From the Mailbag

From a Defending People reader’s description of his experience with the criminal justice system:

So, I got a good attorney. My bond was $5,000, and I was out for almost a year keeping my nose clean. Then he called me in and announced that he couldn’t do anything for me and that I was getting 20 years. I thanked him, asked if we were paid up, he said we were, then I said, Good, I’m going home. What do you plan on doing? I plan on blowing my brains out, what do you think I would do? You are serious, aren’t you? You bet, I’m 50, so the likelihood of dying in prison if pretty good and I’d rather die a free man than in prison. WAIT! I’ll make some phone calls! You do that, you have my cell number. I left to go home to blow my brains out. I didn’t get 3 stop lights away when my cell rang and it was my attorney telling me I could get 5 years. I just had to ask, “I have to threaten to blow my brains out for you to get me this deal, that you couldn’t get 10 minutes ago?” Some attorney, huh?

My dad tells the story of a young man who wrote a paper for Henry Kissinger. He delivered it to him, and came the next day to see what Kissinger thought. Kissinger glared at him. “Is this the best you can do?” he asked. Chastised, the young man took the paper back, rewrote it, and returned it to Kissinger. The next day he again went to see what Kissinger thought; again, Kissinger asked him, “Is this the best you can do?” Again, the young man took the paper back. He polished it further and returned it to Kissinger. The next day he visited Kissinger again. “Is this the best you can do?”, Kissinger asked. The young man blew up. “Yes, dammit, this is the best I can do,” he shouted. “Very well then,” said Kissinger, “now I will read it.”

Impending death does have a way of motivating one. But it shouldn’t be necessary for your client to threaten to off himself to get you to do the best you can for him.

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0 responses to “From the Mailbag”

  1. In the Kissinger example, it seems like the young man was pushed by fear, and pride, and a desire to do a good job. We don’t know what the result actually was for any of the three drafts. Perhaps the first was actually the best, or the second, but the young man simply lost perspective under the emotional stress he obviously felt.

    In the case where the man was going to kill himself, we don’t know what the lawyer did to get the lower offer. Maybe the only reason he could get the lower offer in this instance was because he had developed a good track record with the prosecutors in other cases by NOT doing whatever he resorted to doing here.

    Generally, I’m not down on the examples, but as a defense attorney, how do you know how far to push? How do you maintain the perspective necessary to help your client and simultaneously have the emotionally driven impulse to try one last, desperate step, as shown in the Kissinger example? That kind of emotional entanglement doesn’t seem sustainable, or is it?

  2. Robert, I’d say it’s not a question of emotional entanglement but professional responsibility. The reason the guy in the Kissinger example went back again and again was because, in the back of his mind, he did not believe he’d done his best. If he had, there would be less emotional stress. He could have answered “Yes sir” the first time and his boss would have read the brief.

    Similarly, if this lawyer had zealously represented his client to begin with, a) he wouldn’t have offered to make another call, he’d have honestly said “that’s all I can do,” and b) he probably couldn’t have improved the deal in a mere 10 minutes, because he would have already done everything there is to do.

    I find it hard to imagine that whatever “he resorted to doing here” was so terribly problematic – after all, the prosecutor has to sign off on the deal. I’m curious what legal, zealous advocacy tactics you think a lawyer should refrain from to curry favor with prosecutors? I’m hoping that’s a very short list.

  3. First, as I understand it, R Guest is a different person than Dallas criminal defense lawyer Robert Guest. I don’t know that R’s first name is Robert, though the odds are probably good.

    R raises an interesting point. Suppose that there were something the defense lawyer would be willing to do to save his client from certain death, but not to save him from prison. Suppose after his client’s call he called up the prosecutor and said, “I hate to do this, but if you don’t offer my client five years, the kitty dies.”

    Some things that would otherwise be illegal are justified by circumstances. In the calculus of justification, not every threat justifies the same response.

  4. Sorry about the confusion with the names. I’m now the artist formerly…. In friendly response to Grits, you make the same assumptions I found a little difficult in the original post. Regarding the Kissinger example, just because a person thinks they have done their best doesn’t mean they actually have done their best. In my writing, I find my best results occur when I don’t second guess myself or labor over alternate expressions of the same idea. Regarding the prosecutor, Mark’s example is along the lines of what I was thinking. Perhaps rather than threating a feline fatality, the attorney made an emotional, gut-wrenching plea to the prosecutor’s humanity? That behavior coming from someone with an established reputation for competence and professionalism might have some impact. A first-time player in the local legal system, or a repetitively histrionic veteran, likely would get a different result from the same behavior.

  5. The tale of the suicidal client – I don’t believe a client would want to make sure he was paid up. If that story is true, it would be probable that the lawyer did not do a lot of criminal law. If he had, he would have gotten his fee up front.

  6. Hey R, sorry about the name mixup.

    I can see your point about resorting to “histrionics,” but even so I have to wonder if a “plea to the prosecutor’s humanity” mightn’t be something many defendants believe they are entitled to as part of “zealous” advocacy by their attorney.

    Now if the lawyer called up the prosecutor and said reduce the sentence “or the kitty dies,” that would indeed be extraordinarily zealous advocacy, which is why I asked what “legal” advocacy tactics a lawyer might avoid.

    I’m not a lawyer, but in my own professional life (political advocacy work), I usually know whether I’ve done my “best” or not because I’m aware of the full range of strategic and tactical options and know whether I’ve pursued everything possible under the circumstances. But perhaps it’s just that my ego is large enough to mostly avoid second guessing myself like the guy in the Kissinger example.

    Especially in the instance of a client whose good opinion I coveted (as clearly this person wanted to please Kissinger), I can pretty well assure you my response to the question “Is this the best you can do?” would be “Of course.” And I’d mean it.

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