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By Stephen Cooper
No one wants to be charged with a crime. But, if you are, or, if one of your friends or loved ones is, here are five things to consider when deciding whether you’ve got a good defense attorney or not.
1. Irrespective of payment or a client’s guilt or innocence, from the start, a good criminal defense attorney cares and takes steps to ensure the client’s constitutional rights are protected, and vindicated, and that the client is treated fairly and humanely by the criminal justice system. This doesn’t mean everything is going to go smoothly, or, that every decision from the first court appearance is going to go in the client’s favor. Usually, and particularly with serious charges, it doesn’t. But, a good defense attorney, whether representing an accused serial killer or shoplifter, is going to fight tooth and nail for their client — and it should be obvious they are — even if decisions by prosecutors, probation officials, and judges don’t immediately reflect their efforts.
2. Criminal defense attorneys, like judges, prosecutors, probation officers, and cops, are “repeat players” in the criminal justice system. Not always, but often, before a criminal case begins, the defense attorney has an established working relationship with the prosecutor and a passing familiarity, or better, with other repeat players in the case. This can be good, because if the attorney has a good reputation (for being competent, passionate, and ethical, for example), they will be in a better position to negotiate and advocate for the client as the case winds through the system. This relationship between repeat players is important to be aware of because some defendants (or their family members) might see the defense lawyer share a smile or laugh with a prosecutor or probation officer and start immediately thinking — jeez, is this person on my side? But, the reality is, that smile or laugh may be part of a strategy the attorney is using to secure an advantage — be it information that might help defend the case, the dismissal or reduction of charges, a good plea deal, a favorable bond determination — or a million other decisions and calculations affecting a criminal prosecution. Remember the familiar adage: “You can catch more bees with honey?” It applies.
Now, don’t get me wrong, if a criminal defense attorney is constantly cozying up to the prosecutor and other repeat players such that it seems like he or she might actually care for them more than the client — that’s a problem — a big problem. But, then, likely, the lawyer in question is not zealously defending the client — see number 1 above — and the client should already be trying to get a new lawyer.
3. A good defense attorney doesn’t care if their client “did it.” Overwhelmingly, criminal defendants want their defense lawyers, just like they want everyone else, to believe they are innocent. But, a good defense attorney doesn’t care whether their client is innocent or guilty because it’s of no moment as it concerns their constitutional obligation to try and beat the case, or, failing that, to secure the best, least penal outcome. Good defense attorneys aren’t focused on whether their clients are innocent or guilty. Instead, they protect and fight for defendants of both stripes using all available energy and resources.
4. A good defense attorney doesn’t accept what is in police and prosecution reports. Once assigned a case, he or she, in conjunction with a trained criminal investigator, will immediately begin investigating the allegations by: demanding that the prosecutor turn over information (called “discovery”) about the case, collecting records, going to the scene of the alleged crime, talking to witnesses, hiring experts, taking statements, securing relevant video footage and pictures, serving subpoenas, etcetera.
5. A good defense attorney will regularly remind and urge their client to exercise their Fifth Amendment right to remain silent, insisting they not talk to anyone, except the defense lawyer and investigator, about the allegations. At the same time, a good defense attorney will regularly meet and talk with their client about their case whether the client is locked up or not. Defense attorneys are uniformly busy people, but, if they are any good, they will make time to talk to their clients. Not only do they have an ethical obligation to do so, they know and appreciate that the best part of being a criminal defense attorney is the relationships formed with clients.
So, what do you do if you or someone you love doesn’t have a good defense attorney?
Well, if it’s a private attorney being hired, research should be done to find an attorney who has a good reputation for criteria 1-5 above. If it’s a court-appointed attorney or public defender not doing their job, it will be more difficult, but generally not impossible, to secure a substitute. What the client has to do — not a family member, unless the client is a juvenile — is speak up! Without saying anything about the charges, they must write to the judge or tell the judge at their next court hearing that they want, in private, without the prosecutor present, to talk to the judge about how their attorney is failing them — using concrete examples of how (see criteria 1-5 above as a guide). There is a chance the judge will decide the client is right, or, that there has been a “complete breakdown” in the attorney-client relationship such that the appointment of a new defense attorney is required no matter what.
Stephen Cooper is a former District of Columbia public defender who worked as an assistant federal public defender in Alabama between 2012 and 2015. He has contributed to numerous magazines and newspapers in the United States and overseas. He writes full-time and lives in Woodland Hills.
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