Tuesday, March 02, 2004

The Ghosts of Clients Past, II


Yesterday, the New York Times ran an editorial by John Edwards on the issue of trust, in which he recounted the trust invested in him by a client severely injured by an excessive dose of medication. I was reminded of the days when I practiced criminal defense. Yes, clients place a great deal of trust in their lawyers in relation to personal injury cases, but at the end of a personal injury trial nobody goes to jail. That is not always the case - that is often not the case - after criminal trials. The easy cases tend to plead out. The remaining cases for the most part split into two categories: Clients who have nothing to lose, and clients who have everything to lose.

The former group is composed largely of defendants who have been offered to meager a plea bargain, or no plea bargain at all. They don't have much hope of winning, but see little downside in "rolling the dice" with a jury. The latter group contains clients who have a strong innocence defense, or who are in fact innocent. Prosecutors are very resistant to claims of innocence - to do their jobs well, they have to believe that the system works, and that they would never prosecute an innocent person. And most prosecutors seem to quickly develop absolute confidence that every defendant in every case is absolutely guilty.

The innocent client is often faced with a terrible choice, between a plea bargain that extends a shorter term of incarceration or even probation, or the possibility of a long term of incarceration if convicted at trial. It is not easy to be a defense attorney trying to guide a defendant through that decision process. While most defendants are guilty and are eager for a good plea bargain, an innocent client is understandably loathe to admit any guilt. And perhaps continues to operate under the illusion that an acquittal will somehow "clear their name" - in reality, clouds of doubt usually linger even after acquittal. People readily accept a guilty verdict as proof of guilt, but are often suspicious of acquittal.

I had a client who was charged with a serious felony offense, and who faced a long prison term if convicted at trial. He was a father and husband, disabled from his prior physical employment by a congenital medical condition, and was trying to improve life for his family by pursuing an associate's degree. His wife was also enrolled in classes. He was adamant that he was innocent. The prosecution was premised upon the report of a police "expert", whose credentials were that he had attended a two-week police training course, and had assisted a more experienced investigator in a small number of prior cases. The errors in his analysis of the alleged "crime scene" were astonishing - but the prosecutor did not care. She was absolutely convinced that my client had to be guilty - the circular reasoning alluded to above: He had been charged with a crime, and she was prosecuting him, so he was guilty. If he were innocent, after all, she wouldn't be prosecuting him.

The prosecutor's ethics were more than a little bit shady. She intentionally withheld exculpatory evidence. She attempted to present exhibits to the jury while blocking my view of the exhibits, and complained to the judge that I was "trying to read her notes" when I moved to a position where I could see what she was doing. She made faces during my examination and during witness testimony. She coached the police "investigator" as to how to testify about the errors in his report, which were rather horrendous. She concealed a witness who possessed a key piece of evidence until rebuttal, in an effort to sandbag the defense. The judge had been recently appointed to the court, and made a sincere effort to offer a fair trial, but (as is quite typical) when in doubt about the state of the law his tendency seemed to be to rule against the defense. The prosecutor very much took advantage of that inclination, and routinely argued for exclusion of defense evidence that she knew was admissible, and for the inclusion of her improper "rebuttal" witness.

This was not the first case I had tried, but it was the first where I had a strong feeling that my client was innocent. He was very open with me, his story was plausible, and I was still rather stunned by the sloppiness of the police work. But he really won me over after we closed our defense and the prosecutor announced her improper rebuttal witness. Taunting me after a session of court, she had declared, "My rebuttal witness has evidence which proves your client is lying." I told my client this, and he didn't even flinch. "Don't worry about it," he said. "She can't have that evidence, because I'm innocent." He was correct. The witness (a gloating former police officer, more than happy to participate in the withholding of key physical evidence) testified, we presented our arguments, and early the next morning the jury acquitted.

Unlike any other trial I conducted, this one grabbed me by the gut and twisted hard. I barely slept from the first to the last day of trial - probably two hours per night - and had almost no appetite. My whole being was focused on achieving justice for my client. He trusted me, and that was a trust I could not betray. This, to me, is a very different sort of trust than is extended by a client in a civil case. That's "trust with my money" - this was "trust with my life".

I am grateful to the jurors who heard the case for working through a lot of difficult evidence and argument, and for taking their oaths as jurors so seriously. They taught me a valuable lesson, also, about the damages awards that, at arm's length, seem so absurd. When they deliver those verdicts, juries are trying to achieve justice. They aren't concerned with headlines or how the facts of the case will be twisted by "tort reform" advocates on the payroll of insurance companies. They are making a sincere effort to right a wrong against an unremorseful, unapologetic defendant (and I have yet to see such a verdict where the defendant acted apologetically or took even partial responsibility for the consequences of its conduct), and money is the only sanction they are permitted to impose.

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