The “Defendants’ Resistance” Movement

There are many cockamamie notions whirling around the damp minds of criminal law reformers which wind up with legal academics grasping at straws to write some hip, radical  article or book to promote a means of fixing the broken, invariably racist, system. Some, like jury nullification or eliminating plea bargaining, have gained traction.

A nascent notion came from the fertile imagination of a Stanford sociologist, with a courtesy appointment at Stanford Law School, Matthew Clair, who wrote a book that was excerpted at Inquest, which bills itself as “The Decareral Brainstorm.” Such sites, dedicated to such one-sided causes without a discouraging word, have a tendency to promote ridiculous ideas because there’s no one around to point out that they’re, well, ridiculous. And Clair’s idea is not merely ridiculous, but dangerous.

In ways large and small, disadvantaged defendants who try to assert their voice in the criminal legal system see their agency denied — including, sometimes, by their own lawyers. Sociologist @mathuclair explains what that’s like.

Converted into words with meaning, the point here is that defendants are denied the opportunity to write their own motions, make their own arguments, scream at the judge, because their lawyers don’t let them.

Nearly all the lawyers I’ve spoken to have had more than one story to tell about “uncooperative” and “difficult” clients — defendants who withdrew from them. In in-depth interviews and in casual conversations, I asked lawyers about the kinds of defendants they prefer and the kinds that frustrate them. I asked them about the different kinds of relationships they find themselves in and the kinds that they strive to cultivate with their clients. And I asked how they react to these different kinds of relationships. Nearly every lawyer I spoke with was aware of the need to gain the trust of their clients. Some recognized defendants’ distrust of the legal system and defendants’ frustrations of being charged with a crime.

He limited his scope of knowledge to “all the lawyers [he’s, although I don’t know his chosen pronouns] spoken with,” which appears to be an extremely limited number. It’s not that most lawyers have stories about uncooperative and difficult clients. We do. And many distrust the legal system and are frustrated with being charged. They are. And then comes the devolution into anecdotes as if a few cool stories from Clair’s limited universe explains it all.

At the same time, defense attorneys admitted that they were not always able to gain the trust of their clients: many of their most disadvantaged clients did not seem to engage with them or defer to their expertise. Worse, they felt that some of their clients were outwardly hostile. One public defender told me, “Clients are always looking for a reason as to why they shouldn’t trust you.” Another public defender said, “Clients are quick to trash lawyers.”

There are vast differences between the experience of n00b public defenders and more experienced, and usually private, lawyers. In the minds of many defendants, a lawyer is worth what you pay for her, and she often is. Every baby lawyer believes they’re the reincarnation of Clarence Darrow at a year or two in, and not only after they have ten, and often more, years under their belt do they begin to realize what a mediocre lawyer they were, and why they failed to instill confidence in clients.

When defendants are unable or unwilling to communicate because of their resignation, defense lawyers may not fully invest their time in preparing for their cases.

Of course, such a practice could contribute to clients feeling that their lawyers are not taking their cases seriously — a common complaint among disadvantaged defendants. When clients are so resigned that they do not meet with their lawyers or answer their phone calls between court dates, defense attorneys respond by making their own decisions about what legal outcome they believe to be in a client’s best interest. Such decision making can become routine: Lawyers prepare for the possibility of trial but expect to negotiate a reasonable and standard plea deal that they assume their clients would not mind taking.

Clair’s message is that these clients have arguments they want to make and they want to be heard, but their lawyers are not sufficiently “invested” because these clients, perceived as uncooperative but really just disadvantaged, annoy their public defenders, who then do a routine job of representation at best.

Some lawyers I interviewed readily acknowledged less investment in clients who frustrate them or question their authority, underscoring how relationships of withdrawal are marked by lawyers withdrawing from their clients as much as they are by clients withdrawing from lawyers. For instance, a bar advocate I spoke with over lunch told me that she loses patience with clients who try to dictate legal strategy.

This morass of stories runs in circles, for lack of cogent connections, but ultimately winds up with an assertion explaining how lawyers, either too annoyed to defend or personally offended by being challenged, need to let their clients run the show because…well, read it for yourself.

Some defendants are aware of the formal legal costs of resistance; yet, they may nevertheless be willing to incur them because they care about more than their legal outcomes. This is particularly the case when defendants feel deeply that the system is morally wrong or illegitimate. Such a feeling is most common among those who are marginalized and feel they have been treated unfairly by police.

Clair concludes with an anecdote about a defendant who rejected a plea of probation to go to trial against his lawyer’s advice, lost and got two years.

Yet, according to his friend, it was important for Bob to maintain his innocence and resist the police’s authority throughout the process.

Like almost every one of these radical beliefs pushed by well-intended folks who have never held a defendant’s hand as they come to grips with why Jesus, a UCC 1-308, DOO process or all cops are liars is going to save them from life plus cancer when the five unrelated witnesses, three rats, his mother, the wiretaps and videos are introduced into evidence against him.

Desperation drives people to do foolish things, and too many lawyers fail to provide defendants with the zealous defense they’re due, whether because of lack of time and resources, lack of skill and experience, or lack of interest when the lawyer cares more about herself than her client.

It’s entirely understandable that inadequate lawyers drive clients to the edge of a precipice. The solution is better lawyering, which I grant you isn’t easy to achieve, but it is not to argue that the defendant should be afforded his agency to leap blindly into the abyss. It’s not that Clair isn’t “on” to a problem, but it’s the wrong problem and he ends up at the worst possible solution.

24 thoughts on “The “Defendants’ Resistance” Movement

    1. SHG Post author

      I prefer an engaged client than one who doesn’t care about his case, but I also make clear that beyond the choices that are exclusively the client’s, I make the tactical decisions and if the client doesn’t trust me enough to do so, he should retain other counsel. PD and indigent defense clients don’t have that option, so one of the most critical skills they need to acquire is the ability to instill confidence in defendants that they are going to provide a zealous defense and put the client first.

      Reply
  1. Richard Kopf

    SHG,

    My experience in the fed. system is that a poor defense lawyer is almost always better than the client. Not always, but mostly.

    What you have written is very important and it is my hope that the piece will wash ashore on a few of the accused and, certainly, all of the criminal lawyers. Heck, its a good reminder for me!

    All the best.

    RGK

    Reply
    1. SHG Post author

      Mostly, but like you, I have little tolerance for poor defense lawyers, new or experienced, or their excuses. If you can’t do the job zealously, do real estate closings.

      Reply
  2. Jeffrey Gamso

    And sometimes, shockingly enough and despite our best efforts at convincing them otherwise, clients make bad choices on matters that are exclusively theirs. (If they were better at making choices, many of them wouldn’t have become clients in the firs place.)

    So be it. We still do what we can.

    Of course, it’s also true that occasionally the client turns out to be right and the lawyer wrong. (And then there are the sovereign citizens, but I won’t go there in this comment.)

    Reply
    1. SHG Post author

      I used to do an ethics CLE on what choices belong to the client and what choices are the lawyers responsibility. A lot of lawyers struggle on both ends, whether for lack of understanding or the sense that if a client wants to be stupid, it’s their life so fuck ’em. And yet, on rare occasion, a client’s right. Even if the tactical decisions belong to the lawyer, that doesn’t mean you don’t take good advice wherever it comes from.

      Reply
  3. Sonetka

    I can’t imagine he ranged too far looking for lawyers to interview when it never seems to have crossed his mind to ask Bob directly what he was thinking when he chose to go to trial, and what he thought of that decision now. It’s not like Bob is imprisoned incommunicado in a glass column on Camazotz — finding and contacting him would have been the work of twenty minutes.

    Reply
    1. Kathleen Casey

      This connects with a thought I have, if that Clair had credentials in psychology rather than sociology his assessment would be more accurate and useful. Because defendants’ yen to control the strategy and tactics of their defense is very individual IMO. Each is affected by the circumstances of the case which is also very individual and each has an attorney who represents no codefendants.

      Sociology is the study of groups. Society. Does that help? Not without interviewing not only attorneys but also defendants. Seems as though Clair should have known.

      Reply
    2. Elpey P.

      The author can applaud Bob’s agency when it only costs Bob two years in jail, but when the author’s thesis is on the line let’s keep Bob out of it. Apparently letting us hear what Bob would have to say would be less helpful than letting us hear a thirdhand characterization of his assertion of innocence and that Joe has long eyelashes.

      Reply
      1. Sonetka

        He doesn’t even seem to be listening closely to Joe (too busy contemplating his eyelashes, perhaps?) Joe says the cops lied but also makes it clear that he thinks Bob was “crazy” not to take the deal because regardless of the truth, the odds were against them. “He spent two years in jail to see the cops lie on the stand” is a pretty succinct summary of the whole disaster, but all Clair gets out of it is that Bob probably felt empowered by getting to accuse the police of lying in court. Maybe, but how was Bob feeling a month later?

        Reply
        1. SHG Post author

          The “lies, lies, lies” piece here is revealing in numerous ways. Yes, cops lie a lot, but neither Joe nor Bob were innocent either. Sure, we can all appreciate the wrongfulness of the lying cops, but that doesn’t make Bob any more sympathetic or less responsible for his choices.

          Reply
  4. B. McLeod

    Clients have trust issues because of the things we aren’t allowed to do, such as helping them get rid of evidence or witnesses, or suborning perjury. For the clients who operate in a world without rules (or with alternate universe rules that allow anything they want to do), the fact that we have to follow rules set by the system means that we are aligned with the system, and against their interests. They would rather have a lawyer who is “on their side” in the sense of doing whatever batshit crazy thing they want, but the criminal justice system is never going to be revised to permit that.

    Reply
    1. SHG Post author

      An excellent point. And if we were really on their side, we would do that magic voodoo thing lawyers do to get the case tossed for the clients they really like, because they all know there’s some secret that makes it all go away and they’re just not getting it from us.

      Reply
          1. Jeffrey Gamso

            As the boss just said.

            I know more than one case where a client fired a competent and committed PD because he wasn’t a “real lawyer” and hired a self-promoting incompetent with no interest except a paycheck. Wanna guess how things turned out?

            Reply
            1. SHG Post author

              I’ve advised potential clients who want more lawyer than they can afford to stick with their PD or assigned counsel (who are often great lawyers) rather than go to a cut-rate incompetent. But then, there shouldn’t be cut-rate incompetents with a license to ruin.

            2. Dan

              I know it’s unfair to him to make him the poster child for such things, but he’s such a good example, at least in the case I’m thinking of. And that’s how I found this blog.

Leave a Reply

Your email address will not be published. Required fields are marked *

All comments are subject to editing or deletion if I deem them inappropriate for any reason or no reason. Hyperlinks are not permitted in comments and will be deleted. References to Nazis/Hitler will not be tolerated. I allow anonymous comments, but will not tolerate attacks unless you use your real name. Anyone using the phrase "ad hominem" incorrectly will be ridiculed. If you use ALL CAPS for emphasis, I will assume you wear a tin foil hat and treat you accordingly. I expect civility from you, but that does not mean I will respond in kind. This is my home and I make the rules. If you don't like my rules, then don't comment. Spam is absolutely prohibited, and you will be permanently banned.