Reading a post over at Grits, about the false confession prosecution of Frank Esposito, got me thinking.  Scott Henson’s point was about videotaping confessions, a concept about which I am ambivalent because I’ve seen otherwise fine ideas undermined by the perpetual tension between the need to convict at any cost and honesty, but this isn’t about videotaping.  It’s about luck.

Frank Esposito was represented at trial by Nicholas A. Gravante Jr., of Boies, Schiller & Flexner.  His family mortgaged their home to pay the $150,000 legal fee.  When that ran out, as it was nearly certain to do with the Boies firm unless it was a quickie plea, the Esposito family caught a break.  When Gravante informed David Boies that the cellphone records proved the confession to be false, Boies told him to run with the case even though the defendant couldn’t pay.  The legal bill ended up in the half million neighborhood.  Esposito was acquitted.

On its surface, this sounds like a success story.  After all, defendant wins and justice is done, right?  But on deeper scrutiny, Esposito’s acquittal is due to a series of fortunate events, strung together to produce the result.  I don’t want to negate the efforts of Gravante, as good lawyering creates good fortune and capitalizes on it, and he did everything he could use luck in the defendant’s favor.

But even the fact that Esposito had Gravante in his corner was a matter of good luck.  He had a family willing and capable of paying a $150,000 retainer to the Boies firm.  The law firm was willing to eat 70% of the legal fee and expenses.  And ultimately, the cellphone company’s records remained intact until they were obtained by the defense. 

One of the most disturbing aspects of this job of criminal defense lawyering is watching luck run out.  The story of Esposito and Gravante is instructive because of the commitment to defending against false charges from the outset.  There are always things that will happen outside of our control, but the greatest opportunity to capitalize on good fortune exists at the beginning.  The opportunity dwindles appreciatively as time goes by. 

Whether it’s locating witnesses, or evidence, or preventing an indictment before the presentment, the earlier one deals with it the better.  But this requires defendants and their families to see it that way as well.  Too often, they don’t.  What we do see is denial and misguided optimism.

A friend told me yesterday that I am a pessimist.  I responded that I’m a believer in hoping for the best, but preparing for the worst.  If that’s pessimism, than I’m guilty.  But unprepared people lose, and I don’t want to lose.  Still, if the choice is not in my hands, there’s little I can do.

Recently, I met with a potential client who was unbelievably lucky.  He knew, well in advance, that he was going to be arrested and prosecuted for a white-collar crime.  In the interim, he made statements to everyone in sight, both orally and in writing.  He was very smart and well educated, but, by his own admission, an “idiot savant” when it came to the law.  Fair enough. 

Since we were at the pre-arrest stage, the options available were plentiful and opportunities were about as good as they were going to be to prepare for the prosecution before law enforcement shut down our ability to collect evidence and witnesses for the defense.  There was also the matter of preparing the defendant for his day in the sun, which would be ruinous for his career if not properly managed.  This was a huge opportunity, and he was enormously lucky to have it.

But he blew it.  Rather than see what could be done and how it would impact his future, he was unsure of whether all this effort would be necessary.  He wanted to first be certain that “this was serous” before committing himself.  It was purely a financial decision, driven by the “penny wise, pound foolish” motive. 

I’ve seen this thousands of times over my career, defendants concerned but not enough to commit.  They hear stories about some people who somehow escaped prosecution by some quirk of fate, and they can’t help but hope that they too will enjoy such fantastic fortune.  This does happen, on occasion, but rarely.  And when it does, the defendants believe themselves to be brilliant for having made the right choice.  They aren’t brilliant.  They are lucky.

In the vast majority of cases, the defendants aren’t so lucky.  By the time they realize that this is serious, they have squandered most of their luck.  Opportunity is lost.  They come back to me, if they aren’t embarrassed by their poor decision, asking if I would take them back.  They want to know if we can go back to the beginning, do all the things we talked about way back when.  They apologize.  They are sorry they didn’t take it seriously in the first place.

There’s no reason to be embarrassed or to apologize.  I’m not judgmental about this.  Their choices, though foolish, are common.  And the job of a criminal defense lawyer is to take defendants as they come to you, for better or worse.  But no, we can’t go back to the beginning, and we can’t do all the things we talked about way back when.  That window of opportunity slammed shut. 

More often than not, a new facet of representation is required as a result of their choices.  Rather than attack the prosecution in a pro-active fashion, the first line of defense is to undo all the half-baked work that had been done by the cheapo lawyer up to that point.  Waivers of rights, bad (really bad) motion practice, concessions to the prosecutor in private conversations that create his frame of reference and approach.  The list is long.  The damage is severe.  The defendant neither knows nor understands the degree of harm done to his defense.

Rather than dedicate efforts toward winning the case, time is directed at undoing damage to the extent possible and then cutting losses.  Ironically, the defendant ends up at best in a neutral position as a result of his attempt to cheap out in the early days, but more likely in a hole where he is futilely struggling to claw his way out.  Even more ironic is that it ends up costing more to undo damage than it would to achieve success.  He outsmarted himself.

It’s easy to understand why defendants are reluctant to seize the opportunity up front.  Retaining a good criminal defense lawyer is dead money.  There’s no return on your investment in the sense of interest and dividends, a quantifiable benefit that you can put in your pocket when the case is over.  There’s no guarantee of success, a perpetual problem for honest lawyers and a great source of revenue for dishonest ones.  And the general perception that lawyers, as a profession, are untrustworthy, greedy, lying, self-serving, incompetent and abusive (this is the short list). 

But when you hear about cases like Frank Esposito, or Marty Tankleff, or the handful of others that are so unusual that they are newsworthy and make their way from the courtroom to the living room, consider all the stars that had to align in order for success to be achieved.  This is pure luck.  But at the same time, there was a criminal defense lawyer laboring in the background to seize upon the good fortune and make it work in the defendant’s favor.  Without that lawyer, no one would notice these lucky opportunities, take advantage of them and turn that defendant’s good fortune
into a success. 

It’s better to be lucky.  But the likelihood of being lucky depends on having a good lawyer standing beside you.