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 @ 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.