You can always tell a letter from a prisoner. It has the tell-tale numbers on the blank line after the name on the return address. Of course, the pre-printed name of a correctional institution is a dead give-away as well. The address has a faded appearance. That’s because the envelope was prepared on an antique devise that was once in common usage, but has since disappeared, except in prisons — the typewriter. The characters lack the clarity and precision of a laser printer.
Over the past 25 years, I’ve received literally thousands of letters from prison. Some are from clients. Most are from people I don’t know. Even though decades have elapsed since my first letter from an unknown prisoner, the content is almost always the same.
They are invariably polite, often to the point of being obsequious. They tell me that a grave injustice has been done to them. It will include how many years they’ve been there, and how many years they have to go. Rarely does the letter mention why they are there, omitting such words as “murder” or “rape” or “drug dealing”.
The letter would explain that the prisoner was writing to me because they heard of my reputation and desperately needed a lawyer like me to free them from this wrongful conviction. It was invariably flattering, if entirely vague. I assumed that the same flattering language was included in every letter they sent to every lawyer they could find. Generic flattering phraseology can be easily reused.
In the old days, the complaint was usually about how a cop set them up or beat a confession out of them. This gave way to the false identification and false scientific tests, ranging from fingerprints to lead-bullet analysis to the failure to do a DNA test. The letters close with the same assertion: “I am innocent. Please help me.”
I’ve received letters from people whose name meant nothing to me, and from people whose name would later become very familiar. I received a letter from Marty Tankleff many years ago, when he was searching for someone who would believe him. Even then, his name was familiar as the conviction for the double murder of his parents was big news.
The problem with each of these letters has always been the same. What am I supposed to do? When you receive a dozen such letters a month, each of which claiming innocence, it nags at a criminal defense lawyer. There’s something in our heads that makes us bristle at injustice. It’s just our nature.
But the unspoken plea in each of these letters is the same. They have been convicted. They have lost their appeal. Time has gone by and they are still in prison, alone to face their demons. They are no longer entitled to free legal services. They have no money to retain a private lawyer. Their families have moved on to other things.
The unspoken plea is for some private lawyer to take on their cause pro bono.
The letters complain of the injustice and unfairness of our criminal justice system. I’m painfully familiar with it, and don’t really need a letter to explain it to me. But I can’t help them. Even the time it would take to respond to the letters, to gather sufficient credible information about their situation, would overwhelm my practice. I mean, I could do it, but then I would be unable to represent the clients who retain me, pay the cost of my daily java and feed my children. There is only so much time in the day.
Most of these letters, no matter how much effort is applied, reflect situations that will go nowhere. This isn’t because the letter writers are lying, but they aren’t always entirely truthful either, and are rarely accurate. After thorough investigation and research, the end result is that there is nothing that can be done. We have an imperfect system, and not all wrongs can be righted.
I’ve never figured out a way to determine whether one letter is more worthy of my attention than another. If you respond to a letter, you’ve invited a prisoner to put his faith in you, and he will do so in spades. You will continue to receive letters, and pleas, and envelopes full of documents, mostly handwritten notes containing the prisoner’s legal analysis after hours spent in the prison law library, together with copies of decisions that he thinks apply. There will be loose pages from his case, with explanations about why routine papers prove he was denied due process. There will be requests that you have expensive tests performed on his behalf, because they will prove his innocence. If I would just do one more thing, it will prove he is innocent, they write.
In the early days of my practice, I would keep the letters in a pile on the side of my desk. I would look at them from time to time, wondering whether this one was someone I could save. My partner at the time, Howie, would give me a smack on the side of the head. “You aren’t responsible,” he would tell me. “Stop feeling guilty and worry about the ones you actually represent.” Howie had practiced 20 years longer than me, and was a killer old-school Irish trial lawyer. He had been the head of Citywide Narcotics for the Legal Aid Society before going into private practice. He had heard it all. He was as tough as they come. He drank heavily to dull the pain.
These letters still bother me. Not that I respond to them, for the same reasons that I didn’t before. But I still feel guilty. I wish there was a way I could help every defendant fine as much justice as possible.
Most lawyers I know feel some obligation to do some pro bono stuff. Don’t know any who feel an obligation to roll the dice as to who them pick as clients for that, and picking clients out of that sort of letters pile looks to me, from this remove, as a lot like picking a stale lottery ticket. It’s possible, I guess, that somebody in that situation could have some grounds for appeal, even at that point, and it might all work out okay. But if you’re going to work for an occasional pro bono client, you’re probably going to do a lot more good if you pick somebody who is writing from jail, than from prison.
That said, and while it’s not the same thing (pauper’s petition to the SCOTUS, not a letter to an attorney), Clarence Earl Gideon was a pro bono client of Abe Fortas, and it’s really hard to argue that Fortas didn’t hit the jackpot for all of us — the right to counsel (even if you don’t have a dime to your name, when you’re charged with a crime) is, IMHO and all, kind of a big deal.
And that’s the problem. What if Fortas had passed on Gideon? Don’t think that doesn’t cross my mind.
Didn’t think that. Then again, Fortas was responding to a no-ifs-ands-or-buts real deal; cert had been granted when he was assigned, IIRC. (I was impressed, when reading Gideon’s Trumpet, many years ago, that his first move was to look and see if there was some other way that he could get his client out of prison without going to the Constitutional issue, as much as he wanted to go there.)
If you pick a letter out of the pile and decide to represent the erstwhile client, what are the chances you’re going to get to something significant? (I’ll accept that a credible claim by a guy in prison is significant, even if it doesn’t work out.) My sense — aided by my massive ignorance, granted — is that it’s Lotto territory.
I get them too. Howie may have had a wrong approach. It is not “don’t feel guilty,” at least not to me. I think, “I am not useful to anyone if I put myself out of business.” And each inmate, innocent or not, has to figure it out for himself too. How to be useful to others. Right there in the pen.
I really enjoyed this point I get several such letters every week, and try to respond to them all, even it is telling them I can’t help them. I still feel guilty though, and every now and then that sucks me in. The problem is worse if you try to integrate your faith and your practice, since you constantly wonder whether that person has been placed before you for a reason.
You couldn’t have done a better job of expressing those thoughts and feelings. I think you always need to remember that you wouldn’t be great lawyer if you didn’t care – unfortunately, there a lot of lawyers who toss those letters in the trash without a second thought.
I’d not thought much about wrongful convictions until I watched my son be convicted of a crime he didn’t commit. Let me say, I’m a pretty hard-headed guy–a retired AF pilot, former member of the FBI, and current faculty member at one of our nation’s service academies, and when I proclaim my son’s innocence, it is with full knowledge and understanding of the case. In it I see examples of many of the systemic problems our criminal justice system faces. And so I can understand the conundrum you’ve described. As the time drags on in our son’s case, we find ourselves increasingly drawn to activism in trying to change what we see as grave shortcomings in the system. If any of you folks wish to suggest a path concerned citizens might follow to improve the accuracy of judgments, I’d love to hear from you. For now I’m working on an analysis of the low value we place on evidence and the contradictions inherent in an adversarial system that can seduce law enforcement to wink at genuine truth-seeking.
It’s always fascinating to hear from someone who spent their life vested in one side learn what it means to be on the other. It must be unbearably painful to watch helplessly as your son suffers for a crime he didn’t commit.
Would you really like to help? Tell a few million of your closest friends, people just like you before this happened to your son, that life isn’t swell as longt as it’s not your butt on the line, because the day it happens to you, or your son, it will be too late. Before, the world made perfect sense and everything was crystal clear. Not any more. This is our world, where we would love to be on the side with all the simple answers, and instead we deal with the mess and the pain.
Best of luck with your son. Sometimes justice does happen. Sometimes it takes a while. Sometimes it doesn’t happen. I hope it happens for you.
Thank you for your wish for luck.
I am smarting a bit at what I hope is an unintended criticism of a career that came as a consequence of ill-conceived war and a national draft.
I may have given the impression in my initial posting that I was some kind of buckaroo who’d ride roughshod through a landscape of privileged imposition. But I assure you that is not the case. I’ve learned though, that in most forums I need to work to convince the hearers that our son is indeed innocent. And the most resistant of those forums have seemed to involve people in the legal profession who often are remarkably proficient in the technical application of law but surprisingly unwilling to grapple with the fundamental systemic shortcomings that exist in our system. That said, I appreciate attorneys with backgrounds both as prosecutors and defense attorneys who have shared their insights regarding the problems they see with the current system.
As I write this I’m working on a manuscript that I hope can engage the millions you speak of. I’d be most grateful if you or anyone reading this might offer description, analysis, and recommendations. The chapter I’m currently working on is about evidence. I think Trombetta v. California and Arizona v. Youngblood have had terrible consequences for justice in America. I invite your thoughts on the topic.
Lawyers, per se, are not your target audience. Most don’t have any experience in criminal law, and are largely unsympathetic to its issues. Your impression of my response was somewhat correct, though not really because of a belief that you were some kind of a buckaroo. Most of us have represented people who, prior to their arrest, were politically conservative, and were shocked to learn that their foundational beliefs about the criminal justice system were so wildly misguided. The irony is usually too much to ignore, and we use it as a pedagogical tool, and then move on.
For those of us who practice in criminal law, the conviction of the innocent is neither surprising nor astounding. It is a by-product of a severely flawed system that happens regularly. Most people convicted are guilty, and the issue isn’t guilt but whether they were convicted by lawful means. Some people are innocent, but the same means resulted in their conviction. This is why we fight the means of conviction.
I see that you’re into preservation of evidence at the moment. These are terrible decisions, which elevate police needs over a defendant’s ability to test evidence. Are they the most terrible? It’s all according to where you sit. The most terrible caselaw is the one that affects you. But the notion of facilitating order at the expense of fairness permeates the law. It smooths out the bumps in the road to conviction, but leaves the innocent defendant without a chance to defend. But hey, cops wouldn’t lie. Cops couldn’t be wrong. Could they?
Deceit flourishes where the sun doesn’t shine.
Tell me, from where you sit, what is the most terrible case law? What reforms would privilige fairness and accuracy? It strikes me that accuracy in verdicts better serves order. Administrative convenience seems only to serve itself.
It doesn’t work that way for lawyers. There is no “most terrible caselaw” because bad law is circumstance-related. Whatever decision works an injustice on any case I’m doing at the moment is the worst, but only for the moment.
The system is better analogized to a complicated watch, where it keeps good (but never perfect) time when all the parts work properly, since every piece is inter-related. If one piece fails, no matter how insigificant a piece it is standing alone, the watch stops ticking. Whichever part failed is the most important part. Until another part fails.