Via Skelly at Arbitrary & Capricious, a young PD blogging at Sloth Bear Diaries posts about the types of defendants who annoy him. For anyone who’s practiced criminal defense for more than 12 minutes, the descriptions will be familiar and bring a knowing smile to your face. There are some other “types” left off the list, the defendant who believes lawyers can see into the future, for example, or the defendant who thinks we have some magic way to make their case go away, but we save it for “special” defendants.
One type on the list doesn’t fall into the annoying category for me, but rather the disturbing. This type is all too common, and impairs my ability to provide the best possible defense. For me, that’s the most problematic defendant.
The problem derives from the confluence of three factors: They are psychologically ill-equipped to come to grips with the fact that they are the target of a criminal prosecution. These defendants can’t perceive themselves as criminals, and they immediately resort to denial, whether of their conduct or their circumstance. They are indignant. They are outraged at their treatment. They refuse to face the fact that they are, indeed, a criminal defendant.
The second factor is the refusal to accept the proposition that there are, at the outset of a criminal defense, only two options. They can fight or they can acquiesce, whether by plea or cooperation. They demand a third option, usually involving an apology from the prosecutor and a tropical vacation. When informed that there is no third option, the immediate reaction is that they obviously need a better lawyer.
The final factor is that they expect to get what they paid for, meaning that they view the lawyer as a plumber who guarantees that, when he’s done, the pipes won’t leak. These defendants tend to be regular consumers of services, and expect their service providers to meet expectations. When told the truth, that lawyers provide time, experience, intelligence and effort, but not a guaranteed outcome, they are not satisfied. They make demands, and they are used to making demands. They have no interest in paying for ambiguity.
Like most people whose knowledge of the criminal justice system is limited to the nonsense they see on TV or read in the New York Times Magazine, they do not believe in trials. They are convinced that the fix is in, that no one wins at trial. They instruct you on Day 1 that they are not going to trial. No trial, period. You explain to them that this is a perfectly fine choice, provided that they understand that this leaves only two options, cooperate or plead guilty. This is when they look at you like you’re nuts. They announce that they’ve apparently retained the singular stupidest lawyer on the face of the earth, who is unaware of the only viable option in their case: Explain to the prosecution that this is all a big mistake, so that everyone can have a good laugh about it, shake hands and go home. Duh.
The defendant, upon hearing the word “cooperation”, immediately lights up. This is their opportunity to explain to the prosecution the error of its ways, how it’s misunderstood and misinterpret perfectly innocent and understandable conduct that some ignorant agent has mistakenly cast as impropriety. If their stupid lawyer can’t manage to explain this adequately, then they will be forced to do so, they inform you. Of course, being good and lawful citizens, they like the sound of the word “cooperation”, as it puts them on the same team as the good guys, the government. They want to be on the good guys team. They are good guys.
This is a particularly dangerous point in the discussion, as the client in denial thinks that he can waltz into a proffer session, explain his innocence, and put this whole silly misadventure to rest. After explaining what a 1001 violation is, the concept of confession is raised. As with the attempted exculpatory statement upon arrest, this is the most likely way to seal one’s fate and destroy any possibility of a viable defense. No matter what “harmless” statements the defendants believes will come out, you can be assured that someone will ask a question that will either require a deceitful response or admit criminal conduct. Either way, the defendant isn’t walking out with an apology and a friendly slap on the back.
The root of the problem is that white collar defendants, unlike good, solid criminals, reject the idea that anyone could seriously believe that they have committed a crime, no matter what the evidence may be against them. Without a full recognition of the harsh reality that they are criminal defendants, every bit as much a defendant as the drug dealer or the batterer, they cannot begin to mount a viable defense. They cannot come to grips with the fact that they are now embroiled in that horrendously unfair system that they vigorously supported throughout their careers. They are now on the other side of the fence, and they refuse to accept it.
For some, the ones who have skirted the edges of the law if not trampled it with reckless abandon, their disgruntlement is a matter of foolish bravado. Yes, you were a master of the universe, but now you’re a defendant. You need to deal with it. For others, whose conduct or intent was innocent and who have done no wrong, welcome to the crazy world of the prosecuted, where even innocent people are accused of crimes. No, it isn’t fair or just, but it’s still your reality and you still need to deal with it.
Fence sitting is the result of a disconnect with reality. Some people just need a grieving period, a time to adjust to the fact that their lives will never be the same now that they’ve become enmeshed in a system that isn’t nearly as perfect as they want to believe. Some people never regain their grasp of reality following their arrest. None are necessarily bad people. Most are quite likable under other circumstances, the kind of folks that you would happily chat with at cocktail parties. But when your relationship is one of attorney and client, the nature of your relationship is entirely different, and your responsibility is to make clear what they are facing on either side of the fence.
It’s not our choice which side of the fence a client ultimately chooses. But there is little we can do while the defendant remains on the fence. And the longer they sit there, the more opportunities are lost. Yes, we understand how difficult it is for you. That’s why we want you to get off the fence so that we can help.
One type on the list doesn’t fall into the annoying category for me, but rather the disturbing. This type is all too common, and impairs my ability to provide the best possible defense. For me, that’s the most problematic defendant.
The Fence Sitter – This guy doesn’t want to go to trial. But he doesn’t want to plea either. In fact there is no course of action that he wants to take. He just wants to stare at the case and think eventually it will go away. He’s terrified of having his day in court, but doesn’t want to admit fault either. Please try not to be this guy. Make a decision!!!In white collar defense, this is unfortunately an extremely common attitude amongst defendant. Ironically, these are defendants who are often masters of their own industry and fate, capable of making difficult decisions in the course of their business without blinking. Yet when it comes to their defense, they are paralyzed.
The problem derives from the confluence of three factors: They are psychologically ill-equipped to come to grips with the fact that they are the target of a criminal prosecution. These defendants can’t perceive themselves as criminals, and they immediately resort to denial, whether of their conduct or their circumstance. They are indignant. They are outraged at their treatment. They refuse to face the fact that they are, indeed, a criminal defendant.
The second factor is the refusal to accept the proposition that there are, at the outset of a criminal defense, only two options. They can fight or they can acquiesce, whether by plea or cooperation. They demand a third option, usually involving an apology from the prosecutor and a tropical vacation. When informed that there is no third option, the immediate reaction is that they obviously need a better lawyer.
The final factor is that they expect to get what they paid for, meaning that they view the lawyer as a plumber who guarantees that, when he’s done, the pipes won’t leak. These defendants tend to be regular consumers of services, and expect their service providers to meet expectations. When told the truth, that lawyers provide time, experience, intelligence and effort, but not a guaranteed outcome, they are not satisfied. They make demands, and they are used to making demands. They have no interest in paying for ambiguity.
Like most people whose knowledge of the criminal justice system is limited to the nonsense they see on TV or read in the New York Times Magazine, they do not believe in trials. They are convinced that the fix is in, that no one wins at trial. They instruct you on Day 1 that they are not going to trial. No trial, period. You explain to them that this is a perfectly fine choice, provided that they understand that this leaves only two options, cooperate or plead guilty. This is when they look at you like you’re nuts. They announce that they’ve apparently retained the singular stupidest lawyer on the face of the earth, who is unaware of the only viable option in their case: Explain to the prosecution that this is all a big mistake, so that everyone can have a good laugh about it, shake hands and go home. Duh.
The defendant, upon hearing the word “cooperation”, immediately lights up. This is their opportunity to explain to the prosecution the error of its ways, how it’s misunderstood and misinterpret perfectly innocent and understandable conduct that some ignorant agent has mistakenly cast as impropriety. If their stupid lawyer can’t manage to explain this adequately, then they will be forced to do so, they inform you. Of course, being good and lawful citizens, they like the sound of the word “cooperation”, as it puts them on the same team as the good guys, the government. They want to be on the good guys team. They are good guys.
This is a particularly dangerous point in the discussion, as the client in denial thinks that he can waltz into a proffer session, explain his innocence, and put this whole silly misadventure to rest. After explaining what a 1001 violation is, the concept of confession is raised. As with the attempted exculpatory statement upon arrest, this is the most likely way to seal one’s fate and destroy any possibility of a viable defense. No matter what “harmless” statements the defendants believes will come out, you can be assured that someone will ask a question that will either require a deceitful response or admit criminal conduct. Either way, the defendant isn’t walking out with an apology and a friendly slap on the back.
The root of the problem is that white collar defendants, unlike good, solid criminals, reject the idea that anyone could seriously believe that they have committed a crime, no matter what the evidence may be against them. Without a full recognition of the harsh reality that they are criminal defendants, every bit as much a defendant as the drug dealer or the batterer, they cannot begin to mount a viable defense. They cannot come to grips with the fact that they are now embroiled in that horrendously unfair system that they vigorously supported throughout their careers. They are now on the other side of the fence, and they refuse to accept it.
For some, the ones who have skirted the edges of the law if not trampled it with reckless abandon, their disgruntlement is a matter of foolish bravado. Yes, you were a master of the universe, but now you’re a defendant. You need to deal with it. For others, whose conduct or intent was innocent and who have done no wrong, welcome to the crazy world of the prosecuted, where even innocent people are accused of crimes. No, it isn’t fair or just, but it’s still your reality and you still need to deal with it.
Fence sitting is the result of a disconnect with reality. Some people just need a grieving period, a time to adjust to the fact that their lives will never be the same now that they’ve become enmeshed in a system that isn’t nearly as perfect as they want to believe. Some people never regain their grasp of reality following their arrest. None are necessarily bad people. Most are quite likable under other circumstances, the kind of folks that you would happily chat with at cocktail parties. But when your relationship is one of attorney and client, the nature of your relationship is entirely different, and your responsibility is to make clear what they are facing on either side of the fence.
It’s not our choice which side of the fence a client ultimately chooses. But there is little we can do while the defendant remains on the fence. And the longer they sit there, the more opportunities are lost. Yes, we understand how difficult it is for you. That’s why we want you to get off the fence so that we can help.
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There was a time when no self-respecting AUSA would charge someone with both the substantive crime and a 1001 count based on a mere exculpatory no. Those days are gone. I’ve seen clients charged with 1001 merely for saying “I didn’t do it”, even when that denial has no possible impact on the investigation. It’s total chickenshit. They ought to be embarrassed.