“May have been the losing side. Still not convinced it was the wrong one.”


"This report is maybe 12-years-old. Parliament buried it, and it stayed buried till River dug it up. This is what they feared she knew. And they were right to fear because there's a whole universe of folk who are gonna know it, too. They're gonna see it. Somebody has to speak for these people. You all got on this boat for different reasons, but you all come to the same place. So now I'm asking more of you than I have before. Maybe all. Sure as I know anything I know this, they will try again. Maybe on another world, maybe on this very ground swept clean. A year from now, 10, they'll swing back to the belief that they can make people . . . better. And I do not hold to that. So no more running. I aim to misbehave." ~ Captain Malcom Reynolds

Thursday, January 29, 2009

Damage Control

One of the marks of an experienced defense attorney IMHO is knowing when their job has become damage control as opposed to fighting to win. I don't mean not putting a fair effort into a case - that is part of their job, and part of the system. And I certainly don't mean not looking for times when we as police did make errors, or when the evidence is sufficient for an arrest but not for a conviction (yes, there is a difference).

No, I mean when the case is straightforward, there is no question of the subject's guilt and the police did everything by the book. Then the job of a good attorney is to do everything they can to mitigate the punishment and put their client in the best light before the judge.

These are the cases you see after a bit where they don't call their client to testify, and they frequently don't even call on us to do so - pleading guilty or no contest, stipulating that the evidence is sufficient and hoping for as brief a summary as possible so that the judge doesn't increase the punishment due to what is often offender stupidity.

Unfortunately one of the gentlemen I had in court this week did NOT have an experienced attorney.

Again, there was no question of his guilt - I'd caught him driving drunk, the stop was perfectly legal, his tests were horrible and he made every incriminating statement he could without me even asking questions. Add to that the marijuana he had sitting in the car and told me about, and the attitude he displayed & comments he made during the arrest (and yes, all that stuff gets written down, if not recorded folks) and this was pretty much a slam dunk case. Given that this was his second DUI in a short period the knowledgeable attorney would have done everything possible to beg for mercy from the court and try to keep him from getting too much time to serve.

Instead this attorney (new to the job) tried to fight every little step of the way. They didn't even do a good job of that - no relevant case law, no attempts to try to get his statements thrown out as somehow inadmissible, none of that. Just weak attempts to twist some of my words around for what I observed, and even weaker attempts to tell the judge one thing was said when even the judge would look at her and say "No, they testified to X, not Y." Add to that she put her client on the stand, and pretty much handed him the shovel to dig the hole deeper. Testifying to things like "I really don't remember what all I said that night because I was drunk." does NOT help the situation, trust me.

All in all, it was almost painful to watch. Between what happened that night & the two of them not helping the situation in court he got pretty close to the maximum time to serve for everything, as opposed to something in the middle of the range.

Hopefully some of the other attorneys take her under their wing and teach her these lessons before too long, for the sake of her clients.

5 comments:

Berserk said...

I've seen defense attorneys show up and make the prosecution's case on days when the prosecutor was too lazy or incompetent to do it them self. Beautiful system we've got here.

Amy said...

So, are you able to stifle your laughter? Or does a snicker escape here and there? :)

Chad said...

You'd almost think that maybe the defendant slept with the lawyer in college while drunk and never called her back. She finished law school swearing she'd get him back!

Sean said...

Amy - Trust me there are plenty of times I have to look at my paperwork to keep the grin from being seen.

Chad - That is the best theory I've heard yet sir - it would certainly explain a lot.

Berserk - I can relate. Even better are the days I want to just pat the prosecutor on the head and say "Go sit in the corner and study, I'll call you when we're done here."

Berserk said...

You know, I usually don't try very hard to stifle my laughter. I've been told I should work on that.