Jamison Koehler posted a vivid description of watching the videotape of a client’s custodial interrogation.  As they go, this one was relatively benign; no beating, not even brow.  It didn’t take very long.  No threats or good cop/bad cop shenanigans.  Not even lies of possible benefits to induce a statement.

The detective is very clever.  After reading my client his rights and answering a few questions, she has him tell and re-tell the story at least eight times, with each re-telling raising the possibility that he will say something different, creating inconsistencies that the prosecutor could exploit at trial.

My client tells the detective he is concerned that, up until that point, nobody asked him for his version of the incident.  The detective seizes on this.  I wasn’t there, she tells him.  So you need to tell me what happened.

She does the “I’m not quite sure what you mean, could you clarify things for me, please?” thing.  And he obliges. Eight times.  Each time he begins the story anew, I think, no, please don’t tell the story again. But I am relieved when he tells a remarkably consistent story each time. He denies everything. Credibly. He is calm and reasonable. And his version of what happened is very plausible.

The prosecution provided Jamison with a DVD of the interrogation.  It amazes me every time that this happens, as for the bulk of my time in the trenches, the only evidence of what a client said is the report written up by the cops.  It was the rarest of instances when a defendant agreed that he did, indeed, say what the officer says he said.  In most instances, I doubted that the defendant’s recollection was clear, or that he was inclined to concede that he made such painfully damaging statements.  People tend to deny things that make them look bad.  It happens.

But here’s a DVD of the interrogation, and it doesn’t appear to do a whole lot of damage.  Whether it is damaging won’t really be known until trial, when we learn how it’s put to use by the prosecution.  But at least Jamison can watch it without slapping his forehead repeatedly, screaming “why?”  It’s a miracle.

At the end of the video, the client is seen sitting alone in the interrogation room.

She leaves.  The camera continues to record. My client sits motionless at the table, his head down and his hands on the table, and I think how quiet it is in this room that holds us both, my client in front of the camera and me looking on somewhere from beyond.

My client shuffles his feet and touches his forehead with one hand, and I wonder what is going through his mind.

These are the moments that we can’t truly share with our clients.  Inexplicably, they believe that we know things we can never really know.  “You’re the lawyer,” they say to us. “You should understand.”  But we don’t.  Most of us have never undergone a custodial interrogation.  We’ve never been the person alone in that small, windowless room, surrounded by cops who have no plan of letting us walk away. We don’t wonder what will become of us, our family, our lives.  We don’t question what we could have done differently, done better, to have avoided that moment. 

There is a laundry list of experiences we will never share with defendants.  When asked what it’s like in prison, we can only repeat things told us by others.  We’ve never been prisoners.  We do share the feeling of waiting for the jury forewoman to speak after the jury has shuffled into the courtroom following their fateful note, “we have a verdict.”  But we don’t share it the same way.  Whether the forewoman utters one word or two, we still get to go home to our family that night.  No matter how depressed and angry we may feel, it can’t compare to the feelings of the person who will suffer the consequences for years.

There’s a terrible tendency by lawyers to believe that they have a grasp of what’s going through a client’s head as they endure the rigors of the process.  Not just understand, but know better.  Certainly, it’s the lawyer’s job to tell them what they are looking at, how best to deal with it, what things they shouldn’t do.  But advising isn’t the same as understanding.

There tends to be a monumental disconnect between  lawyer and client at these stages.  We confuse our knowledge of the process with the actual experience.  Perhaps the closest we come is testifying, where many lawyers have taken the stand for one reason or another, and so have a small understanding of what a defendant feels as he sits in the witness box.  It’s still not the same, as we aren’t testifying for our life, but merely our dignity. Dignity is very important, but it pales when compared with 20 years.

Jamison’s reflection as he watched the end of the DVD is interesting.  He writes:

My client must understand how an astronaut feels, untethered in space and turning like a planet.

And perhaps Jamison now understands how a client must feel.  Not enough lawyers do.  Not enough lawyers care.