that my smart and socially committed niece Somers Brush has begun work as a public defender in Detroit, I have been reflecting on the past 15 years I have spent representing indigent defendants: three years as an assistant public defender in Philadelphia and, since then, accepting court-appointed cases as part of my private criminal defense practice in Washington, D.C.
Is there any advice I can offer her?
Lesson Number #1: Never push a plea
I have learned from bitter experience that becoming emotionally invested in a client taking a plea – even the best plea imaginable — is almost always counterproductive. People tend to be contrarian: If we tell them they need to take a plea, they will think of many reasons why they shouldn’t.
As a result, I use a sort of reverse psychology when broaching the issue of a plea with a client. Only after going through the facts of the case and my strategy for taking it to trial do I then inform the client – almost parenthetically — that there is a plea offer on the table. I find that when I do it this way it is the client, not me, who keeps coming back to the plea. “That is great and all,” the client says. “Thank you. But what would happen if I took this plea?”
If this sounds as if I am being manipulative, it is true: I am. Absolutely. But it leads to the best outcome. This is our client’s life, not ours, and the decision whether or not to take a plea is entirely the client’s. The client needs to come to the decision on his/her own. He/she has to affirmatively want to enter into the plea. Otherwise, the client will enter into an ill-considered plea. Or the agreement will fall apart during the plea colloquy.
Another reason not to push a plea is that, just as I have lost cases I was sure I was going to win, I have also won cases that, at first glance, I thought were dead dog losers. You never know: complainants recant or move away, the government loses pieces of evidence, and cases are dismissed before trial. This happens far more than people realize. Or witnesses change their stories or lie and you end up with a win at trial. Body worn camera files are the best thing that ever happened to criminal defense attorneys.
When I was a public defender, I used to admire the older, more experienced lawyers who could take any crack and open the government’s case wide open. They would see things that I had missed. After years of doing this, I now have the confidence to believe that any case is potentially winnable. All we need is that tiny sliver of light.
In arguing not to push pleas, I am also influenced by having interviewed hundreds of clients who, when discussing their criminal histories, only speak ruefully about the times they decided to plead guilty. The regret seems to last forever: My lawyer talked me into taking that plea, they say. I should have taken it to trial.
Conversely, I think of a client in Philadelphia who, after insisting on taking a lousy case to trial, got slammed with a lengthy jail sentence. I remember him thanking me at sentencing for my advocacy and then thanking the judge as he was led away in handcuffs. I don’t know how he felt the next day when the reality of a long jail stay began to sink in. But on that day anyway, he had the satisfaction of knowing that he had had his day in court. He had exercised his constitutional right to a trial. He had been heard.
Lesson #2: There is no need to defend the system
As we help our clients navigate the criminal justice system, a system that is often confusing and unfair, we will necessarily find ourselves explaining things. Explaining the system, however, does not mean that we have to defend it.
Unlike retained clients who think we are great (they wouldn’t have hired us if they didn’t trust and respect us), many court-appointed clients will be skeptical of both our skills and our motives. Knowing that our paycheck comes from the government, they often lump us in with the government. I hate when clients talk about “you all” this and “you all” that.
Our criminal justice system really does stink. Why have I always found myself so reluctant to say so/agree with client when they complain? Clients need to know that we share their outrage. They need to know that we are on their side.
Occasionally when the government has done something I disagree with, I have found myself going off on a long rant when speaking with a client. My inclination is to stop myself. Then I think: Why not let the client hear my frustration? Chances are, I am putting voice to exactly what the client is feeling.
Or, just before we are about to appear in front of the judge, I will preview my argument for the client. It is good to practice the argument. More importantly, clients love to hear us display this passion — both privately and before the court.
There was a private lawyer in Philadelphia who used to take the defendant’s money for the initial hearing or two and then dump the client on the public defender’s office to clean up the mess. None of us in the public defender’s office had ever seen him actually try a case. And he had no clue when it came to the law.
But he did put on a great show: “You have had your turn,” he would say when the prosecutor would try to object. “Now it is my time to talk.” Defendants would chase him out of the courtroom when he was done, asking for his card.
Lesson #3: Never contradict your client in court
At some point any lawyer who does indigent defense will find him- or herself being dressed down in court by an unhappy and ungrateful client. “My lawyer doesn’t believe in my case.” “My lawyer never comes to see me at the jail.” Or: “My lawyer never conveyed the plea offer to me.”
My favorite complaint was something I heard from a juvenile defendant talking about his lawyer: Would it kill him to use a breath mint or two?
The natural inclination, of course, is to defend oneself: “Are you kidding me? I have been out to see Mr. Smith at the jail three times in the last week alone.”
Instead we hold our tongue. We remain expressionless. We do not turn back to the gallery and roll our eyes. We never contradict our client in court.
I have seen colleagues engaged in outright spats with their clients in open court. Not a good look. “We are going to act like adults here,” said the judge to one of the lawyers.
Our colleagues sitting in the gallery will themselves have been on the receiving end of such unfair criticism at one point. They will take what the defendant says about us with a grain of salt. What they will not forgive is any show of disloyalty.
Lesson #4: A light touch often works best.
Criminal defense is a serious and often depressing business. Someone or something has been harmed, and our clients are facing consequences that could last for the rest of their lives.
But that does not mean we need to be all doom-and-gloom.
I have found that clients respond best to a warm, friendly, comforting face when we show up at the jail. Who likes dour?
I have learned a lot from listening to the recorded jail calls of my clients. Eavesdropping on my clients speaking in unguarded moments with their friends and families, for example, I have learned that I have had the unfortunate habit of appearing rushed or harried in my dealings with clients.
I need to relax, throttle back. I need to learn not to take everything so seriously.
Hearing one of my clients doing an impersonation of me (prefaced with “my lawyer says”) with this loud and exaggerated tone of voice has taught me that I need to dial things down a bit. I need to listen. I need to act more like a person and less like a lawyer. This is particularly true considering I am an older white male and most of my indigent clients are young black men. I need to do everything I can to bridge that divide.
And this leads to my last piece of advice:
Lesson #5: A thick skin prevents burn-out.
I am still working on this. I am a prickly, thin-skinned guy. I like praise. I hate to be criticized.