Thursday, May 4, 2017

The Third Man

The first time I defended someone charged with committing a crime against another person, I had the good fortune to be appointed to a young veteran.  He had the misfortune of facing a charge of domestic assault.  A few nights before we met in court, his sister called the police to report that he had attacked her.  The police arrived at the residence and found chaos.  Both my client and his sister were pretty bruised and scratched up and claiming they had been attacked by the other sibling.  The cops were faced with a "he said, she said" situation and two busted up family members, so they placed both under arrest and charged both with fighting.

My client told his arresting officer that he did not lay a hand on his sister, that she had been in a fight the day before, and he thought there were charges pending against her.  To the officer's credit, he checked and could find no record of any such charges.  My client's sister told her arresting officer that her brother was a combat vet, had done multiple tours of duty, had come home with PTSD and was very violent.  She said that she was terrified of him and believed he was going to kill her one day soon.  The officers checked my client's background and confirmed that he had a criminal record full of drunk and disorderly type charges.  As a result, they found the sister's story to be the more plausible account of events and they charged my client with domestic assault.  

When I received my appointment, the DA and the responding officer pulled me aside and told me that this looked like a case where PTSD had played a role and the DA indicated that he would be open to working out a deal that put my client in a hospital for a brief stint instead of putting him in jail.  I thanked him and went to talk to my client.  My client was adamant that he had not attacked his sister and he projected an air of quiet integrity.  So, I believed him and began investigating.  I found out that this guy had voluntarily gone on three tours of duty in Iraq and Afghanistan.  While over there, he had built up a modest collection of awards for bravery and won friends who were all adamant that my client was a defender, not an abuser.  I also spoke with a relative who informed me that my client's sister had gone by different names over the years.  I did a background search using those names and came back with quite a criminal history of starting fights and assaulting people...including an assault charge for a fight that had taken place a few days before my client had supposedly attacked her.  Fortunately, the DA is a professional and dropped the charges against my client.  He also looked at the extensive violent history of my client's sister and he chose to charge her with domestic assault and filing a false police report.  In the end, he worked with her lawyer to get her psychological help instead of jail time because they discovered she suffered from several psychological disorders.  All in all, a great resolution.  

In this situation, the police came in, assessed the situation, spoke with the two people involved, checked both stories, and reached a reasonable conclusion.  The DA checked their work, came to the same conclusion, and humanely offered to help my client instead of seeking to punish him.  The police officers' job was to conduct a thorough investigation and present their conclusions and findings to the DA.  The DA's job was to check their work and ensure that there was enough evidence to support a guilty conviction at trial.  Mine was to come in and advocate for my client.  I worked hard and assembled enough facts and evidence to support his version of the story, successfully argued his case to the DA, and we obtained a just outcome.  This is why lawyers like to talk about an "adversarial system" so much.  My client went through two rounds of impartial investigations and both went against him.  Even he does not fault the officers or the DA for finding against him.  His third round was with an advocate who was partial to him and he won in the third round as a result.  This is more or less the way the justice system is supposed to work - a mixture of impartial fact-finding, partial advocacy, and double- and triple-checking the evidence.  That was a powerful thing to witness firsthand and I learned to always listen to my clients.  They appreciate it and you never know what you're going to discover.  

Wednesday, April 26, 2017

The Taxman Cometh

Taxes were due a week ago and tax day always reminds me of my first advocacy client.  In my second year of law school (making me a 2L in legal jargon), I secured a job in a nonprofit dedicated to serving individuals with disabilities.  My role within this organization was to advocate for clients who were suffering from discrimination for their disabilities.  The executive director had many, many years of experience advocating for disability rights.  She supervised my efforts and I also worked closely with one of my law professors.

My first advocacy client was a sweet, mousy woman who tiptoed through life desperately trying to avoid attracting notice.  She struggled to say 'no' to anyone and that tended to get her into trouble.  Some rather unscrupulous businesses convinced her to sign some contracts that she did not understand and that cost her more money than she could afford.  Due to her ongoing desire to avoid attracting notice, she lived with this situation for quite some time before seeking help.  She has several cognitive and intellectual disabilities, so someone suggested that she participate in a support group our nonprofit organized.  After a few months of coming to our events and forming relationships with my coworkers, she asked for advice on how to handle her situation with the unscrupulous businesses. This is how I was introduced to her.

In Tennessee, all parties to a contract must have the "mental capacity" to enter into a contract.  To oversimplify, this means that everyone must be able to understand that signing a contract has consequences, including the legal requirement to comply with its terms.  After interacting for about five minutes with my client, I realized that she most likely did not have the mental capacity to enter into these contracts.  The individuals who induced her to sign these contracts should have come to this realization as well.  Obviously, they chose to accept her signature.

As this was my first advocacy project, I spent almost 30 hours conducting legal research and another 10 hours writing a letter to these businesses laying out the case that my client did not have the mental capacity to enter into these contracts and proposing that she buy out of the contracts at what we believed was a reasonable price (a similar project would probably take me less than 5 hours total today).  My organization's executive director and my law professor were heavily involved in the letter-writing process and we ended up with a powerful end product.  In the end, none of the businesses chose to pursue the matter and accepted our terms.  We were ecstatic.

Over the next two years, I was privileged to watch that client blossom.   Some of my other coworkers helped her secure employment, set up a strong support network, and to otherwise help her get on her feet.  She was able to find part-time work as a receptionist and to slowly grow a side business.  Shortly before I graduated law school, she came into my office one day to show me her tax return.  She owed an amount less than $20 and she was in tears.  At first, I thought she was upset because she would not be getting a tax refund, but she was in tears because she would be paying into the tax system for the first time in her entire life.  She felt like she was finally contributing something to society and that realization made her literally weep with joy.  "Joy" is not a word I have ever used before in connection with paying taxes.

Advocacy is empowering.  We fought for our client and this communicated to her that we recognized her inherent value.  She was able to score a win and feel like a winner for the first time in a long while.  That feeling spurred her to take on more challenges in her life and to succeed at them.  She turned her life around in a little over a year.  This lesson has paid dividends in my criminal defense practice.  I have represented innocent defendants and I have represented defendants who were very guilty.  Even with the guilty clients, I am always amazed how positively defense attorneys can impact their clients by treating them with respect, with dignity, and by fighting for them.  I have yet to see someone turn their lives around to the extent that my first client did, but I have a long career head of me yet!  

Wednesday, April 19, 2017

Mischief is a Superpower

I have a client whom I have represented 3-4 times in the last several months.  It is always the same charge: disorderly conduct.  He appears to have several intellectual disabilities, he is old, he is alone, and he is in the habit of taking long walks around his neighborhood*.  His neighbors find him to be strange and are in the habit of calling the police and the police are in the habit of arresting him and charging him with disorderly conduct.  The District Attorneys are in the habit of 'letting' him plead to the charges after a night in jail and go home.  His defense attorneys are in the habit of advising him to take that deal.  I got sick of watching my client be subjected to harassment and to mounting court costs, so after getting his agreement, I decided that some alternative tactics were in order.
First Step:  I told the District Attorney that I needed time to consider the offer.  This surprised the DA as most defendants will take any deal and sign any paperwork in order to go home and in order to avoid further jail time.  This also surprised the arresting police officer.  Every criminal defendant in the United States has a right to confront his or her accusers in court.  The arresting officer is almost always an important witness in a criminal hearing.  So, he was in court that morning, but he fully expected that his presence would not be required for very long that morning.  

Second Step:  I sat down in the comfortable chairs reserved for defense attorneys and the arresting officer sat down in a hard-backed and hard-bottomed bench.

Third Step:  I pulled out a volume of Justice League comics I had bought second-hand several weeks prior and had kept in my briefcase until I was appointed to this client again.  I did not have any other court business that day, so I leisurely leafed through it.  The arresting officer was visibly frustrated.

Fourth Step:  I finished reading and pulled out a second volume of Justice League comics.  The arresting officer went from visible frustration to outright anger.  

Fifth Step:  Lunch break.  Turkey on sourdough bread.  I made the sourdough myself.  It was excellent.

Sixth Step:  Back in the courtroom, I pulled out a collection of Archie comics.  The arresting officer stomped out of the courtroom at this point, but he could not leave the courthouse.

Seventh Step:  Last call.  The judge asked me and the DA what we were going to do on this particular case.  The DA indicated that I was considering a plea offer.  I told the judge we were rejecting the offer and would be proceeding to a hearing.  The judge and DA were dumbfounded.  The arresting officer was jubilant and he was mentally preparing to roast my client alive on the witness stand in revenge for having to wait in the courtroom all day.

Eighth Step:  I pointed out to the judge that the neighbors who called the police and had given the police statements were not present in the courtroom.  I further pointed out that the way the warrant was written, the neighbors were key witnesses in the case and that the DA would need to issue subpoenas to compel their presence in court to give testimony.  I made an oral motion to reset the hearing to one week from that day.  The judge granted my motion.  The arresting officer realized to his horror that he would have to go back to his witnesses and compel them to come to court to testify against their wishes.

Ninth Step:  I came back to court a week later and graciously accepted the DA's offer to dismiss the charges entirely.  I told him and the arresting officer that in the future, all such charges against my client would be result in a hearing and I would demand that the neighbors would be subpoenaed as material witnesses.  They said they understood.

One of the rights U.S. citizens enjoy is a right to due process.  If they are charged with a crime, they are entitled to a trial and to confront their accusers in court.  This has the double benefit of both giving an innocent defendant the opportunity to prove his or her innocence and to discourage frivolous accusations.  We may not have struck a major blow for civil rights, but it is a good example of our system working to protect the it was originally designed to do.  Although, we were a bit unconventional in how we went about using the system.

*Outside of court, I spent 45 minutes solving my client's overarching issues regarding loneliness and the lack of a solid support network.  I found a community center that hosted weekly events for senior citizens.  The center partnered with a local church to shuttle these folks to the events.  He is not so lonely anymore.

The Third Man

The first time I defended someone charged with committing a crime against another person, I had the good fortune to be appointed to a young ...