Thursday, March 4, 2010

Client vs. Attorney

I saw something in court yesterday that made me stop and think. I will preface what I am about to write by admitting I know nothing about the case or the client.

There was a defendant in court being charged with a crime for which the State is seeking the death penalty. Again, I know nothing more than that. But it's safe to assume he's been charged with some heinous murder. The defendant is represented by two public defenders. Both were there but only one talked.

If you recall I previously wrote that indigent capital murder defendants are assigned two public defenders who are members of the State's capital trial bar. Also, money is allotted for the hiring of expert witnesses.

I took note that the defendant was being kept from standing next to his attorneys in front of the bench. He was being held over to the side and had a sheriff on either side of him. This was odd.

He was also in IDOC custody as opposed to Cook County Department of Corrections custody. In other words, he's currently living in prison and not the county jail. IDOC guys wear yellow jump-suits and are brought into court in handcuffs and leg irons. Jail inmates wear Khaki shirts and pants and are rarely restrained when brought into court.

The defendant wanted his attorney to attempt to negotiate a plea of guilty in return for a life sentence (this is my guess). But his attorney was asking for more time and money to hire their own doctor to evaluate the defendant's mental state. This was upsetting the defendant but he wasn't causing a ruckus.

His attorney said he had an ethical and professional duty to have his client examined by their own doctor. But that despite his legal advice, his client wished him to enter into plea negotiations with the State. The attorney was looking for help from the judge. And he got it.

Mental health issues are problematic. Many defense attorneys, especially in death penalty cases, attempt to make mental health an issue from day 1. This can be done for a number of reasons. Obviously if insanity is going to be used as a defense, a doctor must opine the defendant was legally insane at the time of the crime. Pretty simple.

But sometimes raising a mental health as an issue can be done to delay and postpone trial. A lot of attorneys I know like to delay all litigation as long as humanly possible. Personally, I don't do this. I move cases. I don't like waiting to see if witnesses die or memories fade. I hate going to court and continuing cases when I have no reason to. I have better things to do and too many courthouses to cover.

This defendant was chomping at the bit to address the judge. For some reason it's always people being represented by a PD that want to talk to the judge. In this case, it was pretty obvious the attorney wasn't telling the judge what the client wanted him to.

Judges know there is often a lot of friction between PD's and their clients. Though rarely accurate, many PD represented defendants feel their attorney isn't really on their side. PD's are thought to be working with the prosecutors. I know this not to be true, but I also know that due to case load, PD's are usually slow when it comes to litigating cases.

As a defendant this has to be frustrating. They are brought to court maybe once a month and for 2-3 minutes are brought before the judge where they really have no say in what goes on. And since this defendant is in IDOC custody, it is doubtful his attorney ever visits him. Therefore, some defendants feel cheated and left out of the process.

Like all judges do, this one told the defendant before he spoke that anything he said could be used against him. He was advised not to talk, but the judge said he would listen.

The defendant said he was already cleared by the State's doctors. The State's doctors said he was neither insane or mentally ill. And any doctor hired by the defense, on the State's dime, would be a waste of time and money. He wasn't going to talk to any more doctors. He wanted to plead guilty, right now.

This created a problem for the judge, which he explained. The judge said he would not feel comfortable taking a guilty plea unless he was sure the defendant was fit to give it. The judge was covering his butt. He doesn't want this case bouncing back to him from the appellate court. No judge does.

Now back to the PD and his ethical and professional duty. If the PD reasonably believes there might be a mental health issue, then he absolutely has the duty to hire a doctor to examine his client. But, if this has been a delay ploy, doesn't he have the duty to let his client plead guilty? Well, no. Actually the client has the right to plead guilty. Sort of.

The judge explained to the defendant a few decisions about his case that were his and his alone to make. He was told he had the right to choose how to plead, to have a bench or jury trial, and whether or not to testify. Everything else, he explained, were strategic decisions left up to the lawyer.

Getting off on a tangent: I love hearing the word "strategic" in court. It reminds me that in many ways, litigating is like playing chess. Or being in war. That's how I see it. Remember, I advised all of you to read your Sun Tzu. The Book of Five Rings by Miyamoto Musashi is another good read, but more esoteric than The Art of War.

Returning now to my story...

I guess this defendant's right to choose how to plead has been temporarily suspended. There must be something in the record that, despite the State's doctor's opinion, made the judge not want to accept a guilty plea. And this created more friction between the attorney and the client. I perceived the client felt his attorney was not working for him and was just delaying things for some reason.

I was once told by someone that we defense attorneys often have to save our clients from themselves. How true. But sometimes the client can save us. If you let them.


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