Nov 25, 2016 The attorney-client relationship is the foundation for a strong criminal defense
Great criminal defense lawyers live this maxim as naturally and essentially as the air they breathe. Sadly, I have had some criminal defense lawyers unabashedly underline to me that they are not crazy about their clients, do not believe in adopting their clients’ cause as their own, and do not believe in gutting it out for their clients. I ask that latter group, at minimum, to make these stands known at the outset to their potential clients.
The first exercise at the two-week 1994 National Criminal Defense College’s Trial Practice Institute (highly competitive to gain admission, and thus with great and greatful participants) is the initial meeting with our clients. One-by-one, all eight in our group — all but one public defender lawyers — spent the day meeting for the first time with our clients, well-played by actors, using the fact patterns that would apply for the rest of the college to one pair in each of our twelve groups. My client, held pretrial in jail, was a quiet man charged with raping a co-worker in a guest room at their employer’s hotel. From the get-go, he told me of his concern about the “white lady” who was the complainant in the case. When meeting my case partner separately, he told her several times how pretty she was.
We begin with our clients where they are ready to begin or are most focused on beginning. With my NCDC client, he was African American, the complainant was white, and the race factor caused him concern. This was no time for me to talk to my client about the ideal of a color-blind society, rather than for me to remember the reality that race too often plays a conscious and unconscious factor with too many people, including police and their actions, civilian witnesses, prosecutors and their discretionary decisionmaking, criminal defense lawyers (whether assessing racial bias and/or applying racial bias themselves), jurors, and judges.
With my female case partner, she was confronted head on with dealing alone in a jail meeting room with a sexual assault defendant who verbalized that he found her attractive. She thanked him for his compliment in order to move forward. Each situation is different, of course. If he kept complimenting her looks, that may have been the time to talk to him about whether she was the right lawyer for him unless they were going to move beyond his compliments.
During this client meeting exercise, I was particularly impressed with a federal public defender lawyer with the Puerto Rico office, who immediately, naturally, and with realness integrated with his bank robbery client’s good-natured New York-style patter. As an essential part of this exercise, the client-actors were asked to debrief how they felt about their lawyer, and the federal public defender’s client mirrored back the comfort level with his lawyer. That lawyer said that he is big on relating to his clients as just folks. Before we became lawyers, we were just folks, and we relate best with everyone when remain just folks.
In the courtroom, criminal defense lawyers have an audience of at least the judge and their client. In the jail or at their office, conversations with clients ordinarily are simply one-on-one. The lawyer has nobody to perform for during these one-on-one sessions, and should not be performing anyway, rather than battling for and as a team with the client. The client might bring up some necessarily sensitive and uncomfortable matters that give the lawyer the choice to remain open with the client while confronting his or her own demons and vulnerabilities while building essential bridges of good communication and trust with the client, or can clam up and shut down those bridges. When the lawyer chooses the first approach, unexpected magic can unfold.
The Fairfax County, Virginia, government’s website posts a pamphlet for court-appointed criminal defendants entitled “You and Your Court Appointed Attorney A Client’s Guide to Working with an Attorney.” The pamphlet covers some essential basics for all lawyers and criminal defense clients to cover. By the time the attorney-client relationship is well underway, it is essential for the lawyer and client to work closely and openly with each other. The battle lines are drawn, and the two must present a united front against the prosecution.