Feb 21, 2014 The wild ride of criminal defense – The unfolding inspiration of victories
Criminal defense is a wild ride. One day, I am sitting on top of the world with a big court victory, the next day I am appearing before a very difficult judge to say the least, and the next day I am talking to a recalcitrant probation agent who finally softens up, to my client’s benefit.
The road to victory for my clients includes having the inspiration of past victories unfold into new victories, fuel my energy in even the most seemingly difficult territory, and assure I never give up nor give in.
When a surgeon operates on his or her patient, the patient is anesthetized locally or generally. No judge nor jury stand watch, and no prosecutor is trying to throw wrenches into the surgeon’s engine. When a lawyer defends his or her client in court, the lawyer and client need both of them fully to be aware and in touch with the challenges at hand and ahead, and to be ready and able to handle the challenges dealing with the judge, jurors, prosecutor, and opposing witnesses. The road to victory in many ways starts with how I relate with my clients. Some clients might think it is beyond weird if I invited them to do a short meditation with me to clear out unnecessary distractions and fill ourselves with even more strength than ever; I will reserve that for the clients whom I know will welcome meditating together. Of course, because there is no out there for the mind, I can meditate and start polishing the mirror and clearing and cleaning the air for us both, by reaching clarity and not being bombarded with such unnecessary distractions as misguided naysayers, the 24/7 droning of the multimedia, and the kvetching of colleagues who wonder and worry about where they are going to find the money to make their next rent payment.
I recently went to court for a client charged with violating probation, getting convicted of the same thing three times. I had helped keep him out of jail up to then, and I continued internalizing keeping that streak going as I walked towards the courthouse door. As I looked at the door, I imagined opening it up — rather than having it shut — and keeping my client out of jail once more. Just three days before — after a great trial victory a few days before that — a judge had lowered his customary hammer on my client convicted of DWI with an elevated blood alcohol level, as this judge in this more remote, lower populated (and therefore lower-docketed, with less incentive to give lighter sentences to inspire more guilty pleas to clear the docket) county customarily does, although at least he allowed for weekend jail service. This was but one experience over my two decades of criminal defense work reminding me that we cannot merely will good results for our criminal defendants; we must constantly work for our victories. Nevertheless, visualizing victory brings us closer to victory, and dwelling on the possibility of a lousy outcome in court distracts us from having our necessary weapons of success at the ready to use to the best advantage.
Therefore, as I walked towards the courthouse, in the pouring rain for my probation violation hearing, I decided not to dwell on our challenging judge and recalcitrant probation agent, nor to interpret any bad omen from the pouring rain (such inanimate situations mean little to me in the first place), but I instead reminded myself of two or my particularly spectacular victories in the face of substantial obstacles, to inspire me along.
After speaking with my client, I saw that the probation agent had arrived. I walked over to the agent, who at first acted resistant to my approach, and said there was nothing to discuss, that it was time for my client to pay the piper. Taking an inspirational page from my former public defender colleague Mitch Egber (who switched sides several years ago to prosecutorial appeals, while remaining the same great person he always has been), I proceeded just to chat as human to human and to throw some humor in the mix, including: “Do you think I am trying to play you?” “Yes,” responded the probation agent. I responded: “You have been around the block too long for me to try to do that with you. Now, had you been in your first week on the job, that would be a different story.” We laughed. I then told the agent the advocacy I was going to present to the judge at sentencing — the new conviction made a probation violation finding unavoidable — in my effort for the agent not to be ranting and raving that I was spewing cockamamie palaver.
We had a compelling story about what led my client to engage in his misguided three repeat crimes. I will not go into the details of those arguments here, which I might detail another day. Suffice it to say, my client and I have been together with his cases for nearly three years, working as a united front, enjoying each other’s company during multiple meetings, and working as a united front. Nothing can replace showing a judge that the lawyer truly knows and understands his or her client and is giving voice to his client and the client’s plight and cause as if the client were the lawyer’ most cherished friend or relative, rather than conveying the client as but another source of income for which to reach a comfortable retirement.
No matter how hopeless a challenge might seem at first blush, the advocate must pan for gold among even the most acrid-seeming dung of the case. Sometimes such powerful goldmines can be discovered as to obliterate the stink and its source.
Here, our probation violation judge did not deliver a slam dunk of no jail time, but instead imposed only a partial portion of my client’s original suspended sentence, deferred the start of the sentence for a week, and allowed him to remain a free man pending appeal for a new probation violation hearing, which appeal he will pursue. In the mix, the probation agent confirmed that my client was otherwise doing well with probation and did not request any punishment beyond “a period of incarceration.” The period punctuation mark is small indeed.