What attitude should PDs have towards victims/opposing counsel?
Skelly has a great post that raises a good question. How should a defense attorney for the poor feel towards and treat a victim, their family, or opposing counsel? One view confrontational view is:
I have one source for an asnwer. The oath sworn by Florida bar members states in pertinent part:
There are times where a defense lawyer must be offensive to be effective, but there are also many instances where a lawyer is simply offensive and thus becomes less effective. Guess what, no matter how fantastic a lawyer you are, as a public defender, most of your clients are going to be guilty. Thus, being an arse during pretrial hearings or depositions (yes, we get automatic depositions here, another great reason to be a defense lawyer in Florida state court) can make it far more difficult to get the plea that you want and your client deserves.
Trials are different. There are fewer opportunities to compromise. But first, I'll admit that I'm always looking for a way to get what my client wants. If a client is more interested in a settlement and a safe plea, then this could happen at any time up to and even after the jury verdict has come back! I mean, if you create some great appellate issues, you may want to approach the state and suggest an amenable resolution that will save the need for an appeal and the uncertainty that brings to both sides. This includes the recognition that the state may be very interested in closure for their victim or the victim's family, something a defense attorney can often be instrumental in bringing about. If obstructionism and closure is the only tool in our arsenal, why fritter away this opportunity to serve the client's needs by being unduly unpleasant?
When is it time to treat a victim or their family offensively? Well, when they come into court and lie on your client they become fair game. Same for any cops who do the same. Gently taking them downa notch is always an effective way to get a jury to reasonable doubt. If the key witnesses are incredible, you've got some great arguments.
A problem comes when a defense lawyer demonstrates excessive vitriol. Put forth enough energy to demonstrate your displeasure, but why hate? Hate is an evil word. Hate and revenge are natural feelings that people have but they are quite often what you want the jurors to suppress and ignore. My view is that if you get in a hate-off with the government and a wronged victim and/or the victim's family, your client loses. Our clients are rarely sympathetic. Sure, when I get an ex-military or otherwise really sympathetic client, I use that, but more often our clients are pretty down on the food chain. Jurors will far more easily sympathize with, say the person whose home or car was burglarized than a drug addict who needed a fix.
I love this quote from Skelly:
How can one show the humanity of a client and ask for the benefit of the doubt by denying the humanity of a person who was victimized by crime? Certainly liars do not deserve any sympathy from us, but treating liars with respect in exposing their lies is a good idea, I'd say, except and until the witness requires a forceful reaction.
I have no problem shedding a witness, but you usually do it with gentle questions and save the strong arguments for closing (after setting these issues up by getting them from the juror's mouths during voir dire and reminding them of what they'll see in opening statements). People who think that an attorney's consistently angry demeanor or clear dislike of the victim will win cases has obviously watched too much Law and Order and taken the wrong lessons. The lesson is that if you are perceived as the slimy defense lawyer with no concern for the humanity of the victim or their family, why should the jurors care about your client? To be persuasive, you want to be the most reasonable person in the room. A reasonable person recognizes the anger a person would feel from having their family member murdered, for example.
The point about focusing your sympathy on the client is well-taken. One can never focus on the sadness everyone can feel for sympathetic victims. Everyone should be able to feel sorry for families of murder victims, people who've been sexually abused, or people who've had things stolen or been physically attacked. But that feeling cannot dominate. One must feel most sympathetic for the client and their situation.
Too many defense lawyers for the poor get burned out. Then the lawyer gets fixated on how horrible their clients are for the things they do. And then instead of wanting to take responsiblity, the clients have the terminity to demand things like meeting with their lawyer! My attitude there is that, when necessary, a lawyer needs to gain the trust of the client and help them take responsiblity.
If the client doesn't want to take responsiblity after you've fully educated them, then fight along with them as much as you ethically can! Many clients just want someone to say that they believe in them, then all they want is a plea and the least jail time. If that's what they want, that's what you need to try and get for them. A client is a person whose view is to be respected, not a tool to use against the state or the judge to try and clog up the system. If the client wants to take that role and fight, good for them, but not at my behest.
After listening enough, the client will understand when you explain why, for example, they are likely to lose (if they are). If they still trust your advice and insist that they didn't do it or can't take this plea for X or Y reason, then you've got that red light to go to trial. Then break out the war paint. But you should always remember the teachings of Sun Tzu: "One hundred victories in one hundred battles is not the most skillful. Seizing the enemy without fighting is the most skillful." Don't fight unless you have to, and if you do fight, fight in a way that the enemy (the victim, victim's family, the government) will not be angry at your scorched earth tactics, unless they are absolutely necessary.
“When I’m on trial and we’re in a truly adversarial proceeding, I hate the mother of the victim. I hate the father of the victim, I hate the children of the victim. I hate every part of it. It’s actually a terrible thing, but I can literally hate them when I’m fighting. I have to.”
I have one source for an asnwer. The oath sworn by Florida bar members states in pertinent part:
"I will abstain from all offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged;"
There are times where a defense lawyer must be offensive to be effective, but there are also many instances where a lawyer is simply offensive and thus becomes less effective. Guess what, no matter how fantastic a lawyer you are, as a public defender, most of your clients are going to be guilty. Thus, being an arse during pretrial hearings or depositions (yes, we get automatic depositions here, another great reason to be a defense lawyer in Florida state court) can make it far more difficult to get the plea that you want and your client deserves.
Trials are different. There are fewer opportunities to compromise. But first, I'll admit that I'm always looking for a way to get what my client wants. If a client is more interested in a settlement and a safe plea, then this could happen at any time up to and even after the jury verdict has come back! I mean, if you create some great appellate issues, you may want to approach the state and suggest an amenable resolution that will save the need for an appeal and the uncertainty that brings to both sides. This includes the recognition that the state may be very interested in closure for their victim or the victim's family, something a defense attorney can often be instrumental in bringing about. If obstructionism and closure is the only tool in our arsenal, why fritter away this opportunity to serve the client's needs by being unduly unpleasant?
When is it time to treat a victim or their family offensively? Well, when they come into court and lie on your client they become fair game. Same for any cops who do the same. Gently taking them downa notch is always an effective way to get a jury to reasonable doubt. If the key witnesses are incredible, you've got some great arguments.
A problem comes when a defense lawyer demonstrates excessive vitriol. Put forth enough energy to demonstrate your displeasure, but why hate? Hate is an evil word. Hate and revenge are natural feelings that people have but they are quite often what you want the jurors to suppress and ignore. My view is that if you get in a hate-off with the government and a wronged victim and/or the victim's family, your client loses. Our clients are rarely sympathetic. Sure, when I get an ex-military or otherwise really sympathetic client, I use that, but more often our clients are pretty down on the food chain. Jurors will far more easily sympathize with, say the person whose home or car was burglarized than a drug addict who needed a fix.
I love this quote from Skelly:
"Everyone, even the guilty criminal--especially the guilty criminal!--needs a companion, a friend, someone to stand with him and for him..." The defense lawyer's job is to force the system to acknowledge that the defendant is not just a social misfit, or a statistic, or a criminal, but a human being with hopes and dreams and fears. A human being who, like any of us, stands in need of repentance and redemption.. The question for the Christian lawyer is not, 'How can you work to get a guilty person off?' The real question is, 'Will you stand by this person, this flawed and sinful human being, and speak a word on his behalf?'" - Joseph G. Allegretti,The Lawyer's Calling
How can one show the humanity of a client and ask for the benefit of the doubt by denying the humanity of a person who was victimized by crime? Certainly liars do not deserve any sympathy from us, but treating liars with respect in exposing their lies is a good idea, I'd say, except and until the witness requires a forceful reaction.
I have no problem shedding a witness, but you usually do it with gentle questions and save the strong arguments for closing (after setting these issues up by getting them from the juror's mouths during voir dire and reminding them of what they'll see in opening statements). People who think that an attorney's consistently angry demeanor or clear dislike of the victim will win cases has obviously watched too much Law and Order and taken the wrong lessons. The lesson is that if you are perceived as the slimy defense lawyer with no concern for the humanity of the victim or their family, why should the jurors care about your client? To be persuasive, you want to be the most reasonable person in the room. A reasonable person recognizes the anger a person would feel from having their family member murdered, for example.
The point about focusing your sympathy on the client is well-taken. One can never focus on the sadness everyone can feel for sympathetic victims. Everyone should be able to feel sorry for families of murder victims, people who've been sexually abused, or people who've had things stolen or been physically attacked. But that feeling cannot dominate. One must feel most sympathetic for the client and their situation.
Too many defense lawyers for the poor get burned out. Then the lawyer gets fixated on how horrible their clients are for the things they do. And then instead of wanting to take responsiblity, the clients have the terminity to demand things like meeting with their lawyer! My attitude there is that, when necessary, a lawyer needs to gain the trust of the client and help them take responsiblity.
If the client doesn't want to take responsiblity after you've fully educated them, then fight along with them as much as you ethically can! Many clients just want someone to say that they believe in them, then all they want is a plea and the least jail time. If that's what they want, that's what you need to try and get for them. A client is a person whose view is to be respected, not a tool to use against the state or the judge to try and clog up the system. If the client wants to take that role and fight, good for them, but not at my behest.
After listening enough, the client will understand when you explain why, for example, they are likely to lose (if they are). If they still trust your advice and insist that they didn't do it or can't take this plea for X or Y reason, then you've got that red light to go to trial. Then break out the war paint. But you should always remember the teachings of Sun Tzu: "One hundred victories in one hundred battles is not the most skillful. Seizing the enemy without fighting is the most skillful." Don't fight unless you have to, and if you do fight, fight in a way that the enemy (the victim, victim's family, the government) will not be angry at your scorched earth tactics, unless they are absolutely necessary.
posted by ACS at 11:34 PM
2 Comments:
Good piece. I'm working the other side of the aisle this summer. I never knew how convincing some PD's could be. Halfway through arguing the sentence I want to side with them sometimes.
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