Defending the
Criminal Case
By Ian Wallach
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| Ian Wallach Partner Feldman & Wallach www.feldmanwallach.com Recent Media Appearances |
When I meet a client, or a client’s family member or friend,
they are a combination of scared, incarcerated, restricted, and separated from
and missing those they love. The
incarcerated are oppressed by a physical cage filled with stale air that smells
of everything horrible. Germs run
rampant. Food is without taste or
choice. In jail, illness and violence
are common. If they’ve been in and out
of the criminal justice system, they are sad.
If they are new to it, they are frightened. Family members have heard horrible stories as
well as fear in the voices of loved ones.
People who are new to the criminal justice system are
shocked and angered by its apparent lack of fairness. Right from the start, the accused can retain
private counsel or put faith in a Deputy Public Defender (a “DPD”). But
because DPDs are provided at no expense, people incorrectly think they aren’t
competent. This misperception, and the
DPD’s time limitations, can lead to tension and distrust between the DPD and
the client. But DPDs can be
exceptionally-skilled, and they try over 90% of all trials, and they and know
the law and bench officers and prosecutors better than most private counsel. Private attorneys can get access to the issue
prior to when DPDs are appointed, and in many cases (especially drug cases and
DUIs) this is an invaluable advantage.
Witness statements can be locked in, inconsistencies can be timely
ascertained, negotiations – if beneficial – can be made, much-needed advice as
to what to do or not do can be given, and, most importantly, the process and
options can be explained – returning power and control to the client.
To get out of custody, someone must pay a bail bondsmen a
horrid some of money that is usually just within the ability to pay of someone
with friends and family. They will
never see this money again. What is worse, is that if the client is already
on probation, she will likely go back into custody at the next hearing, with
her bail money gone (something rarely explained by a bondsmen).
When I meet my clients, they have either been arrested or
told they are going to court. They are
scared. They are justifiably angry. If they were recently in custody, they have
experienced jail and never want to return. If they are in custody, they are tired and
scared and sad and hungry and weak and likely ill. In or out, stress is interfering with every
aspect of their life.
And then I show up and listen. I hear their version of events. I hear how they've been mistreated, by
officers or inmates or complaining witnesses.
I can explain where they are in the process of criminal justice. And clients are relieved to know where they
stand and that someone cares. They are
relieved to be reminded that they are human.
During most of a trial, I work for my client. But during trial preparation, my clients work
with me, as we dig for every bit of helpful information. The client will know the players. The streets that were crossed. Where cars were parked. What witnesses have had prior contact with
the law. And I need my assistants (the
defendant and other witnesses) in good shape.
Doctors can help with stress management.
Site visits help understand what's been accurately reported (more
importantly) what has not been.
Information about the life history of every potential witness is
paramount in proving (or disproving) credibility.
The client, the investigation, and I will develop a
theme. What happened. Why it happened. Why a less-restrictive result is appropriate
or, ideally, why the case should end and the client should go home unburdened.
There usually comes a time when the client wants to plea. When people suffer that amount of stress, desires
run a fascinating and horrible spectrum of pride to fear to shame to
common-sense to indestructibility to total vulnerability. A well-considered plea may very well be in a
client’s best interests. But some
lawyers wait for the vulnerability to appear and then settle the case. It’s a clean escape. But it may not be fair. Ten minutes later, their desire could likely
change. If my client allows, we set our
parameters before any hearing where a
disposition will be offered, so no choices are made without ample consideration.
And then there's the trial.
On one side is an advocate for punishment, charged with protecting
society. The prosecutor gets to call themselves
"the People" and sit alongside to the jury, which suggests that they
are aligned. I am forced to sit far
away, on the other side of the courtroom.
My client is forced to sit even further away, next to the bailiff and
his gun, and next to a steel door that leads to custody. So from the outset, my job is to educate the
jury that the playing field should be even.
Our jury must see that I am not just representing a
"defendant", but an "accused" -- a fellow human being that is entitled to
every right that every juror shares. My
job is to make sure that the jury never forgets the client is one of them -- even if he walked out of that metal door
and wearing cotton slippers (in other
words, in custody). Even if their past
precludes them from telling their side of the story. The prosecutor's goal is to make a jury hate
the defendant. Mine is to make the jury
respect the defendant and the justice system that is accusing him.
Everyone who is part of a system accepts that it's flawed
and is open to learning that it can be improved. People are quick to assume that there is a
filter that keeps weak cases from being tried.
Jurors are empowered when they learn that the filter is actually the
jurors themselves. Juries are the great
protector. My job is to remind them of
that.
If the matter proceeds to trial, then the events, the
witnesses, and I will tell a story (if there is one to tell), and question the
story told by the prosecutor. My
client’s story will be tangible and relatable.
The jury will see images and places and people and ask the unanswered
questions we've identified. At the end
of the day, if I've done my job right, my client will know that he was
protected. Potential outcomes will have
been explained. The client has seen that
this imperfect system -- which at one time seemed only punitive -- is also
protective.
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