I listened silently as the attorney on the other end of the phone explained why. He was a civil lawyer, well versed in the doings of deals and very important business papers, whose client got himself into a jam. Drunk as a skunk, he got caught.
The lawyer explained that the guy went to court all by himself, even though he owned a large, successful corporation and could afford, if he wanted, a $6000 shower curtain. He called in advance and was by the person on the courthouse end of the phone that it was fine for him to come to court by himself, he didn’t need to have a lawyer.
“But the guy at the court told him it was okay…”So his legal advice was obtained from a disembodied voice at the courthouse telling him that “it was okay” to appear without counsel? In business, he wouldn’t burp without prior authorization (and perhaps a memo) from counsel, but when it came to a crime, he asked a guy on the phone at the courthouse?
“He was afraid. He had never been arrested before…”
Fear often leads one to make foolish choices, but it usually leads one to realize that crime + court = good time to talk to a lawyer, especially when you already have a few on retainer. Guys with third grade educations can do this math. One would think a very important corporate CEO could figure it out.
“He was embarrassed, and he didn’t want anyone to know…”
Very few people take great pride in being arrested, or the conduct that gave rise to it. They take even less pride in being convicted, or being incarcerated. Being arrested is bad, but it can get worse.
I explained to the lawyer that his dear client may well have done a great number of things that were very bad for his defense. HIs likelihood of walking out of court on the final date was diminished by his poor choices, and that no amount of perfectly reasonable excuses changed that. There is no mulligan in court. Corporate guys and civil lawyers understand the mulligan analogy.
It’s commonplace for nice otherwise law-abiding folks to turn to their trusted civil lawyer when bad things happen and they find themselves in the dock of a criminal court. These civil lawyers, who can be quite forceful and direct about the important of the dotted “i”s in their contracts or civil depositions, strut into a courtroom where there are foreign words, rules and consequences, and think they can bluff their way through and serve their clients adequately to justify keeping the fee in their pockets.
Rarely do they realize that everyone, save two, in the courtroom knows immediately that they don’t belong there. They say the wrong things, waive important rights and don’t know where to stand. Sometimes, the outcomes are adequate; not as good as they would have been had competent counsel been present, but they don’t realize it because they have no idea what a good outcome is. Of course, the client stands there clueless about all of it. The client wouldn’t know good if it bit him in the butt.
But when the client goes in naked, because the guy on the phone at the courthouse said it was okay, there is no way to tell what happened. The client does as he’s told by the nice folks in the courtroom, believing that they are good, upstanding public servants, only there to help him. He’s unclear what he did, as they talk in strange phrases but appear to smile when he does what pleases them.
The same civil lawyer who would have a stroke if his client signed a document for the purchase of coffee without being vetted explains why the criminal justice system should understand that the client just didn’t know better. It’s not that the client is uneducated. It’s not that the client can’t afford counsel. It’s just that, well, he didn’t know.
In a New York Times article about Kentucky v. King, Linda Greenhouse wrote about Supreme Court Justice Sam Alito admonition:
“Whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak.” In other words, the occupants of the apartment not only had a right to tell the police to go away, they almost had a constitutional obligation to do so, because “occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.”
The law allows us to make choices. Some are foolish. As I wrote about this decision,
There is an obvious flaw in the decision, even assuming that the distinction between lawful and unlawful conduct giving rise to exigent circumstances, whatever they may be, makes any sense. The court pretends that the sort of conduct that regular folks engage in regularly, like knocking on a door and saying, “hi, there, it’s Joe,” works the same for the police. It doesn’t. Only a fool, or someone inclined to overlook reality, would think so.The person in the apartment with an iota of intelligence, the one who reasonably believes that his door is about to come down and visitors with guns and shields are about to enter, gets burned for thinking. And educated, monied people who get too hinky to think that they seek the approval of guys with shields in the courtroom get burned for not thinking.
If otherwise smart people can’t figure out how to do the math when it comes to appearing in a criminal court, they have only themselves to blame. There is no mulligan in a criminal courtroom.
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While a rich man’s hubris is always hilarious
For others the situation is far more precarious
I should cop to being a child protection worker
Occasionally a witness but far more often a lurker
While I have been to trials of the criminal sort
Most times I find myself in a family court
There are times I see a lawyer for the respondant
More often than naught they are alone and despondant
At seventeen thousand on average from you and your ilk
The only the only fitting definition I can think of is ‘bilk’
Facts are available but I know better than to link a source
However we all play a part in justice’s perverted course
At times I blame myself and despair
Being part of the machine that put them there
– Lord Burnout McApathy
‘A Collection of Shitposts’ 2011
What’s with these civil attorneys you mention?
I’m a civil attorney but I don’t ever practice criminal–with good reason: I have no experience or training in it. A civil attorney who tries to handle a criminal matter for a client is, quite simply, a fool.
Fortunately, none of my clients have had to make that call to me, but if they did, I would tell them three things:
1. A fish never got caught that didn’t open it’s mouth. So shut up and don’t say anything.
2. Those friendly cops who are “trying to do the right thing and make this all go away” are *not* your friends. So shut up and don’t say anything.
3. I’m calling ______. She’s an experienced CDL who trust and you should immediately retain her to represent you.
4. Shut up and don’t say anything.
Okay, that’s four things, but would hope they’d get the point. A civil lawyer who risks their client’s *liberty* for fear of looking bad or out of their own hubris is beyond the pale.
That’s all it takes.