(BY KEN WHITE, JULY 18, 2016 )
Let me tell you a story about taking clients seriously.
Years ago I had a young client who got into a summer program at Big Prestigious University, or BPU. The Client didn’t go to BPU — he went to a community college, but was accepted by an on-campus summer program at BPU.
Client got arrested for having a gun and a bag of serious drugs in his dorm room at BPU. He was turned in by his roommate, a full-time BPU student, who found the gun and the drugs. Having a gun on any sort of campus is a very serious crime in California, and the DA was in the middle of a safe-schools kick, and Client was looking at hard time and a bad record.
Client swore to me the gun and drugs found in his dorm-room dresser weren’t his. He said that someone — perhaps his roommate? — must have planted them. Sure, I thought. A BPU student acquired a gun and hard drugs and decided to use them to frame some rando — a rando who was, perhaps, not completely unfamiliar with drug culture. That makes perfect sense. Nothing in the evidence the DA turned over suggested any motive for the roommate to do any such thing. I was deeply skeptical, and planning for a very grim set of choices.
But Client’s family had money, so I hired an investigator and had the investigator look into the roommate. Would I have found a way to acquire public money for an investigator if the Client hadn’t had money? Good question.
Guess what the investigator found?
Turns out the roommate was fresh back at BPU after a stint in state prison. Roommate went to state prison because he had been stealing stuff — laptops, phones, and so forth — from classmates at BPU. When roommate was caught, he attempted to pin the thefts on friends, and when that failed blamed mental illness. He was currently on probation, and was having some trouble with his probation officer — and might be trying to curry favor.
No, BPU didn’t warn Client that he was rooming with a recently released felon with a record of falsely implicating others in crimes and a pattern of blaming mental illness for his conduct against fellow students.
By the way, the same mid-sized DA’s office that was prosecuting Client had recently prosecuted the roommate — and had withheld any information about the roommate’s recent criminal activity, as had BPU in my discussions with them.
I subpoenaed roommate to the preliminary hearing and told the DA I was going to interrogate him. The roommate appeared, looking terrified. General counsel for BPU appeared, looking concerned. The judge looked angry — she felt it was my responsibility to arrange for a criminal defense attorney for the roommate if I knew that my questioning might trigger a Fifth Amendment assertion. Interesting theory, judge.
The DA had a long talk with a supervisor, and a long talk with the roommate, and came back to me with a deal: drop the gun charge and accept deferred entry of judgment on the drug charge. If Client completed probation successfully, the case would be dismissed, with no conviction. Notwithstanding how much Client and I wanted to put roommate on the stand and eviscerate him, or force him to take the Fifth and tank the DA’s case, it was impossible to turn down the deal — the risks were too high. Client took the deal, completed probation successfully, and as far as I know has run into no problems since.
I would be lying if I said that I believed the client when he told me the gun and the drugs. But, thank God, I took him seriously — that is to say, I followed up on what he had to say with the resources available to me.
Just as prosecutors are captured by the system and its culture, so are defense attorneys. It is currently fashionable for defense attorneys to say “clients lie” and “most clients are guilty.” I wouldn’t agree with either proposition. Everybody lies; I don’t think clients lie more than anyone else in terrifying and stressful circumstances. Humans tend to remember a version of events that puts them in the best light, something we normally regard as a mere venal sin. It’s just that criminal defense scenarios require a level of precision and accuracy that most human interactions don’t.
Being an effective and responsible criminal defense attorney doesn’t require believing everything a client says, exactly. The policy could be better described as “trust, but verify.” The key isn’t to build a defense on the premise that everything the client says is perfectly accurate. The key is to take what the client says seriously and follow up on it, rather than dismissing them out of hand. If you don’t, you’re not defending the client — you’re defending your stereotype of the client.