Brother Norm Pattis, of the Connecticut Pattis’, writes about the phone call.  You know the phone call.  It’s the one where the defendant’s mother, wife or baby mama calls to ask you why you can’t get her man the deal that this other guy got.

A client’s mother called. How could I justify the fact that the state was offering her son such a heavy sentence? He had not hurt anyone? Indeed, the state wanted more time from her son that for the murderer she read about in the newspaper. That guy killed someone, and all he got was three years. How can the state want her son to serve more time than a murderer?

Anyone who hasn’t gotten the call hasn’t practiced criminal defense law for more than a week.  Somewhere out there in the ether, there’s a lawyer getting his clients deals that are just miraculous.  Three years for murder?  Now that’s a deal.  Why can’t you get those deals? 

Of course, rarely does the caller get the facts right.  In fact, they are almost always about a hundred miles away from reality.  Often, the story comes from a chat on a street corner with some other person who heard from her neighbor about her cousin’s nephew who knew a guy, etc., etc.  You get the picture.

As Norm points out, it’s a tough call to address.  After the 500 time you hear this, it loses its charm.  One gets tired of deconstructing a story which may or may not have any factual basis at all, and then explaining the intricacies of the criminal justice system.  Such as evidence, as in they give better plea offers to people against whom the evidence is decidedly thin versus your son’s case, where they have him on videotape from 27 different angles.

But neither mama nor baby mama want to hear any of this.  If you’re not getting a deal like 3 years for murder, then it’s your fault, not the defendant’s, nor the prosecutor’s, nor the cop’s, nor the judge’s, nor the videotapes. 

These stories create expectations that real lawyers can’t meet.  Because they are born of emotion, they cannot be adequately address through rational explanation.  The fact is that clients and their families argue with their own lawyers as if we are the stumbling blocks to a successful defense.  We inexplicably are stopping them from getting a sweet deal.  If they just convince us to get them the deal, then we’ll get it for them.

Norm, in a transitory fit of kindness, chose not to slam the phone down on its cradle.  Instead, he chose to meet with the client and as many family members as the client chose to let into the room.  He planned to point out that the defendant’s mother was right, but that the defendant’s case reflected a misguided policy toward people who solicit 14 year olds on the internet, which is deemed worse than murder these days.

Like Norm, I too am sympathetic to the concerns of family.  I too agree that sentencing policy is often unduly harsh, and that prosecutors frequently beat up on those they can because of good evidence to compensate for their feelings of inadequacy when someone gets away just because they have no evidence of guilt.  There is little fair about how this system works.

But I prefer to take this a step further.  Without context, defendants learn nothing from this experience and it is my hope that when my representation is over, my clients will be better off than when they first came to me.  Many defendants, contrary to popular belief, lack a firm grasp of how the criminal justice system works. 

Popular views hold that “these people” know the system inside and out, and play the system for a fool.  Not in my experience.  While some may have a working idea of how some particular aspect of the system works, they rarely have a sufficient understanding to help themselves. Note how defendants regularly make statements to cops that destroy them at trial, and how many end up taking a plea and going to prison.  This isn’t an accident.

So when I get the call, I sit down with my clients just like Norm does.  But rarely do I explain that the system is harsh and unfair.  Instead, I ask them why they think the system exists, what purposes it serves and how they could have done things differently to avoid their current situation. 

Sure, I deconstruct the myth that brought on the call in the first place and explain the particulars of the case that give rise to their specific issue.  But I hope to do more when I have the chance.  Not only do I try to save one person in one case, but I try to help one person to have a better life in the future.  It doesn’t pay any extra, but it’s one of the fringe benefits of being a criminal defense lawyer.