Re: Young Student Interviews Seasoned Lawyer

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On 12/21/06, Hardy Parkerson, Atty. - Lake Charles, LA wrote:
> You Can't Keep a Good Man Down!
>
> - by Hardy Parkerson, Atty.
>
> As I sit at counsel table, I begin to write notes to
> my teenage client who is charged with armed robbery.
>
> "You have the right to plead guilty and to ask for a
> pre-sentence investigation.
>
> But if you plead guilty, you waive all errors (get no
> appeal).
>
> Some cases can't be won.
>
> We should have taken the offer.
>
> We did not.
>
> We just have to take our licks.
>
> At least we tried!
>
> I did my best to get you off.
>
> It didn't work.
>
> At least we tried!
>
> We need now to decide if we have anything to gain by
> going to trial.
>
> Our options are:
>
> (1) Try the case; get found guilty, sentenced; appeal.
> We might win the appeal.
>
> (2) Plead guilty, in which case we have no appeal.
>
> If you are tried, we probably won't win the appeal,
> however.
>
> Few people win appeals.
>
> Some do.
>
> There is no doubt about it: we were railroaded; you
> didn't get your legal rights.
>
> You were denied your right to a hearing on discovery,
> a hearing on your Motion for Bill of Particulars, a
> hearing on your Motion to Quash and one on your Motion to
> Suppress Evidence.
>
> To appeal, we must first get convicted and sentenced.
>
> If you plead guilty, you waive all errors; get no
> appeal.
>
> There is a beneficial effect to pleading guilty.
>
> It's like 'We showed him. He buckled under, admitted
> his fault/guilt.'
>
> Psychologists call it catharsis: a coming clean, a
> facing up to one's acts.
>
> In other words, a guy who is obviously guilty but who
> won't admit it, makes them (the Judge) mad.
>
> But if he 'fesses up,' comes clean, that's
> good. 'He's learned his lesson,' they say.
>
> What we are doing here is personalizing the
> defendant, letting the Judge watch you until she gets to
> know you. From time to time, look at her; let her see you,
> look you in the face! Look her in the face, but not in the
> eye, lest she know what we are up to.
>
> For all practical purposes, there is no jury that
> will find a defendant not guilty, unless the defendant can
> prove his innocence.
>
> We screwed up when we did not take the deal the
> prosecutor offered. We took our chances, played our cards.
> We had a bad hand. We lost. I'm sorry! I am as sorry as
> you are!"
>
> Whereupon the defendant writes "You did your job!" I
> feel good that he appreciates what I have done. I write
> him a one-word note: "THANKS!"
>
> I continue to write notes to him.
>
> "As a lawyer I try too hard sometimes. Trying too
> hard sometimes can hurt a lawyer's client. But I can't
> stand a weak-kneed 'plead-guilty' lawyer, afraid to go to
> trial, afraid to stand up to the Judge or to the D.A."
>
> My young client then adds a footnote to my note.
>
> "You have really helped me and my family out a lot
> and I am pretty sure they appreciate it as much as I do,
> Sir!"
>
> I almost cry as I add my footnote to his: "THANKS!"
>
> There is an art to picking a jury, but no science. As
> I voir-dire the jury panel, I try to get each of them to
> tell me their verdict will be "Not Guilty" if the State
> fails to prove its case beyond reasonable doubt. Some of
> them just cannot bring themselves to utter these two
> words, and these I know I need to get rid of.
>
> As the jury selection continues, it becomes apparent
> that there are still more men called to serve on juries
> than women, and a disproportionate small number of Blacks,
> as compared with a cross-section of the community.
>
> The prosecutor is attractive, a knock-out, and
> banters with the prospective jurors during voir-dire,
> especially the men. I watch her look them in the eye, and
> I think "Yeah! Yeah! I know what you're doing. You know
> how men are. Just the thought that they might, well, you
> know, let's say, win your approval, is enough to get them
> on your side."
>
> Juries are a good thing! Picking juries gives the
> public a chance to speak out about its frustrations,
> beliefs, biases, political opinions, pent-up angers, and
> such. They talk. They're on stage. They get the attention
> they so much crave, the attention they are denied at home
> and on the job by spouse, family and fellow-workers. Even
> the greats of local government have to sit and listen to
> them; and they do so gladly, and show their appreciation
> and amusement at the jurors' witty and sometimes serious
> responses and comments. The jurors entertain the
> courtroom, the judge, the prosecutor, the audience, as
> well as their fellow-jurors. Their fellow-jurors laugh; a
> good time is had by all. It is like a party. It would be
> nice if we could break out a bottle of wine and have each
> a glass. Everybody gets his or her turn to say his or her
> piece, to sound-off, to tell his or her little story,
> always with lots of local color. Each juror waits with
> eager anticipation his or her turn to mount the soap-box.
> No one rushes the jurors. The judge does not cut off the
> jurors like she cuts off defense counsel. The prosecutor
> listens like a kid at the feet of his teacher as the
> teacher tells the afternoon story. All ears are turned
> towards the speaker. What performances! What soliloquies!
> What drama! What one-liners! Some of the humor would make
> Jay Leno envious. How the prosecutor palliates and
> palpates, massages and manipulates, coos and drools over
> each potential juror! Everyone gets his or her turn, and
> each tries to out-do the other. "Do you have anybody in
> law enforcement?" the prosecutor asks. Each knows some cop
> personally. Each has experienced some crime or another; if
> not directly, at least in his or her family; and each gets
> his or her turn to tell his or her story about it; to
> externalize it, along with all of his or her pent-up
> emotions and frustrations. Of course, none of this would
> ever make a juror not be fair. Of course not! Sympathy and
> compassion do not play a role, as each prospective juror
> will agree; and the school principal declares that
> he "will presume the defendant guilty, I mean, innocent,
> until proved guilty beyond a reasonable doubt."
>
> Now the teacher is on stage once again. Even the
> librarian makes her debut. While the other jurors were
> performing, she was rehearsing her lines. She gives her
> performance. What a tour de force! Certainly she can be
> fair!
>
> Only the old Black man is tight-lipped, as always. He
> has learned to keep quiet in the presence of such
> authority. He knows the power of the Judge, the prosecutor
> and even of some lawyers. But Breaux, the Cajun, says his
> piece, gives his performance. Like the teacher, the
> librarian and the others, he wouldn't miss it for the
> world.
>
> Throughout the morning justice moves.
>
> We picked the jury; whereupon we threw in the towel,
> entered a plea of guilty. The Judge sentenced the
> defendant to the minimum time: five years without benefit
> of probation, parole or suspension of sentence. She had
> no choice. She almost cried as she sentenced him. Talk
> about personalizing the defendant!
>
> The day is done. I am now at the coffee shop where I
> have retreated to lick my wounds. I am down. I write. I
> write to myself things that are too personal for me to
> relate here. I call the Judge and prosecutor and court
> personnel names not fit for print. It's my way of dealing
> with defeat, externalizing. I'll get over it; I always do.
> It reminds me of something I once read: "’I am wounded,
> Father William,’ the young man said, ‘I will lie me down
> and bleed a while and rise and fight again.’"
>
> I write to myself: "Don't get me for a criminal
> lawyer. The judges all hate me, and they'll take it out on
> you. I never understood how a judge got even with me by
> taking it out on my client. And instead of the reporter's
> writing about the real story, that the criminal justice
> system has broken down, that the criminal courts are so
> backlogged that hundreds, if not thousands, of felony
> cases die on the vine for want of prosecution, he'll put
> another slant on it, deal with personalities, not issues.
> He'll give me that old Black-lawyer job, the one the Black
> lawyer gets every time he goes to court and stands up and
> answers back to the White judges. Oh, yeah! They want him
> to cow-tow, to hold his hat in his hand and say 'Yazzah,
> Yazzah, Yo Honnah....' But he won't do it. He stands up
> like he has a right to be there; like he is as much a part
> of the court and the legal system as the judge; and they
> don't like that. Right now I'm so sick of it all! This
> judge thing has me so down I do not know what to do. I
> want to curse, but can't. The Judge can say what she
> pleases; I cannot. The law is too frustrating! Defendants
> have no rights, none. Judges can run over the law at will.
> One day I may look back and laugh, but not tonight."
> Finally, I say to myself, "Face it, Turkey! You lost! You
> were defeated! The game is over!" I tell myself, "This
> ain't my first rodeo, and it won't be my last." I kick
> myself. I tell myself that I have helped many, but this
> time I messed up my client when I turned down that plea
> offer. My client was railroaded. I would appeal but I have
> no confidence in the appeals court either. They just
> assign those appeals to inexperienced law-clerks who gloss
> over briefs with a broad brush and
> write "affirmed", "affirmed", "affirmed", "much
> discretion", "harmless error", ad infinitum, ad nauseam.
> I tell myself, “At least I was in there fighting for my
> client; there is something to be said for that."
>
> I begin to sing to myself, "Life has its little ups
> and downs...."
>
> I tell myself that I'll make it through the night
> O.K. and tomorrow I will have forgotten it all, and I'll
> be ready to go again.
>
> As they say, "You can't keep a good man down!"
>
>
>
>
>
>
We have all been there. I used to talk about a kid in school
who never lost a fight. My grandfather used to say to
me, "then he hasn't fought in enough fights".