SCU – LEGAL PROFESSIONTWELFTH WEEK – CRIMINAL LITIGATION

APRIL 10, 2012

Ex. 12.1 (FAQ’s)

All Read and ready to discuss

Ex. 12.2 All Read and ready to discuss

Ex. 12.3 All Read and ready to discuss

Ex. 12.4 All Read and ready to discuss

Ex. 12.5 All Read and ready to discuss

Read MR 3.1, 3.3(a)(3), 3.6, 3.8

12. CRIMINAL LITIGATION

12.1 Frequently Asked Questions

(12.1.1): Do the Model Rules apply to criminal litigation?

Yes, they do. Rule 3.8 regulates prosecutors, and there are a few sentences and comments dealing with criminal defense lawyers, such as the second sentence of 3.1 and the provisions in 3.3(a) that deal only with criminal defense.

(12.1.2): What else supplies the “law of lawyering” in the context of criminal litigation? (And how is that different from the non-criminal context?)

The field of criminal litigation has several bodies of governing besides the ethics rules. For example, the protections in the Bill of Rights can set a minimum floor for the level of lawyering that a criminal defendant must receive and can set

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limits on the behavior of prosecutors. Prosecutors can be subject to guidelines and policies set internally within a prosecutor’s office or by the state or federal agencies. And the ABA has an entire set of standards for criminal litigation that go beyond the Model Rules.

(12.1.3): What practical realties affect how criminal litigation plays out?

Despite what the rules say, many (most?) observers believe that he prosecutor has nearly all the power and control in criminal litigation. This “uneven playing field” has enormous impacts on how particular prosecutions play out. On top of that, the criminal defendants often lack money to hire lawyers and to incent lawyers to mount vigorous defenses. Public defenders can be burdened by enormous caseloads, effectively preventing them from mounting formidable defenses in many cases.

(12.1.4): What rules apply to the prosecutorial function?

The Constitution, the ethics rules, the ABA Standards, and the case law all agree: the prosecutor should act as a minister of justice, seeking just results. (Whether or not they act that way in any particular case is a different question.) Whereas a civil litigator can seek any advantageous result so long as the lawyer follows the rules and plays fair, the prosecutor must seek only those results that are just. So, for example, if the prosecutor believes the defendant did the crime but that it cannot be proven beyond a reasonable doubt, the prosecutor is supposed to dismiss the matter.

(12.1.5): What rules apply to the criminal defense function?

If you read the rules carefully, and with some knowledge of how the defense function works, you will realize that so long as the defense lawyer doesn’t offer false evidence, she may offer a case theory she knows to be false. We will explain this in class.

(12.1.6): What recent developments have arisen in this field?

Rule 3.8 has two new paragraphs dealing with a prosecutor’s duties after convictions to respond to evidence that tends to exonerate the convicted. There is a current controversy about how well—or how poorly—we support the roles of public defenders. We also have a recent US Supreme Court holding that part of the Sixth Amendment promise of “effective assistance of counsel” requires criminal defense counsel to advise the client of the effect of plea bargains on the deportation status of the accused. (Padilla v. Kentucky)

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12.2. ABA Standards for Criminal Justice (Defense) (excerpts)

Standard 4–3.2 Interviewing the Client

(a) As soon as practicable, defense counsel should seek to determine all relevant facts known to the accused. In so doing, defense counsel should probe for all legally relevant information without seeking to influence the direction of the client's responses.(b) Defense counsel should not instruct the client or intimate to the client in any way that the client should not be candid in revealing facts so as to afford defense counsel free rein to take action which would be precluded by counsel's knowing of such facts.

History of Standard

There are stylistic revisions only.

Related Standards

ABA Standards for Criminal Justice 4–3.1(a) (3d ed. 1993)

Commentary

Securing Facts from the Client

The client is usually the lawyer's primary source of information for an effective defense. An adequate defense cannot be framed if the lawyer does not know what is likely to develop at trial. The lawyer needs to know essential facts, including the events surrounding the act charged, information concerning the defendant's background, and the defendant's record of prior convictions, if any. In criminal litigation, as in other matters, information is the key guide to decisions and action. The lawyer who is ignorant of the facts of the case cannot serve the client effectively.*

The client, whether innocent or guilty, often knows facts that may tend to be

* See also Standard 4-3.1 Commentary.3

incriminating. For example, though the defendant may be innocent, he or she may have been near the scene of the crime at the time it was committed and, hence, may be reluctant to disclose that fact to the lawyer for fear the lawyer will lose confidence in his or her innocence and thus fail to pursue the case zealously. The lawyer must recognize this reluctance and overcome it in order to obtain the facts necessary for an effective defense.

Defense counsel has sometimes been depicted as following the strategy of informing the client of the legal consequences of various factual situations in order to influence the client to adopt the factual version most favorable to a legal defense, for example, the claim of insanity.† A lawyer who follows this course handicaps an effective defense by promoting ignorance of facts that may ultimately be revealed at trial.

Calculated Ignorance of Facts by the Lawyer

The most flagrant form of “intentional ignorance” on the part of defense lawyers is the tactic of advising the client at the outset not to admit anything to the lawyer that might handicap the lawyer's freedom in calling witnesses or in otherwise making a defense. This tactic is most unfortunate in that the lawyer runs the risk of being the victim of surprise at trial. A lawyer should make clear to the client the imperative need to know all aspects of the case; the lawyer should explain that all of the client's statements and those of other witnesses must be fully investigated. To secure candid disclosure from the client of facts that are often both incriminating and embarrassing, the client must be sure that these facts will not be divulged by the lawyer. Accordingly, the client should be given an explanation of the extent of the privileged status of all information revealed to counsel.‡

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Standard 3–1.2 The Function of the Prosecutor

(a) The office of prosecutor is charged with responsibility for prosecutions in its jurisdiction.

(b) The prosecutor is an administrator of justice, an advocate, and an officer of the court; the prosecutor must exercise sound discretion in the performance

† See, e.g., R. TRAVER, ANATOMY OF A MURDER (1958).‡ See Standard 4-3.1(a).

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of his or her functions.(c) The duty of the prosecutor is to seek justice, not merely to convict.(d) It is an important function of the prosecutor to seek to reform and

improve the administration of criminal justice. When inadequacies or injustices in the substantive or procedural law come to the prosecutor's attention, he or she should stimulate efforts for remedial action.

(e) It is the duty of the prosecutor to know and be guided by the standards of professional conduct as defined by applicable professional traditions, ethical codes, and law in the prosecutor's jurisdiction. The prosecutor should make use of the guidance afforded by an advisory council of the kind described in standard 4–1.5.

History of Standard

Standard 3–1.2 was Standard 3–1.1 in the second edition. Section (b) has been revised stylistically to add the “and an officer of the court” language. Section (d) was Standard 3–1.4 in the second edition of these Standards. Section (e) contains a stylistic revision. The final section in this Standard in the second edition—former Section (f)—has been deleted, but some of the language has been moved to Standard 3–1.1.

Related Standards

ABA Model Code of Professional Responsibility Preliminary Statement; DR 1–102(A)(4), (5); EC 6–1; EC 7–13; EC 7–14; EC 9–6 (1969)

ABA Model Rules of Professional Conduct Preamble; Scope; 1.1; 3.8; 8.4(c), (d), (e) (1983)

ABA Standards for Criminal Justice 3–2.8; 3–3.4; 3–3.8; 3–3.9; 4–1.2; 4–1.5 (3d ed. 1993)

NDAA National Prosecution Standards 1.1; 1.3; 1.5; 1.6; 6.1; 6.2; 6.3; 25.1; 25.3; 25.5; 86.1; 92.1 (2d ed. 1991)

Commentary

The prosecutor plays a critical role in the criminal justice system. All serious criminal cases require the participation of three entities: a judge (and jury), counsel

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for the prosecution, and counsel for the accused. Absent any one of these entities (and barring a valid waiver of counsel), the court is incomplete. In short, a “court” must be viewed as a structure with three legs, requiring the support of all three.

Although the prosecutor operates within the adversary system, it is fundamental that the prosecutor's obligation is to protect the innocent as well as to convict the guilty, to guard the rights of the accused as well as to enforce the rights of the public. Thus, the prosecutor has sometimes been described as a “minister of justice” or as occupying a quasi-judicial position.

The prosecutor may also be characterized as an administrator of justice, since the prosecutor acts as a decision maker on a broad policy level and presides over a wide range of cases as director of public prosecutions. The prosecutor also has responsibility for deciding whether to bring charges and, if so, what charges to bring against the accused, as well as deciding whether to prosecute or dismiss charges or to take other appropriate actions in the interest of justice. Since the prosecutor bears a large share of the responsibility for determining which cases are taken into the courts, the character, quality, and efficiency of the whole system is shaped in great measure by the manner in which the prosecutor exercises his or her broad discretionary powers.

The legal profession must continue to develop an awareness of the importance of a vigorous, fair, and efficient prosecutorial system and give high priority to the sponsorship and support of those measures necessary to implement this objective. The court and defense counsel will treat the prosecutor with the respect that facilitates furthering this objective, however, only if the prosecutor maintains proper professional detachment and acts in accordance with applicable professional standards. Such professional integrity and detachment is furthered by the prosecutor's efforts, independent of the prosecutorial role, to engage in appropriate law reform activities and to remedy injustices that the prosecutor sees in the administration of criminal justice generally in his or her jurisdiction.

As the public official in constant contact with the day-to-day administration of criminal justice, the prosecutor occupies a unique position to influence the improvement of the law. As one national study has noted, the prosecutor “affects the development of legal rules by his arguments in court. He can help bring about needed reform by pressing for changes in bail practices, for example, or in

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procedures for the appointment of counsel.Ӥ Although the legal profession does not bear sole responsibility for law reform, it has a clear duty in this respect.** In recent years, moreover, increasing numbers of lawyers have recognized their responsibility in the administration of criminal justice. Prosecutors should take advantage of this climate of professional concern by assuming leadership to improve the quality and efficiency of criminal justice. It is in the public interest for the prosecutor to foster good working relationships with the defense bar, including defender agencies, and to participate in such activities as criminal law sections of the organized bar and joint seminars on criminal law and procedure. Reforms and improvements in the criminal law will more readily gain the approval of legislative bodies and the public if they are the joint work product of both prosecutors and defense lawyers.

It is also the duty of the prosecutor to become intimately familiar with and adhere to the legal and ethical standards governing the performance of his or her official duties. Like other lawyers, the prosecutor is subject to disciplinary sanctions for conduct prohibited by applicable codes of professional conduct in his or her jurisdiction. The Prosecution Function Standards are intended to advise and assist the prosecutor in the honorable and professional performance of prosecutorial duties. To this end, in situations of doubt as to the proper course of action and where available, the prosecutor should make use of the guidance of the advisory council on professional conduct that these Standards recommend be established in each jurisdiction.

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12.3. Prosecutors in Their Own Words (Baker)

Chapter Three: Tactics

After all the plea agreements are made—which accounts for 85 to 90 percent of the prosecutor's caseload—he or she is left with, the cases that must be taken to trial. It's not easy to win a jury trial. According to Newman Flanagan, executive director of the National District Attorneys' Association and the president of the American Prosecutors' Research Institute, the conviction rate in jury trials for prosecutors nationwide averages only about 62 percent. "You ask the public what

§ PRESIDENT’S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 147 (1967).** ABA Model Rule of Professional Conduct 7.1; ABA Model Code of Professional Responsibility EC8-2.

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the conviction rate is in jury trials," laughs the former district attorney of Boston, Massachusetts, "and they will say it's upwards from 90 percent. When they hear that 62 percent figure, they go, 'My God! That's outrageous. Half of them are getting away.'

"I tell them, 'Wait a minute, you don't think this defendant is trying his case because we caught him red-handed in the store he robbed, do you? No, this guy is trying his case because there is merit to a potential not-guilty verdict. This guy knows he's got a shot.' "

The defendant and his counsel know "he's got a shot" because of disclosure. Rules of discovery or disclosure in state judicial systems require both the prosecution and the defense to reveal all the evidence and witnesses that will be introduced at trial. Both sides know exactly who will testify, and often what they will say. Both sides know what the jury will see, and when they will see it.

Ah, for the good old days before the majority of the states changed their criminal codes, when there was no discovery, and a prosecutor didn't have to tip his hand by giving up all his evidence and witnesses to the defense counsel before the trial. The writers for the old Perry Mason television programs got it all wrong. In the real world, Perry would have been the ambushed lawyer in the courtroom, sitting at the defense table with his mouth opening and closing like a beached fish as the district attorney, Mr. Burger, called a surprise witness, introduced new evidence, or started a totally unexpected line of questioning that confirmed the guilt of the defendant beyond a reasonable doubt. A former prosecutor who is now on the bench reminisces about that glorious era:

"The defense attorney had to work an awful lot harder to find out anything about his case. He wasn't being handed the prosecutor's file. There were only a couple of sources of information for the defense. It was common then, and almost never happens now, that preliminary hearings were held in criminal cases before the matter even went to the grand jury, so there was a limited amount of discovery that was done there. At least some of the witnesses testified under oath, and there was some indication as to what was going on in the prosecutor's case.

"There were also some defense attorneys who had pretty close friends on the law enforcement agencies—either the police department or the sheriff's department. Those who did a lot of criminal practice would also handle the divorces for the cops

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and build a relationship with them, so they would get a lot more information than we were willing to give them.

"The greatest tool that was used by both sides in our area was True Detective magazine. One of the local court reporters was paid a penny a word to write his own lurid version of these crimes for the tabloids, and there would be more about our cases in the magazine than there were in either the prosecution or the defense case files. His stories always came out before the trial and had amazing things in them. He would have photographs of the evidence and interviews with the defendants. So we always went out to buy a copy and put it in our briefcases. If you didn't have a copy, then you were incompetent counsel.

"Not having the discovery was a lot of fun for prosecutors. Since you weren't tipping your hand and telling them everything about the case, you were allowed to spring great surprises on these people.

"For instance, one day I had a burglary case. I was talking to the defense attorney the day of trial, and I said, 'I don't understand why this guy's not pleading guilty. We made him a reasonable offer.'

"'Oh no, no, he's totally innocent,' the defense attorney says.

"'I might as well tell you now. I've got fingerprints inside the residence. That places him in there.'

"He walked back to the counsel table, whispered to his client for a while, came back, and said, 'Oh, he can explain those fingerprints. He had visited there on a couple of occasions. The baby-sitter had him over. He knew her and had been in the house in the living room, so his fingerprints being there is no problem.'

"So I reached down in a bag and pulled an item out and threw it on the counsel table. He said, 'What's that?'

"'It's the dryer vent from the basement window that was ripped out. His fingerprints are impressions in the lint of the vent, a set of eight prints. Is that how he visited the baby-sitter every time he went over?' The guy pled guilty then.

"All of a sudden, here comes the evidence in the case, which would come as a terrible shock to them. So those days were fun."

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Those days may have been fun, but the results were often unfair and generally inefficient. The crime rate outstripped the ability of the system to handle cases in the 1960s and 1970s. At the same time, taking their lead from the Supreme Court dominated by Justice Earl Warren, the public became aware of the fundamental inequity of trial by ambush. As a result, the majority of the states instituted changes in their criminal and civil codes, making disclosure a part of the defendant's basic rights in trial. The introduction of discovery was perhaps the most momentous change in criminal prosecution in the last hundred years. A longtime defense lawyer, with over thirty years' experience practicing in a primarily rural part of a Southern state, remembers the very first time he filed a motion for discovery:

"The first time I introduced a motion for disclosure, what we call a motion for discovery, was in 1971. Frank Jenkins, the state attorney was at his raging, steaming best back in those days. I presented the motion to him right in front of old Judge Harper, and Frank Jenkins said, 'What is this, some ACLU trick?'

"The judge boomed from the bench, 'No, Frank! These are the new rules of criminal procedure, and you're going to abide by them!' That probably was the death knell for the old-style-fire-and-brimstone political animals. He didn't believe in giving out the names of his witnesses, which meant giving away his case as far as he was concerned. Of course, the end result has been very beneficial, because there are no more surprises. Everybody knows in advance exactly who's going to testify for the state and for the defendant. Prosecutors go out and interview the defendant's witnesses. As far as efficiency in prosecution, there are more pleas now, because it's easier to assess the vulnerability or the strength of the state's case. You don't have to try them all, and they couldn't do that anyway these days. There are just too many cases."

Leveling the playing field afforded prosecutors with a more swift and orderly machine to dispose of the majority of their burgeoning caseloads, but it has also had the effect of winnowing out the no brainers. Only the difficult cases tend to come to trial. Defendants don't get away with murder because of a "technicality" in the trial process exploited by amoral defense lawyers. A guilty person may, however, walk away scot-free from his or her crime because law enforcement or the prosecutor have made a mistake. The margin of error that can be accommodated in prosecution is narrowed to a hair's breadth.

Some new, young prosecutors face this challenge with the beancounting zeal of an IRS auditor crossed with the techno-dependency of a full-blown computer

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dweeb. The cyber-library of precedents is exhaustively researched. Every question, every motion, every point in closing arguments is written out and virtually read to the court in an attempt to eliminate any risk of an omission or gaffe. Fear of losing has led to an exponential proliferation of experts in the judicial complex—experts on jury selection, expert witnesses of every stripe, professional trial coaches giving expert "How to Prosecute ..." seminars in ever more narrow categories.

Careful preparation, attention to details, a thorough knowledge of the record on similar cases are all essential to a well-prepared prosecution. But in the end, there really is no way to cover all the bases. There is no surefire formula for success, no machine that can churn out a guilty verdict. There are just too many people involved—a minimum of sixteen, not even counting the victim and witnesses—with the infinite variety of behavior, emotion, and ways of thinking that humans are capable of. Outcomes are unpredictable. A good prosecutor needs good instincts more than good computer skills.

A trial is still essentially civic theater, a human drama, and jurors appreciate a talented actor with a full repertoire of familiar guises—the ability to make them comfortable like an old friend, to guide them like a respected father, to fire them to righteous indignation like a good preacher. Age-old rhetorical skills, the ability to think on your feet, the patience to wait quietly rather than jumping in to fill a witness's sudden silence—these are the genius of a good trial lawyer and a winning prosecutor. Their descriptions of successful tactics sound like pointers from a veteran of the Broadway stage on timing, on overplaying an emotional scene, on how to handle hecklers. Winning prosecutors don't talk much about legal precision or worming obscure judicial concepts into a case. For them the point is connecting with other people, inspiring trust, convincing the skeptical, charming the adversarial, befriending the oddball, browbeating the pompous, and giving the guilty enough rope to hang themselves if they are foolhardy enough to take the stand.

Perhaps none of tricks of the trade mentioned in this chapter is more practical than this bit of advice on personal hygiene:

"Very early in my career, I was trying a drug case with a supervising attorney. He is very heavy, a very overweight guy, although a nice guy, and he had a very heavy beard. Being overweight, after six or eight hours in court, he was 'fragrant,' and his beard would start poking out in this thick five o'clock shadow. By the end of the day, he looked like he'd been on a week-long drunk.

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"We're trying this case, and we're going to the jury late in the evening. The judge broke for supper about six o'clock, and everybody went to eat. We met again about seven. The defense attorney looked just like he had at nine o'clock that morning, when we started.

"I realized that he must have a duplicate outfit. What he did during the break was go back to his office, shower and shave, change shirts and suits. He was as fresh as when he started. I knew because of the shirt he was wearing in the evening—even though it was the same color and pattern as his soiled shirt, it didn't have a monogram over the pocket. He had completely changed into an identical outfit, and he looked sharp in front of that jury. We looked whipped.

"It's clever, a neat trick. I asked him about it later, and he evaded the question, so I knew I had him. If you have long, serious trials that wear you out, you ought to think about things like that. Instead of going to lunch, run into the damn shower and get yourself back together."

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My whole attitude as a prosecutor was, you came in and you took over the courtroom. The judge just happened to be sitting there. Normally, I tried not to get too closely involved with the victims in a case. I'd stay as objective as I could while I was trying it, because that made it much easier for me to work and do my job. You've got to be totally objective and professional. The prosecutor must appear before the jury as a fair and unbiased representative of justice, running the entire operation. You should be indoctrinating that jury, telling the jury just what life is going to be like for them. What they can expect. Tell them everything you can possibly tell them. Tell them all the laws. Tell them all the things that the defense attorney wants to tell them about the case as well so that he'll haw nothing to say. And if he does have anything to say, it will be that he's going to agree with all the things that you just said. It works. The defense attorney would not only agree, he would say, "Just as the prosecutor told you ... and as the prosecutor explained to you."

You want to build your case so those people are relying on you. You're the only expert in the court. You're the one who's telling them everything. You're the one who they rely on totally, and you must have them totally sold on that.

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But nothing you say is just your opinion. You never say, "This is my opinion; this is what I think." You say, "This is what the facts are going to prove to you, folks. This is what's going to be established." Never personal. Never say, "I think this is a bad man." Don't worry about that. Tell them, "This is what you are going to find about this defendant." It's all their judgment. The prosecutors who get up there and begin saying, "I think and I feel," if there is no objection from the defense, half the time, as a judge now, I'll stop them anyway. "This isn't the way a case is tried, and what you think has nothing to do with it."

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I had gotten in with a bunch of lawyers in a civil practice. My job was to rain-make, go get clients in. I was in the courtroom less and less. When I got this job as a part-time prosecutor five years ago, I didn't realize how shabby I had gotten as a trial lawyer.

I got over to my first case, and it was a black guy charged with possession of a firearm by a convicted felon. The public defender over there, I thought the guy lied to me. We made a deal, and we went to talk to the judge about it, and this guy changed it—I thought. That really irritated me pretty good, so we set it for trial, and he just ripped my ass. Later, I found a handwritten note in my file, in my handwriting, that laid out the deal more or less as the public defender had stated it for the judge. I had just forgotten. He hadn't led me on.

This black guy was a convicted felon years ago, who had led a decent life for a long time. The reason he had a gun was that life was just as dangerous out there for him as it is for the rest of us. You had a white middle-class jury sitting there listening to his lawyer telling them, "Hell, yeah, he had a gun. If you lived where he lives, you'd have a gun, too." I'm sitting there thinking, "He's right. That's right." He just stomped a mud hole in my ass on that one.

It took me a long time to get back on track. I want to say I was timid, but it wasn't really timidity. I was faltering in my command of the evidence. My procedures were weak. It took me a long time to get up to speed. I think I did.

The real secret to trying cases is to try and tell stories that people will listen to. You tell something in the fashion of a coherent story—there's a beginning, a middle, and an end—the subject matter flows. If you approach cases as a story with a theme and characters and a logical ending, you'll do a couple of things: You'll

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present the case in an orderly fashion. "I want to tell you, the jury, a story. I have to start at the beginning of the story and fill in all the little blanks with witnesses and evidence." They can perceive and receive the evidence clearly that way if they know beforehand what the story is about. Maybe it's about the allAmerican dream gone bad. It's about unrequited love. It's about avarice and greed. It's about envy, or whatever the fuck it is about. It's always about something. A few crimes don't make sense, but most of them have a story. If the jury knows what the story is about, when they hear it, it makes sense and the things you tell them you're going to do make sense, then you have credibility, which is critical. If you lose your credibility with the jury, it's over.

So if I'm trying a case, I'll tell you, "This is about someone who wants to beat the system, someone too lazy to do anything except try to beat the system." Then I outline this story about a guy who develops bogus bank accounts and begins kiting checks around the community. He's got some grand scheme and—boom! —it finally falls apart. I'm not going to get up there in front of the jury, and say, "This is a complicated financial case, and you need to pay strict attention." What's that mean? But if you're telling a story, when the first witness gets up and says something, they have a general idea of how that's going to fit into the big picture. That's why it's critical that they understand the story.

In the basic rape or possession of drugs cases, we don't need lawyers to try those. You just need tape recorders and enough courtrooms and jail cells. But in the case where the difference between conviction and acquittal is a lawyer, you have to make it into a story.

I started doing that and getting more fluid with my evidence. The other key to trial work is the rules of evidence—what's admissible, what isn't admissible. If you don't know your evidence, you're fucked. You can be the best bullshitter, the handsomest, most charming guy in the world. If you don't know your evidence, you're done. Take some time off, and go home early.

You do have to depend on the police. If you don't have good law enforcement out there, you can't make a silk purse out of a sow's ear sort of thing. We had a case here years ago. The city manager was accused of cutting the mayor's wife's head off with a machete in front of the mayor's house. One of the prosecutors got to the crime scene and had gone into the house when he heard water running. He went outside on the sidewalk—this was in broad daylight—and he found one of the

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police officers washing the area down, just "cleaning up," and destroying the crime scene. The guy got acquitted, by the way.

Teifel McMann was probably in his early forties. He was an appliance salesman and repairman. He had a little shop down off the main drag. He'd had trouble with alcohol in the past. Teifel was drinking one morning, and he decided that he needed to go buy himself a piece of crack. He went into a laundromat back in this black neighborhood, where there are some small-time street drug dealers playing cards. Teifel buys his crack and leaves, but he comes walking back a few minutes later, pissed off about the size of the rock he bought. There is a scuffle, with wildly varying reports about who hit who, but Teifel goes down and cracks his head open on the floor. He has head injuries, and he ends up dying shortly after paramedics arrive.

I get the case. You can imagine the cooperation I'm getting from the community around there. Almost every witness inside and outside the place was a drug dealer or a drug buyer or a friend of the dealers. Except for one: There just happened to be one seventeen-year-old straight-A high school student in there doing her mother's laundry. She put it on all of them—said all six dealers hit him. So I charged them with manslaughter. Not any one blow killed the man, but all the blows added up to him slamming his head into the floor and cracking his skull.

But I was having trouble. She lived in the neighborhood and was afraid to testify. There was only one other guy I had a chance with, a guy named Hernando Nathan. He's twenty years old, no job. If you go down there right now, he's on the corner drinking a beer. He's one of these funny guys—jokes all the time; everybody knows him. He was interviewed by the detective for the police department.

Let me tell you something, if you think LAPD has problems, you just haven't seen our local police department. They are so understaffed and undertrained, it's sickening. For instance, most people who watch television would realize that when a crime like this has been committed, the police force is supposed to tape off the area to preserve the crime scene. Then they collect evidence, take some photographs. This police department is reported to have told the guy who owns the laundromat soon after the victim was removed to "just mop it up." So there was no preservation of the crime scene, not photograph number one.

After the detectives interview the various witnesses, I'm supposed to distribute these reports of the interviews to the defense lawyers. There are six

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defendants, six defense lawyers. David Farley, the detective in charge of this case, was not on time giving me the reports. I sent him two letters saying, "Look, I've got the defense lawyers on my back. You need to give me the reports."

All of a sudden, the date is set for Farley's deposition. Depositions were a gas in and of themselves, with seven lawyers around the table for every witness. Farley shows up for deposition with the reports. There are six packets, one for each defense lawyer, containing the witness reports we were missing. Hernando Nathan's is one of these. Farley has a copy for everybody but me. I say, “I’ll get it later. Let's just go. Let's do it.”

A month later, the trial date is set. I have witness problems. Some of the defendants have ended up pleading to a lesser charge and have become witnesses for the prosecution, but as you can imagine, everyone's version of what happened that day is different. When you use a co-defendant, there is always the argument in the jurors' minds that this witness has been given incentive. But then there's old Hernando, standing right there outside the plate-glass window looking into the laundromat. The weekend before the trial, I finally get hold of Farley, and I say, "Let's get together and prepare. I know what's in them, but I need you to give me the witness statements you never got to me," and I named off a few of them. So on Saturday before the trial is to start on Monday, I get Hernando Nathan's statement. It's a bunch of garbage, and then at the bottom of the transcript of the statement it says in handwriting, "All six hit the man." I had talked to Hernando in the preceding months, and he would say, "Oh no, man. I didn't see nothing, man. I didn't see nothing. Nothing, man." But I realized that I needed something up there besides my high school girl, so I decided to put Hernando on the stand anyway, let him say that, and then impeach him with his own sworn statement.

So I get Hernando on the stand. "I didn't see nothing, man. C'mon, what you doing to me? I didn't see nothing, man."

"Hernando, 'All six hit the man,' didn't they?"

"No, man."

“Do you remember giving a written statement?”

"Yeah, man. I remember, yeah."

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"Isn't this what you swore to?" So I read it out, line by line, sentence by sentence. I get to the last sentence. "And then you told the officer, 'All six hit the man.'"

"Objection!" The defense attorney gets up. We go to the bench. His copy doesn't have the last line written on it. I'm saying, "Wait a minute, wait a minute." I look at his copy. Oh my God! I'm in big, big trouble. It wasn't even Hernando's handwriting. It's the cop's.

Then the defense made what in my opinion was a strategic error. He moved for a mistrial, which means the case is over, but the defendant can be retried. The judge granted the mistrial. He brought the cop over out of the jury's presence, and Farley says, "I don't know how that got there. Wow, I don't know. Wow, man, wow. I can't explain that."

"Is that your handwriting?" the judge asked him.

"Yeah."

"What do you mean," I said. "It's your handwriting, you put it there."

Next month, I tried the guy again. I didn't call the detective or Hernando. The guy got convicted with the high school girl's testimony and a couple of co-defendants.' Strategically, the defense had me on the ropes in the first trial. What they should have done was call the cop back to the stand and rake him over the coals. Anything he said at that point was a potential lie. Instead, the defense went for the immediate gratification of a mistrial without looking down the line.

An independent investigation was set up. Farley was tried and convicted for evidence tampering and barred from working in law enforcement.

It's a small community. Everybody knows everybody else. So if an outside perpetrator committed a crime on a local person, you knew the family and it was as though you were a relative being charged with going forward and making sure that justice was served, "By God, we're going to get that guy." That's different than it would be in a larger community. If somebody was wronged—"My sister was raped"—I'm going to defend her honor. I'm going to get that guy. But it is something that you have to guard against, because you lose your objectivity, and that's not good. We had a good sheriff. He was also the local schoolbus driver.

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Whatever the sheriff did and however emotional he might become, I at least tried to avoid getting that involved.

When the local youngsters got askew of the law either for alcohol or drugs—and drugs more importantly—in a small community, you bent over backward to help them out.

"Now, this is the last time I'm going to warn you: You get into trouble with this marijuana one more time, and that’s it. You know, this is a crime. You can get sent to prison."

“I’m sorry. I won't do that again.” So get him all the probation you can or deferred prosecution. I can say now, this particular guy I'm thinking about is an accountant who has an office down the street today. He is a community-minded, responsible citizen. Except for somebody's discretion back when, he would have a felony and wouldn't be allowed any position of trust. Again, the sheriff upheld the law, and law enforcement couldn't condone a lot of that, but he was as softhearted as anybody when it came to a local person being charged with something that did not involve a violent crime. We bent over backward to keep the kids out of the prison. The prison was right there in town, too, so you knew how tough that was going to be.

You have to separate the important stuff from the unimportant stuff. I'm a bare-bones prosecutor. If I've got four people standing on a corner that see John Smith shoot Jane Doe and two of them get on the stand and do a very credible job of saying that, I'm probably not going to use the other two. I don't think the defendant can possibly deny his guilt, if that's what he's trying to do. For the most part, the witnesses we get are not articulate or educated. Think of where most murders take place. Think of bars and back alleys. They may be the nicest people in the world. I like to drink, myself, so I've been found in bars. But, you know, you've got to be careful who's testifying. It's not that they're lying. If they are not particularly educated, the defense attorney can make them look foolish. Then the jury sits there, and instead of seeing this for what it is—maybe this guy isn't the quickest guy in the world—they think, Maybe he's lying, maybe we should disregard his testimony. Witnesses tend to contradict themselves on minor things. If I can get two of them that come across quite well, I'll forget the others, because I'm not going to gain anything by putting them on the stand, and I might lose something.

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I'm not much for overkill. On the other hand, I'm not going to lose some wonderful witness, either. If I've got a minister, a priest, and a rabbi, and I put the minister and the priest on and they come off real good, I'm going to use the rabbi, too. But normally you don't have that. You've got regular, real people.

Other prosecutors are the exact opposite. They want to build up every case as much as they can. I tried a case with another one of the assistants down there, a good friend of mine, and a good, good prosecutor. Yet, his theory on these things is the exact opposite of mine. He hurls everything he can get his hands on.

In this case, we had the murder of a guy who ran a Mack tool truck. There's lots of money in those tools. Thousands, maybe a hundred thousand dollars' worth of tools in each truck, at least. A couple of yahoos decided to rob him. They set it all up. They'd called and called and tried to get this guy. They say they'll meet him down by the railroad late at night, but they promise him a sale. They'll buy at least 250 dollars' worth from him. The guy can make an extra fifty bucks, and he's trying to feed his kids, so he goes. They actually shoot him right there at the meeting place by the railroad tracks. Then one of the guys drives the truck with him in it all the way down to a small town fifty miles away. They take the tools and leave the truck in a field. It's dark, and no one can see it. Unfortunately, the guy is still alive. He doesn't die until the next day, so he was probably in a lot of pain.

Now, the defendant could argue accident—the gun went off by accident. Our guy is dead, and the other thief is not going to testify, so we don't have anybody to refute that. He can do a lot of things, but he's not going to be able to get out of the fact that he and his buddy actually were involved in this act. And there's no question the victim is dead. We have plenty of good evidence to prove this guy is guilty.

You have to understand, though, that when the police get down there, they don't know anything. They go and they find this poor guy dead, but the facts of the case aren't put together until a few days after that. They're doing things that are good police work but which don't mean anything in retrospect. This time it was taking tire tracks from the other end of the field from cars that had nothing to do with this. But they didn't know that this was not evidence at the time. This other prosecutor I'm working with, George, is trying to put all this stuff into the case—plaster of Paris casts of tire tracks. Faced with all this extra information, all the defense has to do is argue that maybe there is something we don't know about. Then these jurors, who think that real trials are like on television and who want to fancy themselves as a combination of Sherlock Holmes and Perry Mason, they're going to

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solve what really happened, because all of us are just klutzes and don't know it. That's where you get some bizarre jury verdicts. But George is throwing everything out to see what sticks—he doesn't want to be accused of holding anything back.

The first trial, we did it his way. The first trial was a hung jury. The second trial, we did it my way, and we got him convicted.

The insignificant grand theft of a riding lawn mower—those are the ones you lose. People don't care. "Maybe he took the lawn mower, maybe he didn't take the lawn mower; but I don't want to send the guy to prison for trying to mow his yard." These cases are great for the public defender controlling the docket. If the crime just has no significance in the grand scheme of things, juries don't want to convict them, and you're more likely to lose those. Nobody will turn a murderer or rapist loose. O.J. may be an exception. But in the grand scheme of things, that's not going to happen. Time after time after time, you'll get convictions ninety-five out of a hundred times.

We had an intern this summer, and we had a guy who was a career car thief coming up for trial. He had a record that looked like the Manhattan Yellow Pages. He started back in the 1960s stealing cars. Where you or I might call a cab to go somewhere, he'd steal a car. The state attorney's office wanted to habitualize him, and they took him to trial, and we put the intern in to try him. The newspaper guy sat down with me and said, "Is this like shooting fish in a barrel?" I told him, "First of all, this is the kid's first trial. You don't want to give him a case with warts on it. You don't want his first time at bat to be a bad experience. This defendant is a habitual felon, and he needs to go away. You can't make a deal. There isn't a deal to be made."

The kid is worried about picking a jury, and like most greenhorns, he did overkill in his preparation, had all these questions to ask the prospective jurors. I told him, "You don't need to try and pick good jurors. Everybody is a good juror for somebody who will walk up right in front of you, jump into your truck, and take off. What you need to do is you need to detect the squirrels." I'm not sure that message got through.

The truth is, they are all, for the most part, pretty good juries. But you always have these few people hidden in the general population, sprinkled throughout, the ones who will get everybody offtrack on some little quirk of theirs, or the ones who

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proclaim that everything is subject to doubt. "I think therefore I am. But how do I know I think?" Those guys. If you can get those people out, you're all right.

As a prosecutor, you want people who are predisposed to convict. The other side wants people who have a more open mind and are less likely to convict. People talk about how trials are a search for the truth. That's bullshit. You're trying to stack it and they're trying to stack it, but everybody is trying to get rid of the crazies, because you don't know what they're going to do.

Never leave a person with a bow tie on a jury. I've known that from the get-go. People with bow ties are squirrely. You cannot predict what they're going to do. I have personal confirmation of this. I hired this guy a couple of years ago, and he comes in with great business experience, and he looks good in a pinstripe suit. Looked like the perfect candidate. Hired him. The second day, he came to work in a bow tie. I went, "Oops." Boy, I was right. Oh Jesus.

There was an old saying around our prosecutor's office years ago. "In jury selection, the first thing you do is get rid of all the P's." What that meant was you got rid of everybody whose occupation started with the letter p. That included professors and preachers, and plumbers and painters—professionals of every stripe. There was no rhyme or reason to it—-it was just an old saying.

Over the years, the jury selection process has become quite an art of its own, and there is a lot more emphasis placed on it than there ever was before. I think there is definitely some merit to the process. A lot of lawyers, myself included to a large extent, we try cases strictly from the gut. In jury selection, I make a lot of decisions on jurors for no other reasons than the gut—how the person is reacting to me or not reacting to the other lawyer, or subtle things that are unspoken, not really part of the process. It's like making up your mind about people when you first meet them. I tell people all the time. I've made a living over twenty years now doing nothing but evaluating other people, whether they're witnesses, jurors, or defendants.

Unfortunately, court is not always fair for the defendants. But there is one thing I have noticed. When it gets to a jury, I'd say 95 percent of the time—maybe it's just a stroke of luck—-whatever makes it happen, jurors actually do the right thing. Most of the times the decisions they make are fairly rational, and right on the money. Most of the time if they say the guy is guilty, he's guilty. And if he's

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innocent, they let him go. That's one of the few good things that surprised me about the criminal system that actually works.

Everybody's fighting it tooth and nail, but once they get into it, people on juries take it very seriously. They really put their heart into it. They really try to do the right thing. They know somebody's life is on the line. Or even if it's not on the line, if it's civil, they still take it seriously and try. You'll find some jurors who sleep through the whole trial, but most of them do a good job, and that's one of the rewarding things about the law.

We had two constables who were just absolutely delightful beyond belief. At that time, which was a while ago, the constables selected the jurors. These two fellows always decided how the case should end and would fix the jury, considering what they thought the outcome should be.

There was a case where the prosecutor said to the judge, "I don't want this man to sit on this jury because he can't hear.'' This guy was deaf as a board.

The judge didn't hear so well himself. The judge leaned over and he said, "WHAT?"

The prosecutor said, "He's deaf, Your Honor! He's DEAF!" So the judge went along with that. The prosecutor is walking out, and one of the constables gets him aside and says, "God, you made a terrible mistake. That guy was with you all the way."

Then came the day that one of the constables' friends gets a DUI. They go down to one of the real tough bars, and they pick the jury from the guys who are still about half drunk, sitting around on the front bench at the bar. The jury is sitting there waiting to go into the jury box, and they're belching, and some of them go to sleep. The constables are looking at the prosecutor sitting there across from the defendant and saying, "We got you wired on this one, sucker."

But it was an on open-and-shut case, so the jury goes in to deliberate. In about five minutes, they're back.

"What is your verdict?"

The foreman belches a couple of times and says, "Guilty, Your Honor."

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The constables are just in shock. They get the foreman of the jury afterward, and they say, "Why did you do this?"

And the foreman of the jury says, "It takes one to know one."

***

I had a drug case where I was really disgusted. The defense attorney involved has gone on to become a "civil rights" lawyer—at least, that's what he thinks. In mv case, he was saying, "The police are doing horrible things to black folks! They're arresting everybody, blah, blab, blah. How could you persecute this poor man?" This child—I even remember the defendant's name, his name was Alphonso—was arrested on an A2-class drug charge. The minimum sentence was six to life. I spent a lot of time and effort on this case, because it seemed to me this child deserved some consideration. He had no record; he had a wonderful family. It looked like what happened was he was standing out in front of his building, where people that he knows are hanging out. They are selling drugs, but he wants to feel that "he's down with" whatever it is, or somebody bets him that he can't deliver. So the undercovers come by. They make a deal with whoever the other people are. The undercovers give the people the money, and Alphonso just takes a package and gives it to them.

His attorney takes the attitude that this is the crime of the century. The police officers are lying. I said, "I don't think so. I think these police officers are telling the truth, and I'm going to make you the best offer I can make. You ought to try and persuade your client to take this offer."

"No, no, no! He's innocent. He didn't do anything like that. You are persecuting him."

Some undercovers you had to watch, but this undercover, I didn't have any problem with. I even went to my supervisor and said, "This really is a nice kid. I don't want to send him to jail for six to life. Would you please allow me make him an offer of an A3?" So I went to battle for him, because he made a mistake, but why don't we see if he can straighten up? I got my supervisor to agree that I could make this offer. I went back and said, "This is the offer—take it! Please! I know that your kid is nice. I'm convinced that he did this. But there is no reason to go to trial on this and risk that much time in jail."

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But the defense attorney was adamant, "No, no, no." He just assumed the police officers were going to be white, and since it was up in a predominantly black area of the city, he was going to get a jury that somehow was going to acquit this child with no record. I'm going, "Don't do this. Do not do this." So he refused my offer. And they went to trial. And they lost. And I still remember that mother crying. She had to be carried out of the courtroom. That lawyer looked at me, and there was nothing he could say. "I told you not to do this."

Everything is not a political trial—it just isn't. There was nothing out of the ordinary in this case. The officers were plain old black officers doing their job. They told me the truth. They got on the witness stand, and the jury believed them. What can I tell you, you know? I'm still mad at him. I couldn't believe he would do that rather than listen to me. People just think they can beat you at trial, just because you're a woman or because you're black or because you're whatever you are. It's not true all the time—or any of the time, actually. That was the low point for me.

It’s a terrible thing to send an innocent man to prison. How much better it is to turn a guilty man loose than to unjustly convict an innocent man? I guess it is. I've had some guys that I've made them deals where I thought they probably should have walked out free men instead of doing short time, but the person representing them just would not cooperate. Sometimes a public defender or a defense lawyer will just try and bust your ass all the time. Frankly, you end up busting theirs back. You get irritated, but you try not to take it out on the people they represent. The defendant didn't know this asshole lawyer he hired from Adam's housecat. Maybe the state just appointed this son of a bitch to represent him.

Should you penalize him for that? No.

Do we? Probably, sometimes. You try not to, but we're human. The other day I made a guy plead straight-up to stealing his own car out of the repairman's garage. It was just a piece of paper until we finally got into court, and I really looked at him. He was just a weak-looking, nerdy kind of guy. Knowing what I knew about his background, he probably didn't have much chance for anything but to be on the fringe of life. He already had a felony conviction, and he damn sure has another one now I felt kind of bad for him. If his lawyer had spent a little more time trying to humanize that guy as opposed to busting my ass at every turn about whether or not I could prove my case, he never would have got this.

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I felt like maybe I'd been too hard on him. He got probation on this one, and maybe he needed the structure of probation. I didn't feel terrible about the decisions I was making. But as it was happening, I was thinking about the lawyer, and I knew of two or three other lawyers, and if one of them had come to talk to me about that case, there would have been a different result.

We get to court, and the lawyer hasn't put any effort into resolving the case. When it did get resolved, I thought to myself, It's a shame. What happened wasn't injustice. But just looking at the guy—he was a bit of a wreck. He at least needed more attention than he got. I didn't feel bad enough to step up to the plate for him—although I have done that on occasion, when I see somebody dropping the ball. You try to jerk it back out of the jaws of whatever. Sometimes they won't do it. You'd be amazed. Sometimes people are their own worst enemies.

There are many insanity-defense cases that I’ve looked at that I agreed right off the bat—"This is a legitimate case for insanity." First of all, there is no reason for the homicide. That would always be the first thing you'd notice. This was a senseless act—there was no reason, no motive.

I had fun with one of them for a while, negotiating a plea with a defense attorney. It was a man who had shot his upstairs neighbors. He kept a blanket over his TV set because "they" were sending rays through the set that were affecting him. He had a collection of 16mm movies that he was taking of all the cars that were following him all the time. He had all this background as a pretty crazy guy, and his attorney had all this psychiatric testimony. It was clear that this man had a serious problem, that there really was no motive for these killings, and that he needed to be hospitalized.

Along with all his other paranoid behavior, he also had been saving tap water. He dated all of it on the day he had bottled it, and he had the little jars of water tested, because he was convinced that people were trying to poison him.

In working out the negotiations with the defense attorney, who is a pretty good friend of mine, I told him, "Look, I'm leaning toward your point of view in this. I think we should offer you the plea and let him be committed, let him go to the state hospital and be taken care of. But I have a little bit of hesitation. Are you convinced that all of this is phony? All of this is in his head?"

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"Absolutely," he says. “I’m totally convinced. There's no question about it. He's paranoid. There's nothing wrong with all that tap water.”

"Fine," I said. "Pick out any bottle you want. You drink it, and you've got the deal."

"Are you nuts? I'm not drinking this stuff."

"Oh, it might be poisoned then, huh?"

But we did work out a deal.

A defense attorney was trying to develop an insanity defense for this guy who beat the shit out of a police officer who was giving him a ticket. So the attorney got this guy from the big city who charged $600 an hour for the first hour, including travel time, and then $450 for every hour after the first one. It was an enormous amount of money. The guy basically showed up with two pictures. They looked like composite CAT scans of the brain. One of them was bright colors, and the other one had cool colors. One was a stressed brain and the other one was a "happy" brain. I've got a psychologist, a local guy, on the stand, and he's referring to this "expert's" happy brain/sad brain props.

I'm giving my argument to the jury, and I said, "Six hundred dollars. Lord." Then I'd go on talking about the case, then I'd stop and say, "Six hundred dollars an hour! Ever since he told me that, I've been trying to think of some other profession that pays six hundred dollars an hour, and I can't think of anything that doesn't require somebody to take off their clothes." I can't call him a whore, but I can make that kind of comment. The judge starts laughing. The jury looks at me stone-faced.

I won the case, but I thought my line that allowed me to call a doctor a whore in court was brilliant. But nobody laughed. If they did get it, they didn't let me know.

We had a couple of whorehouses in town which I finally closed, simply because whorehouses were a magnet for crime. I had the personal feeling that there is no worse degradation of women than to turn them into whores. In any event, one of the freelance girls was this attractive and very bright-looking gal. She got arrested and went through reformation with a little backsliding. But a young man who came from a very responsible family fell in love with this girl.

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Her pimp resented this. So the two men had a classic Hollywood Wild West shootout down on the avenue that was frequented by prostitutes. The pimp had a revolver. The young man had a rifle—which doesn't really speak too well for the intelligence of the pimp, who was killed in the shooting.

This case comes on my desk. Of course, I think the captain of detectives kind of enjoyed the anguish that this prosecutor had in looking at this case. This state has always had the theory that there are some people who, by the way they live, deserve to be killed. We were way ahead of people who now talk about the battered-wife syndrome. It was always considered appropriate for some women to shoot their spouses if need be, when they'd had enough of it.

It's kind of hard to work up much jury sympathy for the death of a pimp, right? Particularly when you have this young man who was a good fellow. At that time, we still had a dueling statute, so I said, "By God, I'm going to charge this kid with dueling." Nobody had filed a dueling charge, maybe ever. That statute worked out very well. He got a minimal sentence and spent a short time in incarceration. As we all expected, he rehabilitated and came back.

Unfortunately, after the press had a certain amount of fun, as you might expect, with the dueling charge, the legislature wiped out the dueling statute. Part of the reason I resented that was that we could have used that dueling statute quite a bit. You didn't have to prove the intent to cause bodily harm or anything about the defendant's state of mind as one must when involved in a homicide charge. It was all very simple. Getting rid of that dueling statute was a mistake.

Tried a case of drunk-driving manslaughter: The accident occurred on the defendant's side of the road. He hit a motorcycle in the lane that he was supposed to be in and killed the motorcycle driver. The skid marks were such that if you analyzed them and measured the vehicle that the defendant was driving, the ass of his vehicle was in the oncoming lane, which meant that he just came back to his lane from the wrong lane. The motorcyclist, in an attempt to get away from him, had cut across into the other lane. Then the car had swerved back where he was supposed to be, and there was nothing the motorcyclist could do.

I had a photograph of the car the defendant was driving. The perspective of the car was of the car turning left. I needed the exact opposite. I needed somebody to take the negative, flip it, and make me another picture—but it's hard, there's never enough time, and I didn't get around to it till trial. I had a picture of the highway and

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the skid marks. What I wanted to do was to hold the right-turning vehicle up to the skid marks and show that he had to have been coming back from the wrong side of the road. I'm in my office before going to court, and I held the picture up to the window to see if you could see through it. That way I could get the reverse. It looked like it would work okay for demonstration purposes.

Some cases just take on a life of their own. The community gets incensed at somebody. This case was one of those. The courtroom was packed every day. The defense lawyer was a very cagey, clever guy. Not as clever as he thinks, but his weakness is that he thinks he's so much smarter than everyone else. I get to my closing arguments that day, and I told the jury, "I didn't get this snapshot of the car redone like I should have. I waited around until it was too late. In order for you to see what I want you to see, you're going to have to look through the back of the photograph while I hold it up to the light." I held that picture up, and the light shone through the picture of the car sitting in the skid marks. It was so weird—the car was almost ghostly. There was no noise in the courtroom. It was like I had a piece of Twilight Zone in my hand. "If you look closely, you'll see the last thing the victim ever saw in this world." They were so focused, rapt. It was an accident. I didn't intend it to be that way, but it turned out to be one of the most powerful exhibits I've ever held up to a jury. I can't tell you how spooky it was. The hair on my arms stood up. He got sixteen years for that conviction.

We tried a guy here ten years or so ago for killing his wife. Circumstantial case. Jury hung. He and his wife were separated, but we knew they were together that night to look for a place for their five-year-old to start kindergarten. They went to a couple of places to check out the schools, then they went back to the house where she lived, and the kid went to bed. The child came down the next morning, whenever kids get up, and his mother was laying there in the kitchen. She'd been beaten to death. This guy said he was there, went home, and didn't know anything. We tried him anyway, the jury hung, and the judge granted a motion for acquittal. He was a judge that, in my opinion, just liked to clear his docket.

About six or eight years go by. This guy is a free man. I get a call from a friend who is a prosecuting attorney in Missoula, Montana. "Hey, you know a guy named John Krassler?"

"John Krassler. Let me think about that. John Krassler? We have so many cases here."

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John Krassler had walked into Sandy's office out west one day, and he asked if he could talk to the prosecutor. His son was now thirteen or fourteen years old. He intimated to Sandy that he had murdered his wife back here. Sandy didn't know if this guy was crazy or what. So he calls me, and I say, "Oh yeah. I know all about that guy." I told Sandy what had happened. I said, "Sandy, can you get him back?"

"Yeah.''

"Get him back. Read him his Miranda rights, even though he's been acquitted. Try and tape it, and get a statement from him because he took the stand in his own defense and denied the murder, so if we can get him at least with perjury it would be something."

Sandy did it. He had the deputy sheriff there. We got the statement, brought him back on the perjury charge. The unique thing that was done—we charged him with felonious assault with his son as the victim, the theory being that when he beat his wife to death, he knew that the son would come down and find her, therefore the psychological impact he had had was in essence an assault. We convicted him on that, and he's got a sentence where he'll have to do ten to thirteen years, which isn't a whole lot less than he would have done for the homicide.

I had a friend of mine I play fast-pitch softball with—a little younger than I was, maybe by ten years. I didn't know much about him except that he was a very interesting guy. Probably had a high school education. I didn't believe he had any money. Came from no money. I knew he went to a fast-pitch tournament for guys forty and over in Las Vegas three or four years ago. A couple older guys—sixty-five or seventy years old, friends of his—came along as coaches. I found out later that he paid for their tickets and he paid for their rooms, because they didn't have the money to make the trip on their own. Although I knew he had a heart of gold, what I didn't know until after he died was that he was a self-made millionaire. I knew he'd work at the Dairy Queen and I knew he had these odd properties that he'd fix up and paint, do all the work himself. As time went on, he became very successful. He and his sister ended up with a health care center for elderly people. Home care thing. He was just in everything.

He's fixing up one of his houses that he rented out, and some guys were next door. He was their landlord, too. They decided that the landlord's probably got money. One guy went over and killed him. Didn't get a cent. He had a wallet in his truck. There was twenty bucks in his wallet.

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But all these guys in the house were ne'er-do-wells. Jesus Christ, everybody's on drugs; everybody else is drunk. We had a real mess. We were convinced that we knew who did it. We had one guy who was going to be our key witness who told us that the guy we suspected committed the murder. But then the witness failed the trace metal detector test. That meant my witness had recently fired a weapon. He might just as easily have been the murderer as the suspect. Of course, all these people had guns. They all have guns—it's just a fact of life. The guy who was a suspect, we didn't get hold of him until three or four days later. So, of course, his test doesn't mean anything.

This guy's wife is decimated. I could look at it objectively and say, "Hey, I believe he did it, but I don't think we're going to win." But I couldn't tell her that. If a defense attorney takes a certain tactic, we could get manslaughter, but we can't count on it. None of our witnesses are any good. We got some critical evidence that helps us, but I just got worried to death that the jury is going to look at these witnesses and say they're just criminals, that the evidence was probably planted. Proof beyond a reasonable doubt means they got to believe these people beyond a reasonable doubt to put this guy in the electric chair. And there's a real good attorney on the other side.

When this thing first happened and I got the file, one of the policemen who was a friend of mine on the homicide squad said, "Mike, how we got this guy is we got a tip about where he was through the FBI. We worked with the FBI, because they knew he was going to be driving from Florida to Maine. That night we grabbed him, one of the FBI guys said something about a tape. Somebody has a tape of the defendant admitting the murder."

So I call the FBI guys. My friend with them says, "I don't know if there is any truth to it. You've got to keep this quiet for a while, but we knew about your suspect through a paid informant The paid informant told me that there was some sort of a tape, but, Mike, I never pay any attention to these guys."

"I need to talk to this guy," I said. "Give me the guy's name."

When my FBI contact told me the informant's name, I remembered the guy. I'd tried him for murder twenty-something years ago. The only reason I remember him is that he was a juvenile at the time, and we held him such a long time as a juvenile that he was tried in adult court, and his defense was arguing speedy trial. So anyway, they gave me his number

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These guys are not bankers. They don't keep regular hours. They have beeper numbers. It takes me a while, but I finally get hold of the guy. He's going to go back with me, doesn't want to talk then. He gets back with me eventually. He said, "I heard there was a tape, but there wasn't. I thought it had been destroyed, and it was. The person who had it destroyed it, and there is no tape."

I'm thinking, If there really is a tape, it's never been destroyed, because somebody in that group of people knows its value. This is something that a prosecutor or a policeman would want; therefore, hang on to it. If it ever existed, I found it hard to believe that it had been destroyed—at least intentionally.

Okay. Two or three months go by, and this case isn't getting any better. So I call this guy again. We still had never met. Finally, I convince him to come in. He comes in one night at the office, and he has a buddy with him. Honest to God, both of these guys are as big as houses, with arms like barrels from twenty years of lifting weights in prison. I am sitting there a little wary, but I'm getting along with them okay. I don't know who this other guy is. So the first guy is sitting there talking to me, and he says, "Okay, there is a tape."

After the shooting, this kid who shot my softball buddy took off and stayed with these people who are twenty years older than him and who are into much bigger things than he has ever imagined. In the course of it, there was a woman there who put a tape recorder in her purse and sat down and talked to the kid. The whole tape didn't last but three minutes, maybe four, something like that. Of course, it's crackling, and both of them get so excited, they talk in a high voice with accents, so most of it is hard to decipher. Plus, it's muffled inside the purse. But basically she says, "What happened?" And he talks about killing this guy. I haven't heard it, but these two guys are willing to give it to me. But I've got to do something for the guy I'm talking to, something for the friend he brought, and something for a guy in prison.

"Look," I said. "I can do something for you. I'll talk to the judge, I can do that. For this guy here, I'm going to have to talk to the police department. I can't do anything for the guy in prison—I don't have that authority—but I will write a letter to the governor." So we had this long drawn out negotiation. It was reasonable. In fact, the one guy just wanted off probation. And the judge readily agreed to that. He had a three-year sentence in prison, he did two years, and they shocked him out. He only had a year to go, and he’d done three or four months of that. He just didn't want to keep coming down every month to the courthouse to check in with the

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probation officer. It was simple. The other guy was involved with a drug deal, and the cops had already told him, "You turn three cases for us, and we won't charge you." He said, "Will this count as a case? This has nothing to do with the drugs and all that, but I want this to count in my three cases." So I called the police, and they said okay. The guv in prison, I couldn't help. But we tried.

Finally, they brought me the tape. I'm telling you, it was great. I couldn't believe it. This case went from a total loser, a not guilty, to "If we can get this tape in, it should be winner."

It took another four months. The defendant fired his attorneys and hired new ones, but he ended up pleading to life with no parole hearing until he'd completed thirty-three years of his sentence. He'll probably do forty-five years, if he lives that long, and he probably won't.

I prosecuted a murder case one time in which this man had been shot with a pistol. We thought we knew who did it, but we weren't sure. We thought we knew who helped out with the murder. So we got the accomplice to come down to the state attorney's office, and ran him on a polygraph. I'm sitting there watching the polygraph machine, and we get around to the golden question: "Do you know where the gun is?" This guy literally knocked the needle off the machine. It was just incredible. It went ker-wham! Everybody got a little ink on them. After the polygraph was over, I talked to the examiner and the examiner said, "You know, I really don't think this guy had anything to do with it. But I do believe that he knows where that gun is."

I went up to my office and had my secretary type up an indictment for first-degree murder with this guy's name on it and a grant of immunity with this guy's name on it. So I brought him up to the office, and I said, "You know, I'm in a tough situation because you flunked the polygraph exam, and we're going to have to make some decision about what to do with you. Rather than me make this decision, I'm going to let you make it for me. I've got two pieces of paper here. One is an indictment for firstdegree murder. The other one is a grant of immunity. I want the gun. You pick out which of these two pieces of paper you want." We had the gun in about thirty minutes. Sometimes you got to do what you got to do. I like to give people an option. They can choose whichever one they like.

I had a guy who killed this young boy with a sawed-off .22 rifle at a family gathering. He had a fight and a screaming match between him and his wife, so he

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runs and gets this gun. The kid is sleeping on the couch. This guy is pointing the gun at the head of this child and screaming with his wife and finally pulls the trigger. Gets up on the witness stand and says that it was all an accident. "It just went off by accident."

"Show me how that's possible," I said, and I handed him the rifle in court. This particular rifle was a bolt-action single-shot .22. The first thing you have to do is open the bolt and put a bullet in, close the bolt, and ram it down. Then you had to pull a cocking lever. It was a really old weapon, and you had to really pull the trigger. He claimed that he never pulled the cocking lever. "Never did." I handed it to him and said, "Operate that bolt and pull that trigger as many times as you want for this jury, and let's hear the click." He did it four or five times, and it didn't fire. "How many more times do you want to try it?" He had nothing to say. I took the weapon away from him and put it down.

You get these people with a weird story of how the gun went off. I had one of them claim that he took the gun out of his pocket, an automatic. He was holding it over the top of the receiver, and he just hit the fellow over the head with the butt. It happened to go off and kill the guy. "Let's see. Came down and hit him. It fired. Never had his hand on the trigger at all." First of all, it had a safety, so it couldn't fire without the trigger being pulled. Number two, if it had gone off that way his hand would have been burned with the gases; the slide would have bitten him. Never got a mark on his hand.

I love the ones who say, "I never pulled the trigger." What most people don't realize is that a revolver has a hammer-block safety in it. If you're not pulling the trigger all the way back, the hammer will drop, but it won't fire. The firing pin can't hit that shell unless you're holding the trigger back. If you hit it with a brick, it won't fire. I would have people demonstrate that. You'd take a pencil and drop it down the barrel and cock it and hit it. The hammer falls, but the pencil never moves. If you really pull the trigger, it will knock the pencil right out the end of the barrel. But a lot of people don't think there is a safety in a revolver. So they have this story about how this went off accidentally. It dropped and fell and went off.

I always had fun with the weapons. I would hand them to the defendant. Let him have it in his hands. The deputies would get upset when I'd give them a butcher knife.

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We had prison murders at the state prison here in town. Those defendants were always very cooperative. I'd have them come down: "Show me, here on the floor of the courtroom, how you were wrestling around with this guy and you're claiming self-defense in his death." Pretty soon they're jumping up and down and getting into the whole scene and how bad the fight went back and forth. Before you know it, they've demonstrated exactly how they stabbed the other guy, who was unarmed.

***

I just have a hard time with folks who get attached to a legal pad in a courtroom and who read almost everything, read all of their questions. They can't just stand there on their own two feet, walk around, remember, and listen to the answers to the questions. Too many of them haven't even heard the answer to the first question, and they're asking their next one. They just don't listen. They get too involved with their own performance instead of paying attention to the witness. When you get down to final arguments, you can try to be the star, but not during crossexamination. Some of the greatest questions in the world are: "What happened next?" "Then what did you do?" The question isn't anything. You want that answer to come out in court. But it's hard to instill the patience and the ability to listen in some of these young prosecutors if they haven't really seen a lot of cases and spent the time watching other people try cases. Many times, you can sense that a witness is going to say something more. Just let them. See what happens.

I've had defendants on the stand on more than one occasion where the defense attorney is trying to soften the criminal record of the defendant. "Now, you've had convictions in the past, haven't you?" As soon as they start to talk about it, I would reach in my file and pull out some documents and look at them while the guy answered. He'd say, "Well, I've had a few." And I'd give him a look. He'd mention part of his record, and I'd turn pages. "And that's all." I'd stop and look up in disbelief. "Oh, and then there was that other on ..." They'd start going through their entire record. I've had fun with those little tricks.

Many times, you find a defendant on the stand makes a really bad witness for himself. They then have the opportunity to come out with more incredible statements that will really hurt themselves.

I had one who was being examined by his own defense attorney. They were trying to sell their version of this entire story: This parolee who had just gotten out

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of prison snuck into this bar on a cold winter night, just to get in out of the snow and the sleet and the rain, just to be protected. There was nowhere else he could go. The defense attorney leads his client through this whole thing, and he finally says, "And why did you break in to that bar?"

"To steal the money."

Of course, I didn't cross-examine him at all. I didn't want to destroy his credibility. I didn't want to show that he had a terrible, horrible record, and you couldn't believe a word he said. I wanted the jury to buy that story that he broke into the bar to steal that money.

A man murdered his wife of twenty-five years—beat her to death. Then he went off to see the girlfriend he'd found at his job with the Department of Transportation. The two of them went to her son's Little League baseball game. The guy drove home, stuffed his dead wife in the back of their minivan, and drove up to the hospital. Maybe he had some idea he could deliver her to the emergency room and everything would look accidental, but he chickened out on that one and never quite made it to the emergency room. He put the car in the parking lot and left. The body wasn't found until days later, when passersby began to notice the odor.

He hires a big defense attorney. Months earlier, this attorney had a case where he defended a guy who murdered his wife and got a not guilty. I feel certain the publicity surrounding that case got him hired for this one. The guy pays this lawyer a ton of money. The defense star comes down with his partner and co-counsel. They say to me, "Hey, man, what's the deal going to be?" “He can plead to second-degree murder,” I said, "and according to the sentencing guidelines, he'll probably get twenty-two years."

"You're out of your mind," they said. "How about twelve to fifteen years?"

"No. The grand jury indicted him for first degree, the family is agreeable to second, but I'm not going lower than twenty-two years."

They say no, and we go to trial. The case is getting lots of media attention. My guess is that the defendant's attorney was calling them.

After I proved my case, the defendant took the stand and admitted doing it, but he said it was self-defense. The problem is there were four huge, distinct blows to the woman's head. So I said, "Mr. Hiller, after the first blow to her head, when

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she was on her knees, did you still feel like your life was in danger? After the second blow, was she still threatening you with bodily harm?" I crucified him in cross-examination. It was ugly. I'd love to read it again myself. "Mr. Hiller, when you left your girlfriend's house, did you kiss her goodnight?" He didn't answer me, or he would dodge the question. So I had to keep saying over and over again, "Answer my question, Mr. Hiller. Did you kiss your girlfriend goodnight?"

Finally, he croaks out, "Yes." It was the perfect picture. He kisses her goodnight, then hurries home to stuff the body of his dead wife into the back of the minivan to get rid of the evidence.

The jury came back in eighteen minutes. Guilty, first-degree murder. The defense co-counsel was across the street at Little Michael's getting a sandwich. He missed the verdict entirely.

12.4. Example: Free Advice from a PD (as posted on Craigslist.com)

First, let me say I love my job and it is a privilege to work for my clients. I wish I could do more for them. That being said, there are a few things that need to be discussed.

You have the right to remain silent. So SHUT THE FUCK UP. Those cops are completely serious when they say your statements can and will be used against you. There’s just no need to babble on like it’s a drink and dial session. They are just pretending to like you and be interested in you. When you come to court, consider your dress. If you’re charged with a DUI, don’t wear a Budweiser shirt. If you have some miscellaneous drug charge, think twice about clothing with a marijuana leaf on it or a t-shirt with the “UniBonger” on it. Long sleeves are very nice for covering tattoos and track marks. Try not to be visibly drunk when you show up.

Consider bathing and brushing your teeth. This is just as a courtesy to me who has to stand by you in court. Smoking 5 generic cigarettes to cover up your bad breath is not the same as brushing. Try not to cough and spit on me while you speak and further transmit your strep, flu, and hepatitis A through Z.

I’m a lawyer, not your fairy godmother. I probably won’t find a loophole or technicality for you, so don’t be pissed off. I didn’t beat up your girlfriend, steal that car, rob that liquor store, sell that crystal meth, or rape that 13-year-old. By the time we meet, much of your fate has been sealed, so don’t be too surprised by your limited options and that I’m the one telling you about them.

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Don’t think you’ll improve my interest in your case by yelling at me, telling me I’m not doing anything for you, calling me a public pretender or complaining to my supervisor. This does not inspire me—it makes me hate you and want to work with you even less.

It does not help if you leave me nine messages in 17 minutes. Especially if you leave them all on Saturday night and early Sunday morning. This just makes me want to stab you in the eye when we finally meet.

For the guys: Don’t think I’m amused when you flirt or offer to “do me.” You can’t successfully rob a convenience store, forge a signature, pawn stolen merchandise, get through a day without drinking, control your temper, or talk your way out of a routine traffic stop. I figure your performance in other areas is just as spectacular, and the thought of your shriveled unwashed body near me makes me want to kill you and then myself.

For the girls: I know your life is rougher than mine and you have no resources. I’m not going to insult you by suggesting you leave your abusive pimp/boyfriend, that you stop taking meth, or that your stop stealing shit. I do wish you’d stop beating the crap out of your kids and leaving your needles out for them to play with because you aren’t allowing them to have a life that is any better than yours.

For the morons: Your second grade teacher was right—“neatness counts.” Just clean up! When you rob the store, don’t leave your wallet. When you drive into the front of the bank, don’t leave the front license plate. When you rape/assault/rob a woman on the street, don’t leave behind your cell phone. After you abuse your girlfriend, don’t leave a note saying that you’re sorry.

If you are being chased by the cops and you have dope in your pocket, dump it. These cops are not geniuses. They are out of shape and want to go to Krispy Kreme and most of all go home. They will not scour the woods or the streets for your 2 grams of meth. But they will check your pockets, idiot. 2 grams is not worth six months of jail.

Don’t be offended and say you were harassed because the security was following you all over the store. Girl, you were wearing an electronic ankle bracelet with your mini skirt. And you were stealing. That’s not harassment, that’s good store security.

And those kids you churn out: how is it possible? You’re out there breeding like feral cats. What exactly is the attraction of having sex with other meth addicts? You are lacking in the most basic aspects of hygiene, deathly pale, greasy, grey-

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toothed, twitchy and covered with open sores. How can you be having sex? You make my baby-whoring crackhead clients look positively radiant by comparison.

“I didn't put it all the way in.” Not a defense.

“All the money is gone now.” Not a defense.

“The bitch deserved it.” Not a defense.

“But that dope was so stepped on, I barely got high.” Not a defense.

“She didn't look thirteen.” Possibly a defense; it depends.

“She didn't look six.” Never a defense, you just need to die.

For those rare clients that say thank-you, leave a voice mail, send a card or flowers, you are very welcome. I keep them all, and they keep me going more than my pitiful COLA increase.

For the idiots who ask me how I sleep at night: I sleep just fine, thank you. There's nothing wrong with any of my clients that could not have been fixed with money or the presence of at least one caring adult in their lives. But that window has closed, and that loss diminishes us all.

12.5. Example: ABA Formal Opinion 06-441, Ethical Obligations of Lawyers Who Represent Indigent Criminal Defendants When Excessive Caseloads Interfere with Competent and Diligent Representation (American Bar Association Standing Committee on Ethics and Professional Responsibility)

All lawyers, including public defenders and other lawyers who, under court appointment or government contract, represent indigent persons charged with criminal offenses, must provide competent and diligent representation. If workload prevents a lawyer from providing competent and diligent representation to existing clients, she must not accept new clients. If the clients are being assigned through a court appointment system, the lawyer should request that the court not make any new appointments. Once the lawyer is representing a client, the lawyer must move to withdraw from representation if she cannot provide competent and diligent representation. If the court denies the lawyer’s motion to withdraw, and any available means of appealing such ruling is unsuccessful, the lawyer must continue

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with the representation while taking whatever steps are feasible to ensure that she will be able to competently and diligently represent the defendant.

Lawyer supervisors, including heads of public defenders’ offices and those within such offices having intermediate managerial responsibilities, must make reasonable efforts to ensure that the other lawyers in the office conform to the Rules of Professional Conduct. To that end, lawyer supervisors must, working closely with the lawyers they supervise, monitor the workload of the supervised lawyers to ensure that the workloads do not exceed a level that may be competently handled by the individual lawyers.

In this opinion, we consider the ethical responsibilities of lawyers, whether employed in the capacity of public defenders or otherwise, who represent indigent persons charged with criminal offenses, when the lawyers’ workloads prevent them from providing competent and diligent representation to all their clients. Excessive workloads present issues for both those who represent indigent defendants and the lawyers who supervise them.

Ethical responsibilities of a public defender in regard to individual workload

Persons charged with crimes have a constitutional right to the effective assistance of counsel. Generally, if a person charged with a crime is unable to afford a lawyer, he is constitutionally entitled to have a lawyer appointed to represent him. The states have attempted to satisfy this constitutional mandate through various methods, such as establishment of public defender, court appointment, and contract

This opinion is based on the Model Rules of Professional Conduct as amended by the ABA House of Delegates through August 2003. The laws, court rules, regulations, rules of professional conduct and opinions promulgated in the individual jurisdictions are controlling. For additional discussion of the problems presented by excessive caseloads for public defenders, see “Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice,” prepared by the American Bar Association’s Standing Committee on Legal Aid and Indigent Defendants 29 (ABA 2004), available at http://www.abanet.org/legalservices/sclaid/defender/brokenpromise/fullreport.pdf (last visited June 21, 2006). The term “public defender” as used here means both a lawyer employed in a public defender’s office and any other lawyer who represents, pursuant to court appointment or government contract, indigent persons charged with criminal offenses. U.S. Const. amends. VI & XIV. The United States Supreme Court has interpreted the Sixth Amendment to require the appointment of counsel in any state and federal criminal prosecution that, regardless of whether for a misdemeanor or felony, leads or may lead to imprisonment for any period of time. See generally, Alabama v. Shelton, 535 U.S. 654, 662 (2002); Strickland v. Washington, 466 U.S. 668, 684-86 (1984); Scott v. Illinois, 440 U.S. 367, 373-74 (1979); Argersinger v. Hamlin, 407 U.S. 25, 30-31 (1972); Gideon v. Wainwright, 372 U.S. 335, 342-45 (1963); Johnson v. Zerbst, 304 U.S. 458. 462-63 (1938).

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systems. Because these systems have been created to provide representation for a virtually unlimited number of indigent criminal defendants, the lawyers employed to provide representation generally are limited in their ability to control the number of clients they are assigned. Measures have been adopted in some jurisdictions in attempts to control workloads, including the establishment of procedures for assigning cases to lawyers outside public defenders’ offices when the cases could not properly be directed to a public defender, either because of a conflict of interest or for other reasons.

Model Rules of Professional Conduct 1.1, 1.2(a), 1.3, and 1.4 require lawyers to provide competent representation, abide by certain client decisions, exercise diligence, and communicate with the client concerning the subject of representation.

Most states deliver indigent defense services using a public defender’s office (eighteen states) or a combination of public defender, assigned counsel, and contract defender (another twenty-nine states), according to the Spangenberg Group, which developed a report on behalf of the ABA Standing Committee on Legal Aid and Indigent Defendants. See The Spangenberg Group, “Statewide Indigent Defense Systesm: 2005,” available at http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/statewideinddefsystems2005.pdf (last visited June 21, 2006). See generally, National Symposium on Indigent Defense 2000, Redefining Leadership for Equal Justice, A Conference Report (U.S. Dep’t of Justice, Bureau of Justice Assistance, Wash. D.C.) 3 (June 29-30, 2000), available at http://www.ojp.usdoj.gov/indigentdefense/symposium.pdf (last visited June 21, 2006) (common problem in indigent defense delivery systems is that “lawyers often have unmanageable caseloads (700 or more in a year)”). Rule 1.1(a) provides that “[a] lawyer shall provide competent representation to aclient. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”Rule 1.2(a) states:

[A] lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

Rule 1.3 states that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.”Rule 1.4(a) and (b) states:

(a) A lawyer shall:(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;(3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules

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These obligations include, but are not limited to, the responsibilities to keep abreast of changes in the law; adequately investigate, analyze, and prepare cases; act promptly on behalf of clients; communicate effectively on behalf of and with clients; control workload so each matter can be handled competently; and, if a lawyer is not experienced with or knowledgeable about a specific area of the law, either associate with counsel who is knowledgeable in the area or educate herself about the area. The Rules provide no exception for lawyers who represent indigent persons charged with crimes.

Comment 2 to Rule 1.3 states that a lawyer’s workload “must be controlled so that each matter may be handled competently.” The Rules do not prescribe a formula to be used in determining whether a particular workload is excessive. National standards as to numerical caseload limits have been cited by the American Bar Association. Although such standards may be considered, they are not the sole

of Professional Conduct or other law.(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

See ABA Formal Opinion Op. 347 (Dec. 1, 1981) (Ethical Obligations of Lawyers to Clients of Legal Services Offices When Those Offices Lose Funding), in FORMAL AND INFORMAL ETHICS OPINIONS, FORMAL OPINIONS 316-348, INFORMAL OPINIONS 1285-1495 at 139 (ABA 1985) (duties owed to existing clients include duty of adequate preparation and a duty of competent representation); ABA Informal Op. 1359 (June 4, 1976) (Use of Waiting Lists or Priorities by Legal Service Officer), id. at 237 (same); ABA Informal Op. 1428 (Sept. 12, 1979) (Lawyer-Client Relationship Between the Individual and Legal Services Office: Duty of Office Toward Client When Attorney Representing Him (Her) Leaves the Office and Withdraws from the Case), id. at 326 (all lawyers, including legal services lawyers, are subject to mandatory duties owed by lawyers to existing clients, including duty of adequate preparation and competent representation). See also South Carolina Bar Ethics Adv. Op. 04-12 (Nov. 12, 2004) (all lawyers, including public defenders, have ethical obligation not to undertake caseload that leads to violation of professional conduct rules).

The applicability of Rules 1.1, 1.3, and 1.4 to public defenders and/or prosecutors has been recognized by ethics advisory committees in at least one other state. See Va. Legal Eth. Op. 1798 (Aug. 3, 2004) (duties of competence and diligence contained within rules of professional conduct apply equally to all lawyers, including prosecutors). Principle 5 of The Ten Principles of a Public Defense Delivery System specifically addresses the workload of criminal defense lawyers:

Defense counsel’s workload is controlled to permit the rendering of quality representation. Counsel’s workload, including appointed and other work, should never be so large as to interfere with the rendering of quality representation or lead to the breach of ethical obligations, and counsel is obligated to decline appointments above such levels. National caseload standards should in no event be exceeded, but the concept of workload (i.e., caseload adjusted by factors such as case complexity, support services, and an attorney’s nonrepresentational duties) is a more accurate measurement.

Report to the ABA House of Delegates No. 107 (adopted Feb. 5, 2002), available at http://www.abanet.org/legalservices/downloads/sclaid/10principles.pdf (last visited June 21, 2006) (emphasis in original). Id.

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factor in determining if a workload is excessive. Such a determination depends not only on the number of cases, but also on such factors as case complexity, the availability of support services, the lawyer’s experience and ability, and the lawyer’s nonrepresentational duties. If a lawyer believes that her workload is such that she is unable to meet the basic ethical obligations required of her in the representation of a client, she must not continue the representation of that client or, if representation has not yet begun, she must decline the representation.

A lawyer’s primary ethical duty is owed to existing clients. Therefore, a lawyer must decline to accept new cases, rather than withdraw from existing cases, if the acceptance of a new case will result in her workload becoming excessive. When an existing workload does become excessive, the lawyer must reduce it to the extent that what remains to be done can be handled in full compliance with the Rules.

When a lawyer receives appointments directly from the court rather than as a member of a public defender’s office or law firm that receives the appointment, she should take appropriate action if she believes that her workload will become, or already is, excessive. Such action may include the following:

requesting that the court refrain from assigning the lawyer any new cases until such time as the lawyer’s existing caseload has been reduced to a level that she is able to accept new cases and provide competent legal representation; and

if the excessive workload cannot be resolved simply through the court’s not assigning new cases, the lawyer should file a motion with the trial court requesting permission to withdraw from a sufficient number of cases to allow the provision of competent and diligent representation to the remaining clients.

Id. See also Attorney Grievance Comm’n of Maryland v. Ficker, 706 A.2d 1045, 1051-52 (1998) (supervising lawyer violated Rule 5.1 by assigning too many cases to supervised lawyer, assigning cases day before trial, and assigning cases too complex for supervised lawyer’s level of experience and ability). Rule 1.16(a) states that “a lawyer shall not represent a client or, where representation has begun, shall withdraw from the representation of a client if the representation will result in violation of the Model Rules of Professional Conduct or other law.” See ABA Formal Opinion Op. 96-399 (Jan. 18, 1996) (Ethical Obligations of Lawyers Whose Employers Receive Funds from the Legal Services Corporation to their Existing and Future Clients When Such Funding is Reduced and When Remaining Funding is Subject to Restrictive Conditions), in FORMAL AND INFORMAL ETHICS OPINIONS 1983-1998 at 369 (ABA 2000); ABA Formal Opinion Op. 347, supra note 9. Whenever a lawyer seeks to withdraw from a representation the client should be notified, even if court rules do not require such notification. See Rule 1.4.

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If the lawyer has sought court permission to withdraw from the representation and that permission has been denied, the lawyer must take all feasible steps to assure that the client receives competent representation.

When a lawyer receives appointments as a member of a public defender’s office or law firm, the appropriate action to be taken by the lawyer to reduce an excessive workload might include, with approval of the lawyer’s supervisor:

transferring non-representational responsibilities within the office, including managerial responsibilities, to others;

refusing new cases; and

transferring current case(s) to another lawyer whose workload will allow for the transfer of the case(s).

If the supervisor fails to provide appropriate assistance or relief, the lawyer should continue to advance up the chain of command within the office until either relief is obtained or the lawyer has reached and requested assistance or relief from the head of the public defender’s office.

In presenting these options, the Committee recognizes that whether a public defender’s workload is excessive often is a difficult judgment requiring evaluation of factors such as the complexity of the lawyer’s cases and other factors. When a public defender consults her supervisor and the supervisor makes a conscientious effort to deal with workload issues, the supervisor’s resolution ordinarily will constitute a “reasonable resolution of an arguable question of professional duty” as

It should be noted that a public defender’s attempt to avoid appointment or to withdraw from a case must be based on valid legal grounds. Rule 6.2(a) provides, in pertinent part, that “[a] lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as representing the client is likely to result in violation of the Rules of Professional Conduct or other law.” (Emphasis added). Therefore, a public defender should not claim an excessive workload in an attempt to avoid new cases or to withdraw from current cases unless good cause objectively exists. It is important to note that, for purposes of the Model Rules, a public defender’s office, much like a legal services office, is considered to be the equivalent of a law firm. See Rule 1.0(c). Unless a court specifically names an individual lawyer within a public defender’s office to represent an indigent defendant, the public defender’s office should be considered as a firm assigned to represent the client; responsibility for handling the case falls upon the office as a whole. See ABA Informal Op. 1428, supra note 9 (legal services agency should be considered firm retained by client; responsibility for handling caseload of departing legal services lawyer falls upon office as whole rather than upon lawyer who is departing). Therefore, cases may ethically be reassigned within a public defender’s office. See note 12, supra, and accompanying text.

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discussed in Rule 5.2(b). In those cases where the supervisor’s resolution is not reasonable, however, the public defender must take further action.

Such further action might include:

if relief is not obtained from the head of the public defender’s office, appealing to the governing board, if any, of the public defender’s office; and

if the lawyer is still not able to obtain relief, filing a motion with the trial court requesting permission to withdraw from a sufficient number of cases to allow the provision of competent and diligent representation to the remaining clients.

If the public defender is not allowed to withdraw from representation, she must obey the court’s order while taking all steps reasonably feasible to insure that her client receives competent and diligent representation.

Ethical responsibility of a lawyer who supervises a public defender

Rule 5.1 provides that lawyers who have managerial authority, including those with intermediate managerial responsibilities, over the professional work of a firm or public sector legal agency or department shall make reasonable efforts to ensure that the other lawyers in the agency or department conform to the Rules of

See Comment [2]. See, e.g., Atty. Grievance Comm’n of Maryland v. Kahn, 431 A.2d 1336, 1352 (1981) (“Obviously, the high ethical standards and professional obligations of an attorney may never be breached because an attorney’s employer may direct such a course of action on pain of dismissal. . . .”) See Michigan Bar Committee on Prof. & Jud. Eth. Op. RI-252 (Mar. 1, 1996) (in context of civil legal services agency, if subordinate lawyer receives no relief from excessive workload from lawyer supervisor, she should, under Rule 1.13(b) and (c), take the matter to legal services board for resolution). Rule 5.2 makes clear that subordinate lawyers are not insulated from violating the Rules of Professional Conduct and suffering the consequences merely because they acted in accordance with a supervisory lawyer’s advice or direction unless it was in regard to “an arguable question of professional duty.” A public defender filing a motion to withdraw under these circumstances should provide the court with information necessary to justify the withdrawal, while being mindful of the obligations not to disclose confidential information or information as to strategy or other matters that may prejudice the client. See Rule 1.16 cmt. 3. Notwithstanding the lawyer’s duty in this circumstance to continue in the representation and to make every attempt to render the client competent representation, the lawyer nevertheless may pursue any available means of review of the court’s order. See Iowa Supreme Court Bd. of Prof. Ethics & Conduct v. Hughes, 557 N.W.2d 890, 894 (Iowa 1996) (“ignoring a court order is simply not an appropriate step to test the validity of the order under our Code of Professional Responsibility”); Utah Bar Eth. Adv. Op. 107 (Feb. 15, 1992) (if grounds exist to decline court appointment, lawyer should not disobey order but should seek review by appeal or other available procedure).

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Professional Conduct. Rule 5.1 requires that lawyers having direct supervisory authority take reasonable steps to ensure that lawyers in the office they supervise are acting diligently in regard to all legal matters entrusted to them, communicating appropriately with the clients on whose cases they are working, and providing competent representation to their clients. As an essential first step, the supervisor must monitor the workloads of subordinate lawyers to ensure that the workload of each lawyer is appropriate. This involves consideration of the type and complexity of cases being handled by each lawyer; the experience and ability of each lawyer; the resources available to support her, and any non-representational responsibilities assigned to the subordinate lawyers.

If any subordinate lawyer’s workload is found to be excessive, the supervisor should take whatever additional steps are necessary to ensure that the subordinate lawyer is able to meet her ethical obligations in regard to the representation of her clients. These might include the following:

transferring the lawyer’s non-representational responsibilities, including managerial responsibilities, to others in the office;

transferring case(s) to another lawyer or other lawyers whose workload will allow them to provide competent representation;

if there are no other lawyers within the office who can take over the cases from which the individual lawyer needs to withdraw, supporting the lawyer’s efforts to withdraw from the representation of the client; and finally,

if the court will not allow the lawyer to withdraw from representation, providing the lawyer with whatever additional resources can be made available to assist her in continuing to represent the client(s) in a manner consistent with the Rules of Professional Conduct.

When a supervised lawyer’s workload is excessive and, notwithstanding any other efforts made by her supervisor to address the problem, it is obviously

See note 17, supra. See In re Order on Prosecution of Criminal Appeals by Tenth Judicial Circuit Public Defender, 561 So.2d 1130, 1138-39 (Fla. 1990) (in context of inadequate funding, court stated that if “the backlog of cases in the public defender’s office is so excessive that there is no possible way he can timely handle those cases, it is his responsibility to move the court to withdraw”); see also In re Order on Motions toWithdraw Filed by Tenth Circuit Public Defender, 612 So.2d 597 (Fla. App. 1992) (en banc) (public defender’s office entitled to withdraw due to excessive caseload from representing defendants in one hundred forty-three cases).

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incumbent upon the supervisor to assign no additional cases to the lawyer, and, if the lawyer’s cases come by assignment from the court, to support the lawyer’s efforts to have no new cases assigned to her by the court until such time as she can adequately fulfill her ethical responsibilities to her existing clients.

In dealing with workload issues, supervisors frequently must balance competing demands for scarce resources. As Comment [2] to Rule 5.2 observes, if the question of whether a lawyer’s workload is too great is “reasonably arguable,” the supervisor of the lawyer has the authority to decide the question. In the final analysis, however, each client is entitled to competent and diligent representation. If a supervisor knows that a subordinate’s workload renders the lawyer unable to provide competent and diligent representation and the supervisor fails to take reasonable remedial action, under Rule 5.1(c), the supervisor himself is responsible for the subordinate’s violation of the Rules of Professional Conduct.

Conclusion

Rule 5.1(c) states:(c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if: (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

See also Rules 1.16 (a) and 8.4 (a). See, e.g., Attorney Grievance Comm'n of Maryland v. Ficker, 706 A.2d at 1052, supra note 12); Va. Legal Ethics Op. 1798 supra note 9 (lawyer supervisor who assigns caseload that is so large as to prevent lawyer from ethically representing clients would violate Rule 5.1); American Council of Chief Defenders, Nat’l Legal Aid and Defender Ass’n Eth. Op. 03-01 (April 2003), available at http://www.nlada.org/DMS/Documents/1082573112.32/ACCD%20Ethics%20opinion%20on%20Workloads.pdf (last visited June 21, 2006) (“chief executive of an agency providing public defense services is ethically prohibited from accepting a number of cases which exceeds the capacity of the agency’s attorneys to provide competent, quality representation in every case…. When confronted with a prospective overloading of cases or reductions in funding or staffing which will cause the agency’s attorneys to exceed such capacity, the chief executive of a public defense agency is ethically required to refuse appointment to any and all such excess cases.”); Wisconsin State Bar Prof. Ethics Comm. Op. E-91-3 (1991) (assigning caseload that exceeds recognized maximum caseload standards, and that would not allow subordinate public defender to conform to rules of professional conduct, "could result in a violation of disciplinary standards"); Ariz. Op. No. 90-10 (Sept. 17, 1990) (“when a Public Defender has knowledge that subordinate lawyers, because of their caseloads, cannot comply with their duties of diligence and competence, the Public Defender must take action.”); Wisconsin State Bar Prof. Ethics Comm. Op. E-84-11 (1984) (supervisors in public defender’s office may not ethically increase workloads of subordinate lawyers to point where subordinate lawyer cannot, even at personal sacrifice, handle each of her clients’ matters competently and in non-neglectful manner).

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The obligations of competence, diligence, and communication under the Rules apply equally to every lawyer. All lawyers, including public defenders, have an ethical obligation to control their workloads so that every matter they undertake will be handled competently and diligently. If a lawyer’s workload is such that the lawyer is unable to provide competent and diligent representation to existing or potential clients, the lawyer should not accept new clients. If the problem of an excessive workload cannot be resolved through the nonacceptance of new clients or by other available measures, the lawyer should move to withdraw as counsel in existing cases to the extent necessary to bring the workload down to a manageable level, while at all times attempting to limit the prejudice to any client from whose case the lawyer has withdrawn. If permission of a court is required to withdraw from representation and permission is refused, the lawyer’s obligations under the Rules remain: the lawyer must continue with the representation while taking whatever steps are feasible to ensure that she will be able to provide competent and diligent representation to the defendant.

Supervisors, including the head of a public defender’s office and those within such an office having intermediate managerial responsibilities, must make reasonable efforts to ensure that the other lawyers in the office conform to the Rules of Professional Conduct. To that end, supervisors must, working with the lawyers they supervise, monitor the workload of the subordinate lawyers to ensure that the workloads are not allowed to exceed that which may be handled by the individual lawyers. If a supervisor knows that a subordinate’s workload renders the lawyer unable to provide competent and diligent representation and the supervisor fails to take reasonable remedial action, the supervisor is responsible for the subordinate’s violation of the Rules of Professional Conduct.

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