SCU – LEGAL PROFESSION
TWELFTH WEEK – CRIMINAL LITIGATION
APRIL 10, 2012
Ex. 12.1
(FAQ’s)
All Read and
ready to discuss
Ex. 12.2
All Read and
ready to discuss
Ex. 12.3
All Read and
ready to discuss
Ex. 12.4
All Read and
ready to discuss
Ex. 12.5
All Read and
ready to discuss
Read MR 3.1, 3.3(a)(3), 3.6, 3.8
12. CRIMINAL LITIGATION
12.1 Frequently Asked Questions
(12.1.1): Do the Model Rules apply to criminal litigation?
Yes, they do. Rule 3.8 regulates prosecutors, and there are a few sentences and
comments dealing with criminal defense lawyers, such as the second sentence of 3.1
and the provisions in 3.3(a) that deal only with criminal defense.
(12.1.2): What else supplies the “law of lawyering” in the context of
criminal litigation? (And how is that different from the non-criminal context?)
The field of criminal litigation has several bodies of governing besides the
ethics rules. For example, the protections in the Bill of Rights can set a minimum
floor for the level of lawyering that a criminal defendant must receive and can set
limits on the behavior of prosecutors. Prosecutors can be subject to guidelines and
1
policies set internally within a prosecutor’s office or by the state or federal agencies.
And the ABA has an entire set of standards for criminal litigation that go beyond the
Model Rules.
(12.1.3): What practical realties affect how criminal litigation plays out?
Despite what the rules say, many (most?) observers believe that he prosecutor
has nearly all the power and control in criminal litigation. This “uneven playing
field” has enormous impacts on how particular prosecutions play out. On top of that,
the criminal defendants often lack money to hire lawyers and to incent lawyers to
mount vigorous defenses. Public defenders can be burdened by enormous caseloads,
effectively preventing them from mounting formidable defenses in many cases.
(12.1.4): What rules apply to the prosecutorial function?
The Constitution, the ethics rules, the ABA Standards, and the case law all
agree: the prosecutor should act as a minister of justice, seeking just results.
(Whether or not they act that way in any particular case is a different question.)
Whereas a civil litigator can seek any advantageous result so long as the lawyer
follows the rules and plays fair, the prosecutor must seek only those results that are
just. So, for example, if the prosecutor believes the defendant did the crime but that it
cannot be proven beyond a reasonable doubt, the prosecutor is supposed to dismiss
the matter.
(12.1.5): What rules apply to the criminal defense function?
If you read the rules carefully, and with some knowledge of how the defense
function works, you will realize that so long as the defense lawyer doesn’t offer false
evidence, she may offer a case theory she knows to be false. We will explain this in
class.
(12.1.6): What recent developments have arisen in this field?
Rule 3.8 has two new paragraphs dealing with a prosecutor’s duties after
convictions to respond to evidence that tends to exonerate the convicted. There is a
current controversy about how well—or how poorly—we support the roles of public
defenders. We also have a recent US Supreme Court holding that part of the Sixth
Amendment promise of “effective assistance of counsel” requires criminal defense
counsel to advise the client of the effect of plea bargains on the deportation status of
the accused. (Padilla v. Kentucky)
2
12.2. ABA Standards for Criminal Justice (Defense) (excerpts)
Standard 4–3.2 Interviewing the Client
(a) As soon as practicable, defense counsel should seek to determine all relevant
facts known to the accused. In so doing, defense counsel should probe for all
legally relevant information without seeking to influence the direction of the
client's responses.
(b) Defense counsel should not instruct the client or intimate to the client in any
way that the client should not be candid in revealing facts so as to afford defense
counsel free rein to take action which would be precluded by counsel's knowing
of such facts.
History of Standard
There are stylistic revisions only.
Related Standards
ABA Standards for Criminal Justice 4–3.1(a) (3d ed. 1993)
Commentary
Securing Facts from the Client
The client is usually the lawyer's primary source of information for an effective
defense. An adequate defense cannot be framed if the lawyer does not know what is
likely to develop at trial. The lawyer needs to know essential facts, including the
events surrounding the act charged, information concerning the defendant's
background, and the defendant's record of prior convictions, if any. In criminal
litigation, as in other matters, information is the key guide to decisions and action.
The lawyer who is ignorant of the facts of the case cannot serve the client
effectively.*
The client, whether innocent or guilty, often knows facts that may tend to be
incriminating. For example, though the defendant may be innocent, he or she may
have been near the scene of the crime at the time it was committed and, hence, may
*
See also Standard 4-3.1 Commentary.
3
be reluctant to disclose that fact to the lawyer for fear the lawyer will lose confidence
in his or her innocence and thus fail to pursue the case zealously. The lawyer must
recognize this reluctance and overcome it in order to obtain the facts necessary for an
effective defense.
Defense counsel has sometimes been depicted as following the strategy of
informing the client of the legal consequences of various factual situations in order to
influence the client to adopt the factual version most favorable to a legal defense, for
example, the claim of insanity.† A lawyer who follows this course handicaps an
effective defense by promoting ignorance of facts that may ultimately be revealed at
trial.
Calculated Ignorance of Facts by the Lawyer
The most flagrant form of “intentional ignorance” on the part of defense lawyers
is the tactic of advising the client at the outset not to admit anything to the lawyer
that might handicap the lawyer's freedom in calling witnesses or in otherwise making
a defense. This tactic is most unfortunate in that the lawyer runs the risk of being the
victim of surprise at trial. A lawyer should make clear to the client the imperative
need to know all aspects of the case; the lawyer should explain that all of the client's
statements and those of other witnesses must be fully investigated. To secure candid
disclosure from the client of facts that are often both incriminating and embarrassing,
the client must be sure that these facts will not be divulged by the lawyer.
Accordingly, the client should be given an explanation of the extent of the privileged
status of all information revealed to counsel.‡
********
Standard 3–1.2 The Function of the Prosecutor
(a) The office of prosecutor is charged with responsibility for prosecutions in
its jurisdiction.
(b) The prosecutor is an administrator of justice, an advocate, and an officer
of the court; the prosecutor must exercise sound discretion in the performance
of his or her functions.
(c) The duty of the prosecutor is to seek justice, not merely to convict.
†
‡
See, e.g., R. TRAVER, ANATOMY OF A MURDER (1958).
See Standard 4-3.1(a).
4
(d) It is an important function of the prosecutor to seek to reform and
improve the administration of criminal justice. When inadequacies or injustices
in the substantive or procedural law come to the prosecutor's attention, he or
she should stimulate efforts for remedial action.
(e) It is the duty of the prosecutor to know and be guided by the standards of
professional conduct as defined by applicable professional traditions, ethical
codes, and law in the prosecutor's jurisdiction. The prosecutor should make use
of the guidance afforded by an advisory council of the kind described in
standard 4–1.5.
History of Standard
Standard 3–1.2 was Standard 3–1.1 in the second edition. Section (b) has been
revised stylistically to add the “and an officer of the court” language. Section (d) was
Standard 3–1.4 in the second edition of these Standards. Section (e) contains a
stylistic revision. The final section in this Standard in the second edition—former
Section (f)—has been deleted, but some of the language has been moved to Standard
3–1.1.
Related Standards
ABA Model Code of Professional Responsibility Preliminary Statement; DR 1–
102(A)(4), (5); EC 6–1; EC 7–13; EC 7–14; EC 9–6 (1969)
ABA Model Rules of Professional Conduct Preamble; Scope; 1.1; 3.8; 8.4(c),
(d), (e) (1983)
ABA Standards for Criminal Justice 3–2.8; 3–3.4; 3–3.8; 3–3.9; 4–1.2; 4–1.5 (3d
ed. 1993)
NDAA National Prosecution Standards 1.1; 1.3; 1.5; 1.6; 6.1; 6.2; 6.3; 25.1;
25.3; 25.5; 86.1; 92.1 (2d ed. 1991)
Commentary
The prosecutor plays a critical role in the criminal justice system. All serious
criminal cases require the participation of three entities: a judge (and jury), counsel
for the prosecution, and counsel for the accused. Absent any one of these entities
(and barring a valid waiver of counsel), the court is incomplete. In short, a “court”
5
must be viewed as a structure with three legs, requiring the support of all three.
Although the prosecutor operates within the adversary system, it is fundamental
that the prosecutor's obligation is to protect the innocent as well as to convict the
guilty, to guard the rights of the accused as well as to enforce the rights of the public.
Thus, the prosecutor has sometimes been described as a “minister of justice” or as
occupying a quasi-judicial position.
The prosecutor may also be characterized as an administrator of justice, since the
prosecutor acts as a decision maker on a broad policy level and presides over a wide
range of cases as director of public prosecutions. The prosecutor also has
responsibility for deciding whether to bring charges and, if so, what charges to bring
against the accused, as well as deciding whether to prosecute or dismiss charges or to
take other appropriate actions in the interest of justice. Since the prosecutor bears a
large share of the responsibility for determining which cases are taken into the
courts, the character, quality, and efficiency of the whole system is shaped in great
measure by the manner in which the prosecutor exercises his or her broad
discretionary powers.
The legal profession must continue to develop an awareness of the importance of
a vigorous, fair, and efficient prosecutorial system and give high priority to the
sponsorship and support of those measures necessary to implement this objective.
The court and defense counsel will treat the prosecutor with the respect that
facilitates furthering this objective, however, only if the prosecutor maintains proper
professional detachment and acts in accordance with applicable professional
standards. Such professional integrity and detachment is furthered by the prosecutor's
efforts, independent of the prosecutorial role, to engage in appropriate law reform
activities and to remedy injustices that the prosecutor sees in the administration of
criminal justice generally in his or her jurisdiction.
As the public official in constant contact with the day-to-day administration of
criminal justice, the prosecutor occupies a unique position to influence the
improvement of the law. As one national study has noted, the prosecutor “affects the
development of legal rules by his arguments in court. He can help bring about
needed reform by pressing for changes in bail practices, for example, or in
procedures for the appointment of counsel.Ӥ Although the legal profession does not
PRESIDENT’S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, THE
CHALLENGE OF CRIME IN A FREE SOCIETY 147 (1967).
§
6
bear sole responsibility for law reform, it has a clear duty in this respect. ** In recent
years, moreover, increasing numbers of lawyers have recognized their responsibility
in the administration of criminal justice. Prosecutors should take advantage of this
climate of professional concern by assuming leadership to improve the quality and
efficiency of criminal justice. It is in the public interest for the prosecutor to foster
good working relationships with the defense bar, including defender agencies, and to
participate in such activities as criminal law sections of the organized bar and joint
seminars on criminal law and procedure. Reforms and improvements in the criminal
law will more readily gain the approval of legislative bodies and the public if they
are the joint work product of both prosecutors and defense lawyers.
It is also the duty of the prosecutor to become intimately familiar with and adhere
to the legal and ethical standards governing the performance of his or her official
duties. Like other lawyers, the prosecutor is subject to disciplinary sanctions for
conduct prohibited by applicable codes of professional conduct in his or her
jurisdiction. The Prosecution Function Standards are intended to advise and assist the
prosecutor in the honorable and professional performance of prosecutorial duties. To
this end, in situations of doubt as to the proper course of action and where available,
the prosecutor should make use of the guidance of the advisory council on
professional conduct that these Standards recommend be established in each
jurisdiction.
********
12.3. Prosecutors in Their Own Words (Baker)
Chapter Three: Tactics
After all the plea agreements are made—which accounts for 85 to 90 percent
of the prosecutor's caseload—he or she is left with, the cases that must be taken to
trial. It's not easy to win a jury trial. According to Newman Flanagan, executive
director of the National District Attorneys' Association and the president of the
American Prosecutors' Research Institute, the conviction rate in jury trials for
prosecutors nationwide averages only about 62 percent. "You ask the public what
the conviction rate is in jury trials," laughs the former district attorney of Boston,
Massachusetts, "and they will say it's upwards from 90 percent. When they hear that
**
ABA Model Rule of Professional Conduct 7.1; ABA Model Code of Professional Responsibility
EC8-2.
7
62 percent figure, they go, 'My God! That's outrageous. Half of them are getting
away.'
"I tell them, 'Wait a minute, you don't think this defendant is trying his case
because we caught him red-handed in the store he robbed, do you? No, this guy is
trying his case because there is merit to a potential not-guilty verdict. This guy
knows he's got a shot.' "
The defendant and his counsel know "he's got a shot" because of disclosure.
Rules of discovery or disclosure in state judicial systems require both the
prosecution and the defense to reveal all the evidence and witnesses that will be
introduced at trial. Both sides know exactly who will testify, and often what they
will say. Both sides know what the jury will see, and when they will see it.
Ah, for the good old days before the majority of the states changed their
criminal codes, when there was no discovery, and a prosecutor didn't have to tip his
hand by giving up all his evidence and witnesses to the defense counsel before the
trial. The writers for the old Perry Mason television programs got it all wrong. In
the real world, Perry would have been the ambushed lawyer in the courtroom,
sitting at the defense table with his mouth opening and closing like a beached fish as
the district attorney, Mr. Burger, called a surprise witness, introduced new evidence,
or started a totally unexpected line of questioning that confirmed the guilt of the
defendant beyond a reasonable doubt. A former prosecutor who is now on the bench
reminisces about that glorious era:
"The defense attorney had to work an awful lot harder to find out anything
about his case. He wasn't being handed the prosecutor's file. There were only a
couple of sources of information for the defense. It was common then, and almost
never happens now, that preliminary hearings were held in criminal cases before the
matter even went to the grand jury, so there was a limited amount of discovery that
was done there. At least some of the witnesses testified under oath, and there was
some indication as to what was going on in the prosecutor's case.
"There were also some defense attorneys who had pretty close friends on the
law enforcement agencies—either the police department or the sheriff's department.
Those who did a lot of criminal practice would also handle the divorces for the cops
and build a relationship with them, so they would get a lot more information than
we were willing to give them.
8
"The greatest tool that was used by both sides in our area was True Detective
magazine. One of the local court reporters was paid a penny a word to write his own
lurid version of these crimes for the tabloids, and there would be more about our
cases in the magazine than there were in either the prosecution or the defense case
files. His stories always came out before the trial and had amazing things in them.
He would have photographs of the evidence and interviews with the defendants. So
we always went out to buy a copy and put it in our briefcases. If you didn't have a
copy, then you were incompetent counsel.
"Not having the discovery was a lot of fun for prosecutors. Since you weren't
tipping your hand and telling them everything about the case, you were allowed to
spring great surprises on these people.
"For instance, one day I had a burglary case. I was talking to the defense
attorney the day of trial, and I said, 'I don't understand why this guy's not pleading
guilty. We made him a reasonable offer.'
"'Oh no, no, he's totally innocent,' the defense attorney says.
"'I might as well tell you now. I've got fingerprints inside the residence. That
places him in there.'
"He walked back to the counsel table, whispered to his client for a while,
came back, and said, 'Oh, he can explain those fingerprints. He had visited there on
a couple of occasions. The baby-sitter had him over. He knew her and had been in
the house in the living room, so his fingerprints being there is no problem.'
"So I reached down in a bag and pulled an item out and threw it on the
counsel table. He said, 'What's that?'
"'It's the dryer vent from the basement window that was ripped out. His
fingerprints are impressions in the lint of the vent, a set of eight prints. Is that how
he visited the baby-sitter every time he went over?' The guy pled guilty then.
"All of a sudden, here comes the evidence in the case, which would come as
a terrible shock to them. So those days were fun."
Those days may have been fun, but the results were often unfair and
generally inefficient. The crime rate outstripped the ability of the system to handle
cases in the 1960s and 1970s. At the same time, taking their lead from the Supreme
9
Court dominated by Justice Earl Warren, the public became aware of the
fundamental inequity of trial by ambush. As a result, the majority of the states
instituted changes in their criminal and civil codes, making disclosure a part of the
defendant's basic rights in trial. The introduction of discovery was perhaps the most
momentous change in criminal prosecution in the last hundred years. A longtime
defense lawyer, with over thirty years' experience practicing in a primarily rural part
of a Southern state, remembers the very first time he filed a motion for discovery:
"The first time I introduced a motion for disclosure, what we call a motion
for discovery, was in 1971. Frank Jenkins, the state attorney was at his raging,
steaming best back in those days. I presented the motion to him right in front of old
Judge Harper, and Frank Jenkins said, 'What is this, some ACLU trick?'
"The judge boomed from the bench, 'No, Frank! These are the new rules of
criminal procedure, and you're going to abide by them!' That probably was the death
knell for the old-style-fire-and-brimstone political animals. He didn't believe in
giving out the names of his witnesses, which meant giving away his case as far as
he was concerned. Of course, the end result has been very beneficial, because there
are no more surprises. Everybody knows in advance exactly who's going to testify
for the state and for the defendant. Prosecutors go out and interview the defendant's
witnesses. As far as efficiency in prosecution, there are more pleas now, because it's
easier to assess the vulnerability or the strength of the state's case. You don't have to
try them all, and they couldn't do that anyway these days. There are just too many
cases."
Leveling the playing field afforded prosecutors with a more swift and orderly
machine to dispose of the majority of their burgeoning caseloads, but it has also had
the effect of winnowing out the no- brainers. Only the difficult cases tend to come
to trial. Defendants don't get away with murder because of a "technicality" in the
trial process exploited by amoral defense lawyers. A guilty person may, however,
walk away scot-free from his or her crime because law enforcement or the
prosecutor have made a mistake. The margin of error that can be accommodated in
prosecution is narrowed to a hair's breadth.
Some new, young prosecutors face this challenge with the bean-counting zeal
of an IRS auditor crossed with the techno-dependency of a full-blown computer
dweeb. The cyber-library of precedents is exhaustively researched. Every question,
every motion, every point in closing arguments is written out and virtually read to
the court in an attempt to eliminate any risk of an omission or gaffe. Fear of losing
10
has led to an exponential proliferation of experts in the judicial complex—experts
on jury selection, expert witnesses of every stripe, professional trial coaches giving
expert "How to Prosecute ..." seminars in ever more narrow categories.
Careful preparation, attention to details, a thorough knowledge of the record
on similar cases are all essential to a well-prepared prosecution. But in the end,
there really is no way to cover all the bases. There is no surefire formula for
success, no machine that can churn out a guilty verdict. There are just too many
people involved—a minimum of sixteen, not even counting the victim and
witnesses—with the infinite variety of behavior, emotion, and ways of thinking that
humans are capable of. Outcomes are unpredictable. A good prosecutor needs good
instincts more than good computer skills.
A trial is still essentially civic theater, a human drama, and jurors appreciate a
talented actor with a full repertoire of familiar guises—the ability to make them
comfortable like an old friend, to guide them like a respected father, to fire them to
righteous indignation like a good preacher. Age-old rhetorical skills, the ability to
think on your feet, the patience to wait quietly rather than jumping in to fill a
witness's sudden silence—these are the genius of a good trial lawyer and a winning
prosecutor. Their descriptions of successful tactics sound like pointers from a
veteran of the Broadway stage on timing, on overplaying an emotional scene, on
how to handle hecklers. Winning prosecutors don't talk much about legal precision
or worming obscure judicial concepts into a case. For them the point is connecting
with other people, inspiring trust, convincing the skeptical, charming the
adversarial, befriending the oddball, browbeating the pompous, and giving the
guilty enough rope to hang themselves if they are foolhardy enough to take the
stand.
Perhaps none of tricks of the trade mentioned in this chapter is more practical
than this bit of advice on personal hygiene:
"Very early in my career, I was trying a drug case with a supervising
attorney. He is very heavy, a very overweight guy, although a nice guy, and he had
a very heavy beard. Being overweight, after six or eight hours in court, he was
'fragrant,' and his beard would start poking out in this thick five o'clock shadow. By
the end of the day, he looked like he'd been on a week-long drunk.
"We're trying this case, and we're going to the jury late in the evening. The
judge broke for supper about six o'clock, and everybody went to eat. We met again
11
about seven. The defense attorney looked just like he had at nine o'clock that
morning, when we started.
"I realized that he must have a duplicate outfit. What he did during the break
was go back to his office, shower and shave, change shirts and suits. He was as
fresh as when he started. I knew because of the shirt he was wearing in the
evening—even though it was the same color and pattern as his soiled shirt, it didn't
have a monogram over the pocket. He had completely changed into an identical
outfit, and he looked sharp in front of that jury. We looked whipped.
"It's clever, a neat trick. I asked him about it later, and he evaded the
question, so I knew I had him. If you have long, serious trials that wear you out, you
ought to think about things like that. Instead of going to lunch, run into the damn
shower and get yourself back together."
***
My whole attitude as a prosecutor was, you came in and you took over the
courtroom. The judge just happened to be sitting there. Normally, I tried not to get
too closely involved with the victims in a case. I'd stay as objective as I could while
I was trying it, because that made it much easier for me to work and do my job.
You've got to be totally objective and professional. The prosecutor must appear
before the jury as a fair and unbiased representative of justice, running the entire
operation. You should be indoctrinating that jury, telling the jury just what life is
going to be like for them. What they can expect. Tell them everything you can
possibly tell them. Tell them all the laws. Tell them all the things that the defense
attorney wants to tell them about the case as well so that he'll haw nothing to say.
And if he does have anything to say, it will be that he's going to agree with all the
things that you just said. It works. The defense attorney would not only agree, he
would say, "Just as the prosecutor told you ... and as the prosecutor explained to
you."
You want to build your case so those people are relying on you. You're the
only expert in the court. You're the one who's telling them everything. You're the
one who they rely on totally, and you must have them totally sold on that.
But nothing you say is just your opinion. You never say, "This is my opinion;
this is what I think." You say, "This is what the facts are going to prove to you,
folks. This is what's going to be established." Never personal. Never say, "I think
12
this is a bad man." Don't worry about that. Tell them, "This is what you are going to
find about this defendant." It's all their judgment. The prosecutors who get up there
and begin saying, "I think and I feel," if there is no objection from the defense, half
the time, as a judge now, I'll stop them anyway. "This isn't the way a case is tried,
and what you think has nothing to do with it."
***
I had gotten in with a bunch of lawyers in a civil practice. My job was to
rain-make, go get clients in. I was in the courtroom less and less. When I got this
job as a part-time prosecutor five years ago, I didn't realize how shabby I had gotten
as a trial lawyer.
I got over to my first case, and it was a black guy charged with possession of
a firearm by a convicted felon. The public defender over there, I thought the guy
lied to me. We made a deal, and we went to talk to the judge about it, and this guy
changed it—I thought. That really irritated me pretty good, so we set it for trial, and
he just ripped my ass. Later, I found a handwritten note in my file, in my
handwriting, that laid out the deal more or less as the public defender had stated it
for the judge. I had just forgotten. He hadn't led me on.
This black guy was a convicted felon years ago, who had led a decent life for
a long time. The reason he had a gun was that life was just as dangerous out there
for him as it is for the rest of us. You had a white middle-class jury sitting there
listening to his lawyer telling them, "Hell, yeah, he had a gun. If you lived where he
lives, you'd have a gun, too." I'm sitting there thinking, "He's right. That's right." He
just stomped a mud hole in my ass on that one.
It took me a long time to get back on track. I want to say I was timid, but it
wasn't really timidity. I was faltering in my command of the evidence. My
procedures were weak. It took me a long time to get up to speed. I think I did.
The real secret to trying cases is to try and tell stories that peo-ple will listen
to. You tell something in the fashion of a coherent story—there's a beginning, a
middle, and an end—the subject matter flows. If you approach cases as a story with
a theme and characters and a logical ending, you'll do a couple of things: You'll
present the case in an orderly fashion. "I want to tell you, the jury, a story. I have to
start at the beginning of the story and fill in all the little blanks with witnesses and
evidence." They can perceive and receive the evidence clearly that way if they know
13
beforehand what the story is about. Maybe it's about the all-American dream gone
bad. It's about unrequited love. It's about avarice and greed. It's about envy, or
whatever the fuck it is about. It's always about something. A few crimes don't make
sense, but most of them have a story. If the jury knows what the story is about,
when they hear it, it makes sense and the things you tell them you're going to do
make sense, then you have credibility, which is critical. If you lose your credibility
with the jury, it's over.
So if I'm trying a case, I'll tell you, "This is about someone who wants to beat
the system, someone too lazy to do anything except try to beat the system." Then I
outline this story about a guy who develops bogus bank accounts and begins kiting
checks around the community. He's got some grand scheme and—boom! —it
finally falls apart. I'm not going to get up there in front of the jury, and say, "This is
a complicated financial case, and you need to pay strict attention." What's that
mean? But if you're telling a story, when the first witness gets up and says
something, they have a general idea of how that's going to fit into the big picture.
That's why it's critical that they understand the story.
In the basic rape or possession of drugs cases, we don't need lawyers to try
those. You just need tape recorders and enough courtrooms and jail cells. But in the
case where the difference between conviction and acquittal is a lawyer, you have to
make it into a story.
I started doing that and getting more fluid with my evidence. The other key to
trial work is the rules of evidence—what's admissible, what isn't admissible. If you
don't know your evidence, you're fucked. You can be the best bullshitter, the
handsomest, most charming guy in the world. If you don't know your evidence,
you're done. Take some time off, and go home early.
You do have to depend on the police. If you don't have good law enforcement
out there, you can't make a silk purse out of a sow's ear sort of thing. We had a case
here years ago. The city manager was accused of cutting the mayor's wife's head off
with a machete in front of the mayor's house. One of the prosecutors got to the
crime scene and had gone into the house when he heard water running. He went
outside on the sidewalk—this was in broad daylight—and he found one of the
police officers washing the area down, just "cleaning up," and destroying the crime
scene. The guy got acquitted, by the way.
14
Teifel McMann was probably in his early forties. He was an appliance
salesman and repairman. He had a little shop down off the main drag. He'd had
trouble with alcohol in the past. Teifel was drinking one morning, and he decided
that he needed to go buy himself a piece of crack. He went into a laundromat back
in this black neighborhood, where there are some small-time street drug dealers
playing cards. Teifel buys his crack and leaves, but he comes walking back a few
minutes later, pissed off about the size of the rock he bought. There is a scuffle,
with wildly varying reports about who hit who, but Teifel goes down and cracks his
head open on the floor. He has head injuries, and he ends up dying shortly after
paramedics arrive.
I get the case. You can imagine the cooperation I'm getting from the
community around there. Almost every witness inside and outside the place was a
drug dealer or a drug buyer or a friend of the dealers. Except for one: There just
happened to be one seventeen-year-old straight-A high school student in there doing
her mother's laundry. She put it on all of them—said all six dealers hit him. So I
charged them with manslaughter. Not any one blow killed the man, but all the blows
added up to him slamming his head into the floor and cracking his skull.
But I was having trouble. She lived in the neighborhood and was afraid to
testify. There was only one other guy I had a chance with, a guy named Hernando
Nathan. He's twenty years old, no job. If you go down there right now, he's on the
corner drinking a beer. He's one of these funny guys—jokes all the time; everybody
knows him. He was interviewed by the detective for the police department.
Let me tell you something, if you think LAPD has problems, you just haven't
seen our local police department. They are so understaffed and undertrained, it's
sickening. For instance, most people who watch television would realize that when
a crime like this has been committed, the police force is supposed to tape off the
area to preserve the crime scene. Then they collect evidence, take some
photographs. This police department is reported to have told the guy who owns the
laundromat soon after the victim was removed to "just mop it up." So there was no
preservation of the crime scene, not photograph number one.
After the detectives interview the various witnesses, I'm supposed to
distribute these reports of the interviews to the defense lawyers. There are six
defendants, six defense lawyers. David Farley, the detective in charge of this case,
was not on time giving me the reports. I sent him two letters saying, "Look, I've got
the defense lawyers on my back. You need to give me the reports."
15
All of a sudden, the date is set for Farley's deposition. Depositions were a gas
in and of themselves, with seven lawyers around the table for every witness. Farley
shows up for deposition with the reports. There are six packets, one for each defense
lawyer, containing the witness reports we were missing. Hernando Nathan's is one
of these. Farley has a copy for everybody but me. I say, “I’ll get it later. Let's just
go. Let's do it.”
A month later, the trial date is set. I have witness problems. Some of the
defendants have ended up pleading to a lesser charge and have become witnesses
for the prosecution, but as you can imagine, everyone's version of what happened
that day is different. When you use a co-defendant, there is always the argument in
the jurors' minds that this witness has been given incentive. But then there's old
Hernando, standing right there outside the plate-glass window looking into the
laundromat. The weekend before the trial, I finally get hold of Farley, and I say,
"Let's get together and prepare. I know what's in them, but I need you to give me the
witness statements you never got to me," and I named off a few of them. So on
Saturday before the trial is to start on Monday, I get Hernando Nathan's statement.
It's a bunch of garbage, and then at the bottom of the transcript of the statement it
says in handwriting, "All six hit the man." I had talked to Hernando in the preceding
months, and he would say, "Oh no, man. I didn't see nothing, man. I didn't see
nothing. Nothing, man." But I realized that I needed something up there besides my
high school girl, so I decided to put Hernando on the stand anyway, let him say that,
and then impeach him with his own sworn statement.
So I get Hernando on the stand. "I didn't see nothing, man. C'mon, what you
doing to me? I didn't see nothing, man."
"Hernando, 'All six hit the man,' didn't they?"
"No, man."
“Do you remember giving a written statement?”
"Yeah, man. I remember, yeah."
"Isn't this what you swore to?" So I read it out, line by line, sentence by
sentence. I get to the last sentence. "And then you told the officer, 'All six hit the
man.'"
16
"Objection!" The defense attorney gets up. We go to the bench. His copy
doesn't have the last line written on it. I'm saying, "Wait a minute, wait a minute." I
look at his copy. Oh my God! I'm in big, big trouble. It wasn't even Hernando's
handwriting. It's the cop's.
Then the defense made what in my opinion was a strategic error. He moved
for a mistrial, which means the case is over, but the defendant can be retried. The
judge granted the mistrial. He brought the cop over out of the jury's presence, and
Farley says, "I don't know how that got there. Wow, I don't know. Wow, man, wow.
I can't explain that."
"Is that your handwriting?" the judge asked him.
"Yeah."
"What do you mean," I said. "It's your handwriting, you put it there."
Next month, I tried the guy again. I didn't call the detective or Hernando. The
guy got convicted with the high school girl's testimony and a couple of codefendants.' Strategically, the defense had me on the ropes in the first trial. What
they should have done was call the cop back to the stand and rake him over the
coals. Anything he said at that point was a potential lie. Instead, the defense went
for the immediate gratification of a mistrial without looking down the line.
An independent investigation was set up. Farley was tried and convicted for
evidence tampering and barred from working in law enforcement.
It's a small community. Everybody knows everybody else. So if an outside
perpetrator committed a crime on a local person, you knew the family and it was as
though you were a relative being charged with going forward and making sure that
justice was served, "By God, we're going to get that guy." That's different than it
would be in a larger community. If somebody was wronged—"My sister was
raped"—I'm going to defend her honor. I'm going to get that guy. But it is
something that you have to guard against, because you lose your objectivity, and
that's not good. We had a good sheriff. He was also the local schoolbus driver.
Whatever the sheriff did and however emotional he might become, I at least tried to
avoid getting that involved.
17
When the local youngsters got askew of the law either for alcohol or drugs—
and drugs more importantly—in a small community, you bent over backward to
help them out.
"Now, this is the last time I'm going to warn you: You get into trouble with
this marijuana one more time, and that’s it. You know, this is a crime. You can get
sent to prison."
“I’m sorry. I won't do that again.” So get him all the probation you can or
deferred prosecution. I can say now, this particular guy I'm thinking about is an
accountant who has an office down the street today. He is a community-minded,
responsible citizen. Except for somebody's discretion back when, he would have a
felony and wouldn't be allowed any position of trust. Again, the sheriff upheld the
law, and law enforcement couldn't condone a lot of that, but he was as softhearted
as anybody when it came to a local person being charged with something that did
not involve a violent crime. We bent over backward to keep the kids out of the
prison. The prison was right there in town, too, so you knew how tough that was
going to be.
You have to separate the important stuff from the unimportant stuff. I'm a
bare-bones prosecutor. If I've got four people standing on a corner that see John
Smith shoot Jane Doe and two of them get on the stand and do a very credible job of
saying that, I'm probably not going to use the other two. I don't think the defendant
can possibly deny his guilt, if that's what he's trying to do. For the most part, the
witnesses we get are not articulate or educated. Think of where most murders take
place. Think of bars and back alleys. They may be the nicest people in the world. I
like to drink, myself, so I've been found in bars. But, you know, you've got to be
careful who's testifying. It's not that they're lying. If they are not particularly
educated, the defense attorney can make them look foolish. Then the jury sits there,
and instead of seeing this for what it is—maybe this guy isn't the quickest guy in the
world—they think, Maybe he's lying, maybe we should disregard his testimony.
Witnesses tend to contradict themselves on minor things. If I can get two of them
that come across quite well, I'll forget the others, because I'm not going to gain
anything by putting them on the stand, and I might lose something.
I'm not much for overkill. On the other hand, I'm not going to lose some
wonderful witness, either. If I've got a minister, a priest, and a rabbi, and I put the
minister and the priest on and they come off real good, I'm going to use the rabbi,
too. But normally you don't have that. You've got regular, real people.
18
Other prosecutors are the exact opposite. They want to build up every case as
much as they can. I tried a case with another one of the assistants down there, a
good friend of mine, and a good, good prosecutor. Yet, his theory on these things is
the exact opposite of mine. He hurls everything he can get his hands on.
In this case, we had the murder of a guy who ran a Mack tool truck. There's
lots of money in those tools. Thousands, maybe a hundred thousand dollars' worth
of tools in each truck, at least. A couple of yahoos decided to rob him. They set it all
up. They'd called and called and tried to get this guy. They say they'll meet him
down by the railroad late at night, but they promise him a sale. They'll buy at least
250 dollars' worth from him. The guy can make an extra fifty bucks, and he's trying
to feed his kids, so he goes. They actually shoot him right there at the meeting place
by the railroad tracks. Then one of the guys drives the truck with him in it all the
way down to a small town fifty miles away. They take the tools and leave the truck
in a field. It's dark, and no one can see it. Unfortunately, the guy is still alive. He
doesn't die until the next day, so he was probably in a lot of pain.
Now, the defendant could argue accident—the gun went off by accident. Our
guy is dead, and the other thief is not going to testify, so we don't have anybody to
refute that. He can do a lot of things, but he's not going to be able to get out of the
fact that he and his buddy actually were involved in this act. And there's no question
the victim is dead. We have plenty of good evidence to prove this guy is guilty.
You have to understand, though, that when the police get down there, they
don't know anything. They go and they find this poor guy dead, but the facts of the
case aren't put together until a few days after that. They're doing things that are
good police work but which don't mean anything in retrospect. This time it was
taking tire tracks from the other end of the field from cars that had nothing to do
with this. But they didn't know that this was not evidence at the time. This other
prosecutor I'm working with, George, is trying to put all this stuff into the case—
plaster of Paris casts of tire tracks. Faced with all this extra information, all the
defense has to do is argue that maybe there is something we don't know about. Then
these jurors, who think that real trials are like on television and who want to fancy
themselves as a combination of Sherlock Holmes and Perry Mason, they're going to
solve what really happened, because all of us are just klutzes and don't know it.
That's where you get some bizarre jury verdicts. But George is throwing everything
out to see what sticks—he doesn't want to be accused of holding anything back.
19
The first trial, we did it his way. The first trial was a hung jury. The second
trial, we did it my way, and we got him convicted.
The insignificant grand theft of a riding lawn mower—those are the ones you
lose. People don't care. "Maybe he took the lawn mower, maybe he didn't take the
lawn mower; but I don't want to send the guy to prison for trying to mow his yard."
These cases are great for the public defender controlling the docket. If the crime just
has no significance in the grand scheme of things, juries don't want to convict them,
and you're more likely to lose those. Nobody will turn a murderer or rapist loose.
O.J. may be an exception. But in the grand scheme of things, that's not going to
happen. Time after time after time, you'll get convictions ninety-five out of a
hundred times.
We had an intern this summer, and we had a guy who was a career car thief
coming up for trial. He had a record that looked like the Manhattan Yellow Pages.
He started back in the 1960s stealing cars. Where you or I might call a cab to go
somewhere, he'd steal a car. The state attorney's office wanted to habitualize him,
and they took him to trial, and we put the intern in to try him. The newspaper guy
sat down with me and said, "Is this like shooting fish in a barrel?" I told him, "First
of all, this is the kid's first trial. You don't want to give him a case with warts on it.
You don't want his first time at bat to be a bad experience. This defendant is a
habitual felon, and he needs to go away. You can't make a deal. There isn't a deal to
be made."
The kid is worried about picking a jury, and like most greenhorns, he did
overkill in his preparation, had all these questions to ask the prospective jurors. I
told him, "You don't need to try and pick good jurors. Everybody is a good juror for
somebody who will walk up right in front of you, jump into your truck, and take off.
What you need to do is you need to detect the squirrels." I'm not sure that message
got through.
The truth is, they are all, for the most part, pretty good juries. But you always
have these few people hidden in the general population, sprinkled throughout, the
ones who will get everybody offtrack on some little quirk of theirs, or the ones who
proclaim that everything is subject to doubt. "I think therefore I am. But how do I
know I think?" Those guys. If you can get those people out, you're all right.
As a prosecutor, you want people who are predisposed to convict. The other
side wants people who have a more open mind and are less likely to convict. People
20
talk about how trials are a search for the truth. That's bullshit. You're trying to stack
it and they're trying to stack it, but everybody is trying to get rid of the crazies,
because you don't know what they're going to do.
Never leave a person with a bow tie on a jury. I've known that from the getgo. People with bow ties are squirrely. You cannot predict what they're going to do.
I have personal confirmation of this. I hired this guy a couple of years ago, and he
comes in with great business experience, and he looks good in a pinstripe suit.
Looked like the perfect candidate. Hired him. The second day, he came to work in a
bow tie. I went, "Oops." Boy, I was right. Oh Jesus.
There was an old saying around our prosecutor's office years ago. "In jury
selection, the first thing you do is get rid of all the P's." What that meant was you
got rid of everybody whose occupation started with the letter p. That included
professors and preachers, and plumbers and painters—professionals of every stripe.
There was no rhyme or reason to it—-it was just an old saying.
Over the years, the jury selection process has become quite an art of its own,
and there is a lot more emphasis placed on it than there ever was before. I think
there is definitely some merit to the process. A lot of lawyers, myself included to a
large extent, we try cases strictly from the gut. In jury selection, I make a lot of
decisions on jurors for no other reasons than the gut—how the person is reacting to
me or not reacting to the other lawyer, or subtle things that are unspoken, not really
part of the process. It's like making up your mind about people when you first meet
them. I tell people all the time. I've made a living over twenty years now doing
nothing but evaluating other people, whether they're witnesses, jurors, or
defendants.
Unfortunately, court is not always fair for the defendants. But there is one
thing I have noticed. When it gets to a jury, I'd say 95 percent of the time—maybe
it's just a stroke of luck—-whatever makes it happen, jurors actually do the right
thing. Most of the times the decisions they make are fairly rational, and right on the
money. Most of the time if they say the guy is guilty, he's guilty. And if he's
innocent, they let him go. That's one of the few good things that surprised me about
the criminal system that actually works.
Everybody's fighting it tooth and nail, but once they get into it, people on
juries take it very seriously. They really put their heart into it. They really try to do
the right thing. They know somebody's life is on the line. Or even if it's not on the
21
line, if it's civil, they still take it seriously and try. You'll find some jurors who sleep
through the whole trial, but most of them do a good job, and that's one of the
rewarding things about the law.
We had two constables who were just absolutely delightful beyond belief. At
that time, which was a while ago, the constables selected the jurors. These two
fellows always decided how the case should end and would fix the jury, considering
what they thought the outcome should be.
There was a case where the prosecutor said to the judge, "I don't want this
man to sit on this jury because he can't hear.'' This guy was deaf as a board.
The judge didn't hear so well himself. The judge leaned over and he said,
"WHAT?"
The prosecutor said, "He's deaf, Your Honor! He's DEAF!" So the judge
went along with that. The prosecutor is walking out, and one of the constables gets
him aside and says, "God, you made a terrible mistake. That guy was with you all
the way."
Then came the day that one of the constables' friends gets a DUI. They go
down to one of the real tough bars, and they pick the jury from the guys who are
still about half drunk, sitting around on the front bench at the bar. The jury is sitting
there waiting to go into the jury box, and they're belching, and some of them go to
sleep. The constables are looking at the prosecutor sitting there across from the
defendant and saying, "We got you wired on this one, sucker."
But it was an on open-and-shut case, so the jury goes in to deliberate. In
about five minutes, they're back.
"What is your verdict?"
The foreman belches a couple of times and says, "Guilty, Your Honor."
The constables are just in shock. They get the foreman of the jury afterward,
and they say, "Why did you do this?"
And the foreman of the jury says, "It takes one to know one."
***
22
I had a drug case where I was really disgusted. The defense attorney involved
has gone on to become a "civil rights" lawyer—at least, that's what he thinks. In mv
case, he was saying, "The police are doing horrible things to black folks! They're
arresting everybody, blah, blab, blah. How could you persecute this poor man?"
This child—I even remember the defendant's name, his name was Alphonso—was
arrested on an A2-class drug charge. The minimum sentence was six to life. I spent
a lot of time and effort on this case, because it seemed to me this child deserved
some consideration. He had no record; he had a wonderful family. It looked like
what happened was he was standing out in front of his building, where people that
he knows are hanging out. They are selling drugs, but he wants to feel that "he's
down with" whatever it is, or somebody bets him that he can't deliver. So the
undercovers come by. They make a deal with whoever the other people are. The
undercovers give the people the money, and Alphonso just takes a package and
gives it to them.
His attorney takes the attitude that this is the crime of the century. The police
officers are lying. I said, "I don't think so. I think these police officers are telling the
truth, and I'm going to make you the best offer I can make. You ought to try and
persuade your client to take this offer."
"No, no, no! He's innocent. He didn't do anything like that. You are
persecuting him."
Some undercovers you had to watch, but this undercover, I didn't have any
problem with. I even went to my supervisor and said, "This really is a nice kid. I
don't want to send him to jail for six to life. Would you please allow me make him
an offer of an A3?" So I went to battle for him, because he made a mistake, but why
don't we see if he can straighten up? I got my supervisor to agree that I could make
this offer. I went back and said, "This is the offer—take it! Please! I know that your
kid is nice. I'm convinced that he did this. But there is no reason to go to trial on this
and risk that much time in jail."
But the defense attorney was adamant, "No, no, no." He just assumed the
police officers were going to be white, and since it was up in a predominantly black
area of the city, he was going to get a jury that somehow was going to acquit this
child with no record. I'm going, "Don't do this. Do not do this." So he refused my
offer. And they went to trial. And they lost. And I still remember that mother
crying. She had to be carried out of the courtroom. That lawyer looked at me, and
there was nothing he could say. "I told you not to do this."
23
Everything is not a political trial—it just isn't. There was nothing out of the
ordinary in this case. The officers were plain old black officers doing their job. They
told me the truth. They got on the witness stand, and the jury believed them. What
can I tell you, you know? I'm still mad at him. I couldn't believe he would do that
rather than listen to me. People just think they can beat you at trial, just because
you're a woman or because you're black or because you're whatever you are. It's not
true all the time—or any of the time, actually. That was the low point for me.
It’s a terrible thing to send an innocent man to prison. How much better it is
to turn a guilty man loose than to unjustly convict an innocent man? I guess it is.
I've had some guys that I've made them deals where I thought they probably should
have walked out free men instead of doing short time, but the person representing
them just would not cooperate. Sometimes a public defender or a defense lawyer
will just try and bust your ass all the time. Frankly, you end up busting theirs back.
You get irritated, but you try not to take it out on the people they represent. The
defendant didn't know this asshole lawyer he hired from Adam's housecat. Maybe
the state just appointed this son of a bitch to represent him.
Should you penalize him for that? No.
Do we? Probably, sometimes. You try not to, but we're human. The other day
I made a guy plead straight-up to stealing his own car out of the repairman's garage.
It was just a piece of paper until we finally got into court, and I really looked at him.
He was just a weak-looking, nerdy kind of guy. Knowing what I knew about his
background, he probably didn't have much chance for anything but to be on the
fringe of life. He already had a felony conviction, and he damn sure has another one
now I felt kind of bad for him. If his lawyer had spent a little more time trying to
humanize that guy as opposed to busting my ass at every turn about whether or not I
could prove my case, he never would have got this.
I felt like maybe I'd been too hard on him. He got probation on this one, and
maybe he needed the structure of probation. I didn't feel terrible about the decisions
I was making. But as it was happening, I was thinking about the lawyer, and I knew
of two or three other lawyers, and if one of them had come to talk to me about that
case, there would have been a different result.
We get to court, and the lawyer hasn't put any effort into resolving the case.
When it did get resolved, I thought to myself, It's a shame. What happened wasn't
injustice. But just looking at the guy—he was a bit of a wreck. He at least needed
24
more attention than he got. I didn't feel bad enough to step up to the plate for him—
although I have done that on occasion, when I see somebody dropping the ball. You
try to jerk it back out of the jaws of whatever. Sometimes they won't do it. You'd be
amazed. Sometimes people are their own worst enemies.
There are many insanity-defense cases that I’ve looked at that I agreed right
off the bat—"This is a legitimate case for insanity." First of all, there is no reason
for the homicide. That would always be the first thing you'd notice. This was a
senseless act—there was no reason, no motive.
I had fun with one of them for a while, negotiating a plea with a defense
attorney. It was a man who had shot his upstairs neighbors. He kept a blanket over
his TV set because "they" were sending rays through the set that were affecting him.
He had a collection of 16mm movies that he was taking of all the cars that were
following him all the time. He had all this background as a pretty crazy guy, and his
attorney had all this psychiatric testimony. It was clear that this man had a serious
problem, that there really was no motive for these killings, and that he needed to be
hospitalized.
Along with all his other paranoid behavior, he also had been saving tap water.
He dated all of it on the day he had bottled it, and he had the little jars of water
tested, because he was convinced that people were trying to poison him.
In working out the negotiations with the defense attorney, who is a pretty
good friend of mine, I told him, "Look, I'm leaning toward your point of view in
this. I think we should offer you the plea and let him be committed, let him go to the
state hospital and be taken care of. But I have a little bit of hesitation. Are you
convinced that all of this is phony? All of this is in his head?"
"Absolutely," he says. “I’m totally convinced. There's no question about it.
He's paranoid. There's nothing wrong with all that tap water.”
"Fine," I said. "Pick out any bottle you want. You drink it, and you've got the
deal."
"Are you nuts? I'm not drinking this stuff."
"Oh, it might be poisoned then, huh?"
But we did work out a deal.
25
A defense attorney was trying to develop an insanity defense for this guy who
beat the shit out of a police officer who was giving him a ticket. So the attorney got
this guy from the big city who charged $600 an hour for the first hour, including
travel time, and then $450 for every hour after the first one. It was an enormous
amount of money. The guy basically showed up with two pictures. They looked like
composite CAT scans of the brain. One of them was bright colors, and the other one
had cool colors. One was a stressed brain and the other one was a "happy" brain.
I've got a psychologist, a local guy, on the stand, and he's referring to this "expert's"
happy brain/sad brain props.
I'm giving my argument to the jury, and I said, "Six hundred dollars. Lord."
Then I'd go on talking about the case, then I'd stop and say, "Six hundred dollars an
hour! Ever since he told me that, I've been trying to think of some other profession
that pays six hundred dollars an hour, and I can't think of anything that doesn't
require somebody to take off their clothes." I can't call him a whore, but I can make
that kind of comment. The judge starts laughing. The jury looks at me stone-faced.
I won the case, but I thought my line that allowed me to call a doctor a whore
in court was brilliant. But nobody laughed. If they did get it, they didn't let me
know.
We had a couple of whorehouses in town which I finally closed, simply
because whorehouses were a magnet for crime. I had the personal feeling that there
is no worse degradation of women than to turn them into whores. In any event, one
of the freelance girls was this attractive and very bright-looking gal. She got
arrested and went through reformation with a little backsliding. But a young man
who came from a very responsible family fell in love with this girl.
Her pimp resented this. So the two men had a classic Hollywood Wild West
shootout down on the avenue that was frequented by prostitutes. The pimp had a
revolver. The young man had a rifle—which doesn't really speak too well for the
intelligence of the pimp, who was killed in the shooting.
This case comes on my desk. Of course, I think the captain of detectives kind
of enjoyed the anguish that this prosecutor had in looking at this case. This state has
always had the theory that there are some people who, by the way they live, deserve
to be killed. We were way ahead of people who now talk about the battered-wife
syndrome. It was always considered appropriate for some women to shoot their
spouses if need be, when they'd had enough of it.
26
It's kind of hard to work up much jury sympathy for the death of a pimp,
right? Particularly when you have this young man who was a good fellow. At that
time, we still had a dueling statute, so I said, "By God, I'm going to charge this kid
with dueling." Nobody had filed a dueling charge, maybe ever. That statute worked
out very well. He got a minimal sentence and spent a short time in incarceration. As
we all expected, he rehabilitated and came back.
Unfortunately, after the press had a certain amount of fun, as you might
expect, with the dueling charge, the legislature wiped out the dueling statute. Part of
the reason I resented that was that we could have used that dueling statute quite a
bit. You didn't have to prove the intent to cause bodily harm or anything about the
defendant's state of mind as one must when involved in a homicide charge. It was
all very simple. Getting rid of that dueling statute was a mistake.
Tried a case of drunk-driving manslaughter: The accident occurred on the
defendant's side of the road. He hit a motorcycle in the lane that he was supposed to
be in and killed the motorcycle driver. The skid marks were such that if you
analyzed them and measured the vehicle that the defendant was driving, the ass of
his vehicle was in the oncoming lane, which meant that he just came back to his
lane from the wrong lane. The motorcyclist, in an attempt to get away from him,
had cut across into the other lane. Then the car had swerved back where he was
supposed to be, and there was nothing the motorcyclist could do.
I had a photograph of the car the defendant was driving. The perspective of
the car was of the car turning left. I needed the exact opposite. I needed somebody
to take the negative, flip it, and make me another picture—but it's hard, there's never
enough time, and I didn't get around to it till trial. I had a picture of the highway and
the skid marks. What I wanted to do was to hold the right-turning vehicle up to the
skid marks and show that he had to have been coming back from the wrong side of
the road. I'm in my office before going to court, and I held the picture up to the
window to see if you could see through it. That way I could get the reverse. It
looked like it would work okay for demonstration purposes.
Some cases just take on a life of their own. The community gets incensed at
somebody. This case was one of those. The courtroom was packed every day. The
defense lawyer was a very cagey, clever guy. Not as clever as he thinks, but his
weakness is that he thinks he's so much smarter than everyone else. I get to my
closing arguments that day, and I told the jury, "I didn't get this snapshot of the car
redone like I should have. I waited around until it was too late. In order for you to
27
see what I want you to see, you're going to have to look through the back of the
photograph while I hold it up to the light." I held that picture up, and the light shone
through the picture of the car sitting in the skid marks. It was so weird—the car was
almost ghostly. There was no noise in the courtroom. It was like I had a piece of
Twilight Zone in my hand. "If you look closely, you'll see the last thing the victim
ever saw in this world." They were so focused, rapt. It was an accident. I didn't
intend it to be that way, but it turned out to be one of the most powerful exhibits I've
ever held up to a jury. I can't tell you how spooky it was. The hair on my arms stood
up. He got sixteen years for that conviction.
We tried a guy here ten years or so ago for killing his wife. Circumstantial
case. Jury hung. He and his wife were separated, but we knew they were together
that night to look for a place for their five-year-old to start kindergarten. They went
to a couple of places to check out the schools, then they went back to the house
where she lived, and the kid went to bed. The child came down the next morning,
whenever kids get up, and his mother was laying there in the kitchen. She'd been
beaten to death. This guy said he was there, went home, and didn't know anything.
We tried him anyway, the jury hung, and the judge granted a motion for acquittal.
He was a judge that, in my opinion, just liked to clear his docket.
About six or eight years go by. This guy is a free man. I get a call from a
friend who is a prosecuting attorney in Missoula, Montana. "Hey, you know a guy
named John Krassler?"
"John Krassler. Let me think about that. John Krassler? We have so many
cases here."
John Krassler had walked into Sandy's office out west one day, and he asked
if he could talk to the prosecutor. His son was now thirteen or fourteen years old. He
intimated to Sandy that he had murdered his wife back here. Sandy didn't know if
this guy was crazy or what. So he calls me, and I say, "Oh yeah. I know all about
that guy." I told Sandy what had happened. I said, "Sandy, can you get him back?"
"Yeah.''
"Get him back. Read him his Miranda rights, even though he's been
acquitted. Try and tape it, and get a statement from him because he took the stand in
his own defense and denied the murder, so if we can get him at least with perjury it
would be something."
28
Sandy did it. He had the deputy sheriff there. We got the statement, brought
him back on the perjury charge. The unique thing that was done—we charged him
with felonious assault with his son as the victim, the theory being that when he beat
his wife to death, he knew that the son would come down and find her, therefore the
psychological impact he had had was in essence an assault. We convicted him on
that, and he's got a sentence where he'll have to do ten to thirteen years, which isn't a
whole lot less than he would have done for the homicide.
I had a friend of mine I play fast-pitch softball with—a little younger than I
was, maybe by ten years. I didn't know much about him except that he was a very
interesting guy. Probably had a high school education. I didn't believe he had any
money. Came from no money. I knew he went to a fast-pitch tournament for guys
forty and over in Las Vegas three or four years ago. A couple older guys—sixtyfive or seventy years old, friends of his—came along as coaches. I found out later
that he paid for their tickets and he paid for their rooms, because they didn't have
the money to make the trip on their own. Although I knew he had a heart of gold,
what I didn't know until after he died was that he was a self-made millionaire. I
knew he'd work at the Dairy Queen and I knew he had these odd properties that he'd
fix up and paint, do all the work himself. As time went on, he became very
successful. He and his sister ended up with a health care center for elderly people.
Home care thing. He was just in everything.
He's fixing up one of his houses that he rented out, and some guys were next
door. He was their landlord, too. They decided that the landlord's probably got
money. One guy went over and killed him. Didn't get a cent. He had a wallet in his
truck. There was twenty bucks in his wallet.
But all these guys in the house were ne'er-do-wells. Jesus Christ, everybody's
on drugs; everybody else is drunk. We had a real mess. We were convinced that we
knew who did it. We had one guy who was going to be our key witness who told us
that the guy we suspected committed the murder. But then the witness failed the
trace metal detector test. That meant my witness had recently fired a weapon. He
might just as easily have been the murderer as the suspect. Of course, all these
people had guns. They all have guns—it's just a fact of life. The guy who was a
suspect, we didn't get hold of him until three or four days later. So, of course, his
test doesn't mean anything.
This guy's wife is decimated. I could look at it objectively and say, "Hey, I
believe he did it, but I don't think we're going to win." But I couldn't tell her that. If
29
a defense attorney takes a certain tactic, we could get manslaughter, but we can't
count on it. None of our witnesses are any good. We got some critical evidence that
helps us, but I just got worried to death that the jury is going to look at these
witnesses and say they're just criminals, that the evidence was probably planted.
Proof beyond a reasonable doubt means they got to believe these people beyond a
reasonable doubt to put this guy in the electric chair. And there's a real good
attorney on the other side.
When this thing first happened and I got the file, one of the policemen who
was a friend of mine on the homicide squad said, "Mike, how we got this guy is we
got a tip about where he was through the FBI. We worked with the FBI, because
they knew he was going to be driving from Florida to Maine. That night we grabbed
him, one of the FBI guys said something about a tape. Somebody has a tape of the
defendant admitting the murder."
So I call the FBI guys. My friend with them says, "I don't know if there is any
truth to it. You've got to keep this quiet for a while, but we knew about your suspect
through a paid informant The paid informant told me that there was some sort of a
tape, but, Mike, I never pay any attention to these guys."
"I need to talk to this guy," I said. "Give me the guy's name."
When my FBI contact told me the informant's name, I remembered the guy.
I'd tried him for murder twenty-something years ago. The only reason I remember
him is that he was a juvenile at the time, and we held him such a long time as a
juvenile that he was tried in adult court, and his defense was arguing speedy trial.
So anyway, they gave me his number
These guys are not bankers. They don't keep regular hours. They have beeper
numbers. It takes me a while, but I finally get hold of the guy. He's going to go back
with me, doesn't want to talk then. He gets back with me eventually. He said, "I
heard there was a tape, but there wasn't. I thought it had been destroyed, and it was.
The person who had it destroyed it, and there is no tape."
I'm thinking, If there really is a tape, it's never been destroyed, because
somebody in that group of people knows its value. This is something that a
prosecutor or a policeman would want; therefore, hang on to it. If it ever existed, I
found it hard to believe that it had been destroyed—at least intentionally.
30
Okay. Two or three months go by, and this case isn't getting any better. So I
call this guy again. We still had never met. Finally, I convince him to come in. He
comes in one night at the office, and he has a buddy with him. Honest to God, both
of these guys are as big as houses, with arms like barrels from twenty years of
lifting weights in prison. I am sitting there a little wary, but I'm getting along with
them okay. I don't know who this other guy is. So the first guy is sitting there
talking to me, and he says, "Okay, there is a tape."
After the shooting, this kid who shot my softball buddy took off and stayed
with these people who are twenty years older than him and who are into much
bigger things than he has ever imagined. In the course of it, there was a woman
there who put a tape recorder in her purse and sat down and talked to the kid. The
whole tape didn't last but three minutes, maybe four, something like that. Of course,
it's crackling, and both of them get so excited, they talk in a high voice with accents,
so most of it is hard to decipher. Plus, it's muffled inside the purse. But basically she
says, "What happened?" And he talks about killing this guy. I haven't heard it, but
these two guys are willing to give it to me. But I've got to do something for the guy
I'm talking to, something for the friend he brought, and something for a guy in
prison.
"Look," I said. "I can do something for you. I'll talk to the judge, I can do
that. For this guy here, I'm going to have to talk to the police department. I can't do
anything for the guy in prison—I don't have that authority—but I will write a letter
to the governor." So we had this long drawn out negotiation. It was reasonable. In
fact, the one guy just wanted off probation. And the judge readily agreed to that. He
had a three-year sentence in prison, he did two years, and they shocked him out. He
only had a year to go, and he’d done three or four months of that. He just didn't
want to keep coming down every month to the courthouse to check in with the
probation officer. It was simple. The other guy was involved with a drug deal, and
the cops had already told him, "You turn three cases for us, and we won't charge
you." He said, "Will this count as a case? This has nothing to do with the drugs and
all that, but I want this to count in my three cases." So I called the police, and they
said okay. The guv in prison, I couldn't help. But we tried.
Finally, they brought me the tape. I'm telling you, it was great. I couldn't
believe it. This case went from a total loser, a not guilty, to "If we can get this tape
in, it should be winner."
31
It took another four months. The defendant fired his attorneys and hired new
ones, but he ended up pleading to life with no parole hearing until he'd completed
thirty-three years of his sentence. He'll probably do forty-five years, if he lives that
long, and he probably won't.
I prosecuted a murder case one time in which this man had been shot with a
pistol. We thought we knew who did it, but we weren't sure. We thought we knew
who helped out with the murder. So we got the accomplice to come down to the
state attorney's office, and ran him on a polygraph. I'm sitting there watching the
polygraph machine, and we get around to the golden question: "Do you know where
the gun is?" This guy literally knocked the needle off the machine. It was just
incredible. It went ker-wham! Everybody got a little ink on them. After the
polygraph was over, I talked to the examiner and the examiner said, "You know, I
really don't think this guy had anything to do with it. But I do believe that he knows
where that gun is."
I went up to my office and had my secretary type up an indictment for firstdegree murder with this guy's name on it and a grant of immunity with this guy's
name on it. So I brought him up to the office, and I said, "You know, I'm in a tough
situation because you flunked the polygraph exam, and we're going to have to make
some decision about what to do with you. Rather than me make this decision, I'm
going to let you make it for me. I've got two pieces of paper here. One is an
indictment for first-degree murder. The other one is a grant of immunity. I want the
gun. You pick out which of these two pieces of paper you want." We had the gun in
about thirty minutes. Sometimes you got to do what you got to do. I like to give
people an option. They can choose whichever one they like.
I had a guy who killed this young boy with a sawed-off .22 rifle at a family
gathering. He had a fight and a screaming match between him and his wife, so he
runs and gets this gun. The kid is sleeping on the couch. This guy is pointing the
gun at the head of this child and screaming with his wife and finally pulls the
trigger. Gets up on the witness stand and says that it was all an accident. "It just
went off by accident."
"Show me how that's possible," I said, and I handed him the rifle in court.
This particular rifle was a bolt-action single-shot .22. The first thing you have to do
is open the bolt and put a bullet in, close the bolt, and ram it down. Then you had to
pull a cocking lever. It was a really old weapon, and you had to really pull the
trigger. He claimed that he never pulled the cocking lever. "Never did." I handed it
32
to him and said, "Operate that bolt and pull that trigger as many times as you want
for this jury, and let's hear the click." He did it four or five times, and it didn't fire.
"How many more times do you want to try it?" He had nothing to say. I took the
weapon away from him and put it down.
You get these people with a weird story of how the gun went off. I had one of
them claim that he took the gun out of his pocket, an automatic. He was holding it
over the top of the receiver, and he just hit the fellow over the head with the butt. It
happened to go off and kill the guy. "Let's see. Came down and hit him. It fired.
Never had his hand on the trigger at all." First of all, it had a safety, so it couldn't
fire without the trigger being pulled. Number two, if it had gone off that way his
hand would have been burned with the gases; the slide would have bitten him.
Never got a mark on his hand.
I love the ones who say, "I never pulled the trigger." What most people don't
realize is that a revolver has a hammer-block safety in it. If you're not pulling the
trigger all the way back, the hammer will drop, but it won't fire. The firing pin can't
hit that shell unless you're holding the trigger back. If you hit it with a brick, it won't
fire. I would have people demonstrate that. You'd take a pencil and drop it down the
barrel and cock it and hit it. The hammer falls, but the pencil never moves. If you
really pull the trigger, it will knock the pencil right out the end of the barrel. But a
lot of people don't think there is a safety in a revolver. So they have this story about
how this went off accidentally. It dropped and fell and went off.
I always had fun with the weapons. I would hand them to the defendant. Let
him have it in his hands. The deputies would get upset when I'd give them a butcher
knife.
We had prison murders at the state prison here in town. Those defendants
were always very cooperative. I'd have them come down: "Show me, here on the
floor of the courtroom, how you were wrestling around with this guy and you're
claiming self-defense in his death." Pretty soon they're jumping up and down and
getting into the whole scene and how bad the fight went back and forth. Before you
know it, they've demonstrated exactly how they stabbed the other guy, who was
unarmed.
***
33
I just have a hard time with folks who get attached to a legal pad in a
courtroom and who read almost everything, read all of their questions. They can't
just stand there on their own two feet, walk around, remember, and listen to the
answers to the questions. Too many of them haven't even heard the answer to the
first question, and they're asking their next one. They just don't listen. They get too
involved with their own performance instead of paying attention to the witness.
When you get down to final arguments, you can try to be the star, but not during
cross-examination. Some of the greatest questions in the world are: "What happened
next?" "Then what did you do?" The question isn't anything. You want that answer
to come out in court. But it's hard to instill the patience and the ability to listen in
some of these young prosecutors if they haven't really seen a lot of cases and spent
the time watching other people try cases. Many times, you can sense that a witness
is going to say something more. Just let them. See what happens.
I've had defendants on the stand on more than one occasion where the
defense attorney is trying to soften the criminal record of the defendant. "Now,
you've had convictions in the past, haven't you?" As soon as they start to talk about
it, I would reach in my file and pull out some documents and look at them while the
guy answered. He'd say, "Well, I've had a few." And I'd give him a look. He'd
mention part of his record, and I'd turn pages. "And that's all." I'd stop and look up
in disbelief. "Oh, and then there was that other on ..." They'd start going through
their entire record. I've had fun with those little tricks.
Many times, you find a defendant on the stand makes a really bad witness for
himself. They then have the opportunity to come out with more incredible
statements that will really hurt themselves.
I had one who was being examined by his own defense attorney. They were
trying to sell their version of this entire story: This parolee who had just gotten out
of prison snuck into this bar on a cold winter night, just to get in out of the snow and
the sleet and the rain, just to be protected. There was nowhere else he could go. The
defense attorney leads his client through this whole thing, and he finally says, "And
why did you break in to that bar?"
"To steal the money."
Of course, I didn't cross-examine him at all. I didn't want to destroy his
credibility. I didn't want to show that he had a terrible, horrible record, and you
34
couldn't believe a word he said. I wanted the jury to buy that story that he broke into
the bar to steal that money.
A man murdered his wife of twenty-five years—beat her to death. Then he
went off to see the girlfriend he'd found at his job with the Department of
Transportation. The two of them went to her son's Little League baseball game. The
guy drove home, stuffed his dead wife in the back of their minivan, and drove up to
the hospital. Maybe he had some idea he could deliver her to the emergency room
and everything would look accidental, but he chickened out on that one and never
quite made it to the emergency room. He put the car in the parking lot and left. The
body wasn't found until days later, when passersby began to notice the odor.
He hires a big defense attorney. Months earlier, this attorney had a case
where he defended a guy who murdered his wife and got a not guilty. I feel certain
the publicity surrounding that case got him hired for this one. The guy pays this
lawyer a ton of money. The defense star comes down with his partner and cocounsel. They say to me, "Hey, man, what's the deal going to be?" “He can plead to
second-degree murder,” I said, "and according to the sentencing guidelines, he'll
probably get twenty-two years."
"You're out of your mind," they said. "How about twelve to fifteen years?"
"No. The grand jury indicted him for first degree, the family is agreeable to
second, but I'm not going lower than twenty-two years."
They say no, and we go to trial. The case is getting lots of media attention.
My guess is that the defendant's attorney was calling them.
After I proved my case, the defendant took the stand and admitted doing it,
but he said it was self-defense. The problem is there were four huge, distinct blows
to the woman's head. So I said, "Mr. Hiller, after the first blow to her head, when
she was on her knees, did you still feel like your life was in danger? After the
second blow, was she still threatening you with bodily harm?" I crucified him in
cross-examination. It was ugly. I'd love to read it again myself. "Mr. Hiller, when
you left your girlfriend's house, did you kiss her goodnight?" He didn't answer me,
or he would dodge the question. So I had to keep saying over and over again,
"Answer my question, Mr. Hiller. Did you kiss your girlfriend goodnight?"
35
Finally, he croaks out, "Yes." It was the perfect picture. He kisses her
goodnight, then hurries home to stuff the body of his dead wife into the back of the
minivan to get rid of the evidence.
The jury came back in eighteen minutes. Guilty, first-degree murder. The
defense co-counsel was across the street at Little Michael's getting a sandwich. He
missed the verdict entirely.
12.4. Example: Free Advice from a PD (as posted on
Craigslist.com)
First, let me say I love my job and it is a privilege to work for my clients. I
wish I could do more for them. That being said, there are a few things that need to be
discussed.
You have the right to remain silent. So SHUT THE FUCK UP. Those cops are
completely serious when they say your statements can and will be used against you.
There’s just no need to babble on like it’s a drink and dial session. They are just
pretending to like you and be interested in you. When you come to court, consider
your dress. If you’re charged with a DUI, don’t wear a Budweiser shirt. If you have
some miscellaneous drug charge, think twice about clothing with a marijuana leaf on
it or a t-shirt with the “UniBonger” on it. Long sleeves are very nice for covering
tattoos and track marks. Try not to be visibly drunk when you show up.
Consider bathing and brushing your teeth. This is just as a courtesy to me who
has to stand by you in court. Smoking 5 generic cigarettes to cover up your bad
breath is not the same as brushing. Try not to cough and spit on me while you speak
and further transmit your strep, flu, and hepatitis A through Z.
I’m a lawyer, not your fairy godmother. I probably won’t find a loophole or
technicality for you, so don’t be pissed off. I didn’t beat up your girlfriend, steal that
car, rob that liquor store, sell that crystal meth, or rape that 13-year-old. By the time
we meet, much of your fate has been sealed, so don’t be too surprised by your
limited options and that I’m the one telling you about them.
Don’t think you’ll improve my interest in your case by yelling at me, telling me
I’m not doing anything for you, calling me a public pretender or complaining to my
supervisor. This does not inspire me—it makes me hate you and want to work with
you even less.
36
It does not help if you leave me nine messages in 17 minutes. Especially if you
leave them all on Saturday night and early Sunday morning. This just makes me
want to stab you in the eye when we finally meet.
For the guys: Don’t think I’m amused when you flirt or offer to “do me.” You
can’t successfully rob a convenience store, forge a signature, pawn stolen
merchandise, get through a day without drinking, control your temper, or talk your
way out of a routine traffic stop. I figure your performance in other areas is just as
spectacular, and the thought of your shriveled unwashed body near me makes me
want to kill you and then myself.
For the girls: I know your life is rougher than mine and you have no resources.
I’m not going to insult you by suggesting you leave your abusive pimp/boyfriend,
that you stop taking meth, or that your stop stealing shit. I do wish you’d stop
beating the crap out of your kids and leaving your needles out for them to play with
because you aren’t allowing them to have a life that is any better than yours.
For the morons: Your second grade teacher was right—“neatness counts.” Just
clean up! When you rob the store, don’t leave your wallet. When you drive into the
front of the bank, don’t leave the front license plate. When you rape/assault/rob a
woman on the street, don’t leave behind your cell phone. After you abuse your
girlfriend, don’t leave a note saying that you’re sorry.
If you are being chased by the cops and you have dope in your pocket, dump it.
These cops are not geniuses. They are out of shape and want to go to Krispy Kreme
and most of all go home. They will not scour the woods or the streets for your 2
grams of meth. But they will check your pockets, idiot. 2 grams is not worth six
months of jail.
Don’t be offended and say you were harassed because the security was
following you all over the store. Girl, you were wearing an electronic ankle bracelet
with your mini skirt. And you were stealing. That’s not harassment, that’s good store
security.
And those kids you churn out: how is it possible? You’re out there breeding
like feral cats. What exactly is the attraction of having sex with other meth addicts?
You are lacking in the most basic aspects of hygiene, deathly pale, greasy, greytoothed, twitchy and covered with open sores. How can you be having sex? You
make my baby-whoring crackhead clients look positively radiant by comparison.
“I didn't put it all the way in.” Not a defense.
“All the money is gone now.” Not a defense.
37
“The bitch deserved it.” Not a defense.
“But that dope was so stepped on, I barely got high.” Not a defense.
“She didn't look thirteen.” Possibly a defense; it depends.
“She didn't look six.” Never a defense, you just need to die.
For those rare clients that say thank-you, leave a voice mail, send a card or
flowers, you are very welcome. I keep them all, and they keep me going more than
my pitiful COLA increase.
For the idiots who ask me how I sleep at night: I sleep just fine, thank you.
There's nothing wrong with any of my clients that could not have been fixed with
money or the presence of at least one caring adult in their lives. But that window has
closed, and that loss diminishes us all.
12.5.
Example: ABA Formal Opinion 06-441, Ethical
Obligations of Lawyers Who Represent Indigent
Criminal Defendants When Excessive Caseloads
Interfere with Competent and Diligent Representation
(American Bar Association Standing Committee on
Ethics
and
Professional
Responsibility)
All lawyers, including public defenders and other lawyers who, under court
appointment or government contract, represent indigent persons charged with
criminal offenses, must provide competent and diligent representation. If workload
prevents a lawyer from providing competent and diligent representation to existing
clients, she must not accept new clients. If the clients are being assigned through a
court appointment system, the lawyer should request that the court not make any
new appointments. Once the lawyer is representing a client, the lawyer must move
to withdraw from representation if she cannot provide competent and diligent
representation. If the court denies the lawyer’s motion to withdraw, and any
available means of appealing such ruling is unsuccessful, the lawyer must continue
with the representation while taking whatever steps are feasible to ensure that she
will be able to competently and diligently represent the defendant.
Lawyer supervisors, including heads of public defenders’ offices and those
within such offices having intermediate managerial responsibilities, must make
reasonable efforts to ensure that the other lawyers in the office conform to the Rules
38
of Professional Conduct. To that end, lawyer supervisors must, working closely with
the lawyers they supervise, monitor the workload of the supervised lawyers to
ensure that the workloads do not exceed a level that may be competently handled by
the individual lawyers.
In this opinion,1 we consider the ethical responsibilities of lawyers, whether
employed in the capacity of public defenders or otherwise, who represent indigent
persons charged with criminal offenses, when the lawyers’ workloads prevent them
from providing competent and diligent representation to all their clients. Excessive
workloads present issues for both those who represent indigent defendants and the
lawyers who supervise them.2
Ethical responsibilities of a public defender3 in regard to individual workload
Persons charged with crimes have a constitutional right to the effective
assistance of counsel.4 Generally, if a person charged with a crime is unable to
afford a lawyer, he is constitutionally entitled to have a lawyer appointed to
represent him.5 The states have attempted to satisfy this constitutional mandate
through various methods, such as establishment of public defender, court
appointment, and contract systems.6 Because these systems have been created to
1
This opinion is based on the Model Rules of Professional Conduct as amended by the ABA House of
Delegates through August 2003. The laws, court rules, regulations, rules of professional conduct and
opinions promulgated in the individual jurisdictions are controlling.
2
For additional discussion of the problems presented by excessive caseloads for public defenders, see
“Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice,” prepared by the
American Bar Association’s Standing Committee on Legal Aid and Indigent Defendants 29 (ABA
2004), available at http://www.abanet.org/legalservices/sclaid/defender/brokenpromise/fullreport.pdf
(last visited June 21, 2006).
3
The term “public defender” as used here means both a lawyer employed in a public defender’s office
and any other lawyer who represents, pursuant to court appointment or government contract, indigent
persons charged with criminal offenses.
4
U.S. Const. amends. VI & XIV.
5
The United States Supreme Court has interpreted the Sixth Amendment to require the appointment
of counsel in any state and federal criminal prosecution that, regardless of whether for a misdemeanor
or felony, leads or may lead to imprisonment for any period of time. See generally, Alabama v.
Shelton, 535 U.S. 654, 662 (2002); Strickland v. Washington, 466 U.S. 668, 684-86 (1984); Scott v.
Illinois, 440 U.S. 367, 373-74 (1979); Argersinger v. Hamlin, 407 U.S. 25, 30-31 (1972); Gideon v.
Wainwright, 372 U.S. 335, 342-45 (1963); Johnson v. Zerbst, 304 U.S. 458. 462-63 (1938).
6
Most states deliver indigent defense services using a public defender’s office (eighteen states) or a
combination of public defender, assigned counsel, and contract defender (another twenty-nine states),
according to the Spangenberg Group, which developed a report on behalf of the ABA Standing
Committee on Legal Aid and Indigent Defendants. See The Spangenberg Group, “Statewide Indigent
Defense Systesm: 2005,” available at
39
provide representation for a virtually unlimited number of indigent criminal
defendants, the lawyers employed to provide representation generally are limited in
their ability to control the number of clients they are assigned. Measures have been
adopted in some jurisdictions in attempts to control workloads,7 including the
establishment of procedures for assigning cases to lawyers outside public defenders’
offices when the cases could not properly be directed to a public defender, either
because of a conflict of interest or for other reasons.
Model Rules of Professional Conduct 1.1, 1.2(a), 1.3, and 1.4 require lawyers
to provide competent representation, abide by certain client decisions, exercise
diligence, and communicate with the client concerning the subject of
representation.8 These obligations include, but are not limited to, the responsibilities
to keep abreast of changes in the law; adequately investigate, analyze, and prepare
http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/statewideinddefsystems2005.p
df (last visited June 21, 2006).
7
See generally, National Symposium on Indigent Defense 2000, Redefining Leadership for Equal
Justice, A Conference Report (U.S. Dep’t of Justice, Bureau of Justice Assistance, Wash. D.C.) 3
(June 29-30, 2000), available at http://www.ojp.usdoj.gov/indigentdefense/symposium.pdf (last
visited June 21, 2006) (common problem in indigent defense delivery systems is that “lawyers often
have unmanageable caseloads (700 or more in a year)”).
8
Rule 1.1(a) provides that “[a] lawyer shall provide competent representation to a
client. Competent representation requires the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation.”
Rule 1.2(a) states:
[A] lawyer shall abide by a client’s decisions concerning the objectives of representation and,
as required by Rule 1.4, shall consult with the client as to the means by which they are to be
pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to
carry out the representation. A lawyer shall abide by a client’s decision whether to settle a
matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation
with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client
will testify.
Rule 1.3 states that “[a] lawyer shall act with reasonable diligence and promptness in representing
a client.”
Rule 1.4(a) and (b) states:
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which
the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client’s
objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer’s conduct
when the lawyer knows that the client expects assistance not permitted by the Rules
of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to
make informed decisions regarding the representation.
40
cases; act promptly on behalf of clients; communicate effectively on behalf of and
with clients; control workload so each matter can be handled competently; and, if a
lawyer is not experienced with or knowledgeable about a specific area of the law,
either associate with counsel who is knowledgeable in the area or educate herself
about the area. The Rules provide no exception for lawyers who represent indigent
persons charged with crimes.9
Comment 2 to Rule 1.3 states that a lawyer’s workload “must be controlled
so that each matter may be handled competently.”10 The Rules do not prescribe a
formula to be used in determining whether a particular workload is excessive.
National standards as to numerical caseload limits have been cited by the American
Bar Association.11 Although such standards may be considered, they are not the sole
factor in determining if a workload is excessive. Such a determination depends not
only on the number of cases, but also on such factors as case complexity, the
availability of support services, the lawyer’s experience and ability, and the
9
See ABA Formal Opinion Op. 347 (Dec. 1, 1981) (Ethical Obligations of Lawyers to Clients of
Legal Services Offices When Those Offices Lose Funding), in FORMAL AND INFORMAL ETHICS
OPINIONS, FORMAL OPINIONS 316-348, INFORMAL OPINIONS 1285-1495 at 139 (ABA 1985) (duties
owed to existing clients include duty of adequate preparation and a duty of competent representation);
ABA Informal Op. 1359 (June 4, 1976) (Use of Waiting Lists or Priorities by Legal Service Officer),
id. at 237 (same); ABA Informal Op. 1428 (Sept. 12, 1979) (Lawyer-Client Relationship Between the
Individual and Legal Services Office: Duty of Office Toward Client When Attorney Representing
Him (Her) Leaves the Office and Withdraws from the Case), id. at 326 (all lawyers, including legal
services lawyers, are subject to mandatory duties owed by lawyers to existing clients, including duty
of adequate preparation and competent representation). See also South Carolina Bar Ethics Adv. Op.
04-12 (Nov. 12, 2004) (all lawyers, including public defenders, have ethical obligation not to
undertake caseload that leads to violation of professional conduct rules).
The applicability of Rules 1.1, 1.3, and 1.4 to public defenders and/or prosecutors has been
recognized by ethics advisory committees in at least one other state. See Va. Legal Eth. Op. 1798
(Aug. 3, 2004) (duties of competence and diligence contained within rules of professional conduct
apply equally to all lawyers, including prosecutors).
10
Principle 5 of The Ten Principles of a Public Defense Delivery System specifically addresses the
workload of criminal defense lawyers:
Defense counsel’s workload is controlled to permit the rendering of quality representation.
Counsel’s workload, including appointed and other work, should never be so large as to
interfere with the rendering of quality representation or lead to the breach of ethical
obligations, and counsel is obligated to decline appointments above such levels. National
caseload standards should in no event be exceeded, but the concept of workload (i.e.,
caseload adjusted by factors such as case complexity, support services, and an attorney’s
nonrepresentational duties) is a more accurate measurement.
Report to the ABA House of Delegates No. 107 (adopted Feb. 5, 2002), available at
http://www.abanet.org/legalservices/downloads/sclaid/10principles.pdf (last visited June 21, 2006)
(emphasis in original).
11
Id.
41
lawyer’s nonrepresentational duties.12 If a lawyer believes that her workload is such
that she is unable to meet the basic ethical obligations required of her in the
representation of a client, she must not continue the representation of that client or,
if representation has not yet begun, she must decline the representation.13
A lawyer’s primary ethical duty is owed to existing clients.14 Therefore, a
lawyer must decline to accept new cases, rather than withdraw from existing cases,
if the acceptance of a new case will result in her workload becoming excessive.
When an existing workload does become excessive, the lawyer must reduce it to the
extent that what remains to be done can be handled in full compliance with the
Rules.
When a lawyer receives appointments directly from the court rather than as a
member of a public defender’s office or law firm that receives the appointment, she
should take appropriate action if she believes that her workload will become, or
already is, excessive. Such action may include the following:

requesting that the court refrain from assigning the lawyer any new cases
until such time as the lawyer’s existing caseload has been reduced to a level that she
is able to accept new cases and provide competent legal representation; and

if the excessive workload cannot be resolved simply through the court’s not
assigning new cases, the lawyer should file a motion with the trial court requesting
permission to withdraw from a sufficient number of cases to allow the provision of
competent and diligent representation to the remaining clients.15
12
Id. See also Attorney Grievance Comm’n of Maryland v. Ficker, 706 A.2d 1045, 1051-52 (1998)
(supervising lawyer violated Rule 5.1 by assigning too many cases to supervised lawyer, assigning
cases day before trial, and assigning cases too complex for supervised lawyer’s level of experience
and ability).
13
Rule 1.16(a) states that “a lawyer shall not represent a client or, where representation has begun,
shall withdraw from the representation of a client if the representation will result in violation of the
Model Rules of Professional Conduct or other law.”
14
See ABA Formal Opinion Op. 96-399 (Jan. 18, 1996) (Ethical Obligations of Lawyers Whose
Employers Receive Funds from the Legal Services Corporation to their Existing and Future Clients
When Such Funding is Reduced and When Remaining Funding is Subject to Restrictive Conditions),
in FORMAL AND INFORMAL ETHICS OPINIONS 1983-1998 at 369 (ABA 2000); ABA Formal Opinion
Op. 347, supra note 9.
15
Whenever a lawyer seeks to withdraw from a representation the client should be notified, even if
court rules do not require such notification. See Rule 1.4.
42
If the lawyer has sought court permission to withdraw from the representation
and that permission has been denied, the lawyer must take all feasible steps to
assure that the client receives competent representation.
When a lawyer receives appointments as a member of a public defender’s
office or law firm, the appropriate action to be taken by the lawyer to reduce an
excessive workload might include, with approval of the lawyer’s supervisor:

transferring non-representational responsibilities within the office, including
managerial responsibilities, to others;

refusing new cases;16 and

transferring current case(s) to another lawyer whose workload will allow for
the transfer of the case(s).17
If the supervisor fails to provide appropriate assistance or relief, the lawyer
should continue to advance up the chain of command within the office until either
relief is obtained or the lawyer has reached and requested assistance or relief from
the head of the public defender’s office.
In presenting these options, the Committee recognizes that whether a public
defender’s workload is excessive often is a difficult judgment requiring evaluation
of factors such as the complexity of the lawyer’s cases and other factors.18 When a
public defender consults her supervisor and the supervisor makes a conscientious
effort to deal with workload issues, the supervisor’s resolution ordinarily will
16
It should be noted that a public defender’s attempt to avoid appointment or to withdraw from a case
must be based on valid legal grounds. Rule 6.2(a) provides, in pertinent part, that “[a] lawyer shall not
seek to avoid appointment by a tribunal to represent a person except for good cause, such as
representing the client is likely to result in violation of the Rules of Professional Conduct or other
law.” (Emphasis added). Therefore, a public defender should not claim an excessive workload in an
attempt to avoid new cases or to withdraw from current cases unless good cause objectively exists.
17
It is important to note that, for purposes of the Model Rules, a public defender’s office, much like a
legal services office, is considered to be the equivalent of a law firm. See Rule 1.0(c). Unless a court
specifically names an individual lawyer within a public defender’s office to represent an indigent
defendant, the public defender’s office should be considered as a firm assigned to represent the client;
responsibility for handling the case falls upon the office as a whole. See ABA Informal Op. 1428,
supra note 9 (legal services agency should be considered firm retained by client; responsibility for
handling caseload of departing legal services lawyer falls upon office as whole rather than upon
lawyer who is departing). Therefore, cases may ethically be reassigned within a public defender’s
office.
18
See note 12, supra, and accompanying text.
43
constitute a “reasonable resolution of an arguable question of professional duty” as
discussed in Rule 5.2(b).19 In those cases where the supervisor’s resolution is not
reasonable, however, the public defender must take further action.20
Such further action might include:

if relief is not obtained from the head of the public defender’s office,
appealing to the governing board, if any, of the public defender’s office;21 and

if the lawyer is still not able to obtain relief,22 filing a motion with the trial
court requesting permission to withdraw from a sufficient number of cases to allow
the provision of competent and diligent representation to the remaining clients.23
If the public defender is not allowed to withdraw from representation, she
must obey the court’s order while taking all steps reasonably feasible to insure that
her client receives competent and diligent representation.24
Ethical responsibility of a lawyer who supervises a public defender
Rule 5.1 provides that lawyers who have managerial authority, including
those with intermediate managerial responsibilities, over the professional work of a
19
See Comment [2].
See, e.g., Atty. Grievance Comm’n of Maryland v. Kahn, 431 A.2d 1336, 1352 (1981) (“Obviously,
the high ethical standards and professional obligations of an attorney may never be breached because
an attorney’s employer may direct such a course of action on pain of dismissal. . . .”)
21
See Michigan Bar Committee on Prof. & Jud. Eth. Op. RI-252 (Mar. 1, 1996) (in context of civil
legal services agency, if subordinate lawyer receives no relief from excessive workload from lawyer
supervisor, she should, under Rule 1.13(b) and (c), take the matter to legal services board for
resolution).
22
Rule 5.2 makes clear that subordinate lawyers are not insulated from violating the Rules of
Professional Conduct and suffering the consequences merely because they acted in accordance with a
supervisory lawyer’s advice or direction unless it was in regard to “an arguable question of
professional duty.”
23
A public defender filing a motion to withdraw under these circumstances should provide the court
with information necessary to justify the withdrawal, while being mindful of the obligations not to
disclose confidential information or information as to strategy or other matters that may prejudice the
client. See Rule 1.16 cmt. 3.
24
Notwithstanding the lawyer’s duty in this circumstance to continue in the representation and to
make every attempt to render the client competent representation, the lawyer nevertheless may pursue
any available means of review of the court’s order. See Iowa Supreme Court Bd. of Prof. Ethics &
Conduct v. Hughes, 557 N.W.2d 890, 894 (Iowa 1996) (“ignoring a court order is simply not an
appropriate step to test the validity of the order under our Code of Professional Responsibility”); Utah
Bar Eth. Adv. Op. 107 (Feb. 15, 1992) (if grounds exist to decline court appointment, lawyer should
not disobey order but should seek review by appeal or other available procedure).
20
44
firm or public sector legal agency or department shall make reasonable efforts to
ensure that the other lawyers in the agency or department conform to the Rules of
Professional Conduct. Rule 5.1 requires that lawyers having direct supervisory
authority take reasonable steps to ensure that lawyers in the office they supervise
are acting diligently in regard to all legal matters entrusted to them, communicating
appropriately with the clients on whose cases they are working, and providing
competent representation to their clients. As an essential first step, the supervisor
must monitor the workloads of subordinate lawyers to ensure that the workload of
each lawyer is appropriate. This involves consideration of the type and complexity
of cases being handled by each lawyer; the experience and ability of each lawyer;
the resources available to support her, and any non-representational responsibilities
assigned to the subordinate lawyers.
If any subordinate lawyer’s workload is found to be excessive, the supervisor
should take whatever additional steps are necessary to ensure that the subordinate
lawyer is able to meet her ethical obligations in regard to the representation of her
clients. These might include the following:

transferring the lawyer’s non-representational responsibilities, including
managerial responsibilities, to others in the office;

transferring case(s) to another lawyer or other lawyers whose workload will
allow them to provide competent representation;25

if there are no other lawyers within the office who can take over the cases
from which the individual lawyer needs to withdraw, supporting the lawyer’s efforts
to withdraw from the representation of the client;26 and finally,

if the court will not allow the lawyer to withdraw from representation,
providing the lawyer with whatever additional resources can be made available to
assist her in continuing to represent the client(s) in a manner consistent with the
Rules of Professional Conduct.
25
See note 17, supra.
See In re Order on Prosecution of Criminal Appeals by Tenth Judicial Circuit Public Defender, 561
So.2d 1130, 1138-39 (Fla. 1990) (in context of inadequate funding, court stated that if “the backlog of
cases in the public defender’s office is so excessive that there is no possible way he can timely handle
those cases, it is his responsibility to move the court to withdraw”); see also In re Order on Motions to
Withdraw Filed by Tenth Circuit Public Defender, 612 So.2d 597 (Fla. App. 1992) (en banc) (public
defender’s office entitled to withdraw due to excessive caseload from representing defendants in one
hundred forty-three cases).
26
45
When a supervised lawyer’s workload is excessive and, notwithstanding any
other efforts made by her supervisor to address the problem, it is obviously
incumbent upon the supervisor to assign no additional cases to the lawyer, and, if
the lawyer’s cases come by assignment from the court, to support the lawyer’s
efforts to have no new cases assigned to her by the court until such time as she can
adequately fulfill her ethical responsibilities to her existing clients.
In dealing with workload issues, supervisors frequently must balance
competing demands for scarce resources. As Comment [2] to Rule 5.2 observes, if
the question of whether a lawyer’s workload is too great is “reasonably arguable,”
the supervisor of the lawyer has the authority to decide the question. In the final
analysis, however, each client is entitled to competent and diligent representation. If
a supervisor knows that a subordinate’s workload renders the lawyer unable to
provide competent and diligent representation and the supervisor fails to take
reasonable remedial action, under Rule 5.1(c),27 the supervisor himself is
responsible for the subordinate’s violation of the Rules of Professional Conduct.28
27
Rule 5.1(c) states:
(c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional
Conduct if: (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the
conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in
the law firm in which the other lawyer practices, or has direct supervisory authority over the
other lawyer, and knows of the conduct at a time when its consequences can be avoided or
mitigated but fails to take reasonable remedial action.
See also Rules 1.16 (a) and 8.4 (a).
28
See, e.g., Attorney Grievance Comm'n of Maryland v. Ficker, 706 A.2d at 1052, supra note 12);
Va. Legal Ethics Op. 1798 supra note 9 (lawyer supervisor who assigns caseload that is so large as to
prevent lawyer from ethically representing clients would violate Rule 5.1); American Council of
Chief Defenders, Nat’l Legal Aid and Defender Ass’n Eth. Op. 03-01 (April 2003), available at
http://www.nlada.org/DMS/Documents/1082573112.32/ACCD%20Ethics%20opinion%20on%20Wo
rkloads.pdf (last visited June 21, 2006) (“chief executive of an agency providing public defense
services is ethically prohibited from accepting a number of cases which exceeds the capacity of the
agency’s attorneys to provide competent, quality representation in every case…. When confronted
with a prospective overloading of cases or reductions in funding or staffing which will cause the
agency’s attorneys to exceed such capacity, the chief executive of a public defense agency is ethically
required to refuse appointment to any and all such excess cases.”); Wisconsin State Bar Prof. Ethics
Comm. Op. E-91-3 (1991) (assigning caseload that exceeds recognized maximum caseload standards,
and that would not allow subordinate public defender to conform to rules of professional conduct,
"could result in a violation of disciplinary standards"); Ariz. Op. No. 90-10 (Sept. 17, 1990) (“when a
Public Defender has knowledge that subordinate lawyers, because of their caseloads, cannot comply
with their duties of diligence and competence, the Public Defender must take action.”); Wisconsin
State Bar Prof. Ethics Comm. Op. E-84-11 (1984) (supervisors in public defender’s office may not
ethically increase workloads of subordinate lawyers to point where subordinate lawyer cannot, even at
personal sacrifice, handle each of her clients’ matters competently and in non-neglectful manner).
46
Conclusion
The obligations of competence, diligence, and communication under the
Rules apply equally to every lawyer. All lawyers, including public defenders, have
an ethical obligation to control their workloads so that every matter they undertake
will be handled competently and diligently. If a lawyer’s workload is such that the
lawyer is unable to provide competent and diligent representation to existing or
potential clients, the lawyer should not accept new clients. If the problem of an
excessive workload cannot be resolved through the nonacceptance of new clients or
by other available measures, the lawyer should move to withdraw as counsel in
existing cases to the extent necessary to bring the workload down to a manageable
level, while at all times attempting to limit the prejudice to any client from whose
case the lawyer has withdrawn. If permission of a court is required to withdraw
from representation and permission is refused, the lawyer’s obligations under the
Rules remain: the lawyer must continue with the representation while taking
whatever steps are feasible to ensure that she will be able to provide competent and
diligent representation to the defendant.
Supervisors, including the head of a public defender’s office and those within
such an office having intermediate managerial responsibilities, must make
reasonable efforts to ensure that the other lawyers in the office conform to the Rules
of Professional Conduct. To that end, supervisors must, working with the lawyers
they supervise, monitor the workload of the subordinate lawyers to ensure that the
workloads are not allowed to exceed that which may be handled by the individual
lawyers. If a supervisor knows that a subordinate’s workload renders the lawyer
unable to provide competent and diligent representation and the supervisor fails to
take reasonable remedial action, the supervisor is responsible for the subordinate’s
violation of the Rules of Professional Conduct.
47