66 Representing the Accused the charge. Depending on the jurisdiction, grand juries may also investigate lower-level offenses, civil matters, and governmental corruption. General Thoughts About the Stages of a Case The criminal procedure law relating to the state in which you practice will usually set forth the periods in which certain stages of the case must occur. It will often describe what types of documents you may file and what those documents may include. Become familiar with these statutes as you begin to handle cases. For example, if a defendant is arrested, the state may require that the defendant be arraigned within a certain period or that the accusatory instrument charging the defendant with the crime contain certain legal and factual information. If you examine the documents and learn that the deadlines have not been met or the documents do not meet the legal requirements, you may be able to obtain your client’s release. Your knowledge and evaluation of the case may be the difference between your client’s incarceration and release. D> For many court events, a defendant will be required to be present _jPometimes courts will hold conferences in chambers when defendants are not present. If significant events occur outside the presence of a defendant, the defendant may have been deprived of his due process rights. If certain legal issues are addressed in chambers and not on the record in court, where the Proceedings are recorded by a stenographer or recording device, they may not be preserved for appeal. But there are times you might not want to object to cettain violations of your client’s rights, if the violation ensures a greater likelihood of winning on appeal in the event of a conviction. You have to learn what you can do and must do at each stage of the case to maximize your client’s benefit. As you gain experience, you will.The First Interview The first meeting with a client can set the tone for the rest of the relationship. Like a first date, you want to make a good impression and let the client know you are smart and caring and the person she wants to be with for the forseeable furure. And, a first date, you should prepare. There are several way you may meet the client for the first time. You may be assigned or retained, and you may meet the client in a jail, in a courtroom, or in your office. Sometimes you can plan for the first meeting, and sometimes the meeting happens as you are waiting for a case and a judge appoints you. Sometimes you are assigned after the client has made several prior court appearances, and sometimes a client has had prior counsel. But it is likely that you will meet most of your clients early in their cases, and you will be their first attorney (at least on that case). Clients Who “Drop In” to the Office If you work in an institutional defense office, individuals may stop in for assistance, and depending on the policies of the office, you may be called to meet with them. If you accept cases as assigned counsel, a defendant may be given your name, phone number, and office address and may wind up at your door. If you are retained, this may happen, as well. Some clients may want to see their assigned or retained attorneys right after leaving court, or may seek to obtain assigned counsel or retained counsel, by just dropping by the office. Although it may seem inconvenient, you may quickly find that you prefer clients who stop in to those who are difficult to reach and do not return calls.68 Representing the Accused Sometimes clients may not realize that making appointments is a more appropriate way of meeting their attorneys than just stopping by. Or they may be near the courthouse and have difficulties with transportation, so that a quick walk over to your office might be easier than getting back downtown a few days later. Many clients do not have telephones and do not have ways they can be easily reached. Tf client or potential client stops in and you have time to sce him, then do so. If he stops in and you do not have time to see him, you should at least assess whether the client needs immediate attention. Is the client being sought by police? Is the client being investigated for a major felony? If so, you may have to set aside your other plans to deal with the emergency. (How to deal with the emergency is described more fully below.) If the client is trying to retain counsel or meet his attorney for the first time, you will have to decide whether to set your other matters aside or ask the client to wait. If you cannot see the client at that time, either you or a secretary should make an appointment, write it down for the client (preferably on your business card with your telephone number on it), get the client’s Phone number (and an alternate number if possible), and request that the client call if he cannot make it to the appointment. You will find that many } clients will miss appointments. Do not take it personally. Visits to the Jail What is the difference between a jail, a correctional facility and a prison? Sometimes, itis just a matter of how the locality has named the facility. But whatever you call them, there are differences between what we commonly describe as jails and prisons, A jail or local correctional facility may be used to detain people who are charged with crimes, but have not been convicted of them. Jails may also house defendants who have been convicted of crimes, but who have had sentences imposed that involve “local time” or a sentence that is lower than the period that results in a sentence to prison. Jails may be run by the local government. In contrast, a prison, sometimes also known as a correctional facility, is usually the location where those convicted of crimes are incarcerated.The First Interview 69 Usually, prison sentences exceed the periods for which those convicted of crimes can spend in local jails. Most of your clients who are in custody will be held in the local jail. Occasionally, they may be serving sentences in state prison while they have charges pending in court, and they may be transported back and forth for court appearances. Sometimes they may be held in neighboring counties if they have charges pending in other jurisdictions. Sometimes clients who have federal charges pending may be detained in federal facilities. If they are alleged to have been in the country illegally, they may be detained at an immigration facility. Visiting a Client at the Local Jail Each local jail will have its own set of rules and policies. Become familiar with them before your first visit. Jail visits often take more time than you might expect, even when you are familiar with the procedures. If you are not familiar, you may be turned away or have to wait even longer. When visiting, make sure you leave yourself extra time for waiting to get in, and waiting for your client. Before your first visit, if your office co-workers cannot provide you with the necessary identification and information about the procedures required for jail visits, you may wish to contact jail administration. Explain that you are an attorney making a visit for the first time. Write down the name of the person you speak with and bring that to the jail when you visit. (That way, if the person at the entrance tells you that the policy you are following is not the jail’s policy, you can explain you spoke with the administrator and see whether the administrator can help iron things out.) Make sure you have the necessary identification for a jail visit. It may be a business card and license or an attorney’s identification card issued by your jurisdiction. If you do not have the requisite identification, ask the jail administrators what alternatives exist. There are constitutional “Right to Counsel” issues that make jail administrators seek to ensure that attorneys can get in to see their clients. Most jails and prisons will not allow you to bring in cell phones or other electronic devices, dangerous instruments, or items that can be made intoa) weapons. You will probably be required to lock up certain property and submit to a search of your person and property. Obviously, you should not carry any illegal substances or weapons with you. You should be permitted ! to bring in legal files and items necessary to conduct your interview, such as a pen, a legal pad, and the documents relating to your cases. If you have to arrange to bring in a laptop or other electronic device to review evidence with a client, make the arrangement with the jail administration prior to your visit. You may learn that a client needs medication the jail is not providing, or wants other items that might be easy for you to bring in. I cannot stress enough that the fastest way to end your legal career is 10 try to sneak: something in toa shent. Do not try to provide a client with medication, moncy, or other items considered contraband. Not only is it against jail policy, but it is also likely a violation of your penal law. Although you may want to learn the penal law, that is probably not the way you want to learn it. There are times you will have to share discovery, motions, or other legal Papers with a client. Find out what the jail policies are relating to providing the client the documents. Jail personnel may wish to search through an envelope or folder, but should not read the documents within. Location, Location, Location If possible, an attomey’s visit with a client should be in a private place where you can speak freely without others overhearing your discussion. Any discussion is protected by attorney-client privilege unless others are also listening to the conversation, Each jail will have its own procedures for attorney-client visits. A jail may have non-contact visits in which you speak through a window, contact visits in a visiting room shared by others, or contact visits in which you are provided your own office to meet with a client. Generally, the more privacy and more face-to-face contact you can have without physical obstacles, the better. You will want to start the meeting by shaking a client’s hand. You may wish to review documents with a client, have the client sign releases, or deal with other matters that require contact.The First Interview 71 If your jail does not offer contact visits for attorneys, you should consult with an organization that protects prisoners’ rights and see if you can get assistance in obtaining contact visits. At times clients may be going through drug withdrawal or suffering from severe mental illness that makes them unpredictable or dangerous. At those times the jail personnel may require that they closely monitor your visits. You should save any conversations about the case until you have a more private setting. The Substance of the First Visit If the client has stopped in or you are visiting the jail for the first time, it is likely you will discuss the initial procedures of the case. Usually, at the point where you enter the case, there will have already been an arraignment. You will probably talk about the legal processes following arraignment with a client. If you are replacing other counsel, you may be in a later stage in the case. Sometimes family members will contact an attorney’s office before an arraignment, perhaps following an arrest or while police are looking for a suspect. Occasionally, individuals being sought by the police will seek legal assistance. In these circumstances, you will have to act quickly to establish your role in a case and protect your client’s rights. These circumstances will be discussed more fully below. The discussion you will have with a client will vary, depending on a variety of factors, including whether the charge is a misdemeanor or a felony. This, too, will be discussed below. Appearances Do Matter Tam a public defender, so I have a bias to overcome with many clients. I believe my clients are entitled to feel that they are being represented by a professional, so when I meet clients, I try to appear—well, professional. Even if it is a weekend, if it is the first time I am meeting with a client, I will wear appropriate “lawyer clothes.” I think it helps instill confidence in the attorney.2 Representing the Accused a a a I think looking professional is even more important for the young attorney, who may appear too inexperienced to the client. ‘Ihe suit, or jacket and whatever, convey a degree of professionalism that may help overcome the client’s concerns, Sure, I know we all want to be liked for who we are, but let’s face it—we live in a superficial world, and it will not change tomorrow. Prepare Before you meet with a client, you should have reviewed the accusatory instruments and any other documents you may have, the applicable statutes defining the offenses the client is charged with, and the relevant sentencing Statutes. Try to find out whether the client is on probation or parole and what impact that will have on your client’s custodial status and future Sentence, if any. If you have a copy of the client’s statement, and it makes Out a possible defense, read the statute or law relating to the defense. Bring a legal pad, business cards, and a pen, as well as the file and other televant documents. You may wish to bring a copy of the statute defining the charge so that you can review it with the client. The Meeting Make Sure you are meeting in a location that is private enough that your conversation cannot be overheard. In a jail, this may be a challenge, but you may be able to tequest private rooms during business hours. T always shake clients’ hands when I meet them for the first time (and every me afterwards), I think it conveys a professional and respectful relationship. I also refer to clients by their last names—Mr. or Ms. X ot Y. Tf they ask me to call them by their first names, I will. This is simply a style choice, but I think it sets the tone for the relationship. At the first meeting, you may wish to have a checklist of topics to cover. You will have to obtain information from your clients, but remember, clients may not have an accurate understanding of their past legal citcumstances or other facts. Try not to rely completely on what a client has told you, instead using it as a basis to pursue further information and give preliminary advice.The First Interview 73 At the first interview, consider asking the client the following questions, which you may not cover completely in the first meeting, but make sure you hit the first four: 1. Where were you borne (not "-1re you a citizen?”) People do not always know their citizenship status, but they know where they were born. If they were not born in the United States, contact an immigration expert before resolving the case with any plea or disposition. Note the client’s citizenship or lack of citizenship on your file, and do not take any plea unle: advise a client about immigration consequences is deemed ineffective assistance of counsel. See Padilla v. Kentucky, 130 S. Ct. 1473 (U.S. 2010). you know that you have made this inquiry. Failure to 2. Aresou on probation or parole? It is important to obtain this information because any plea, even with a conditional discharge, may result in a sentence in prison or jail if the plea establishes a violation of probation or parole. (Know the difference between probation and parole. Probation is community supervision in lieu of jail, and parole or post-release supervision is supervision following a prison sentence.) If the client is on probation or parole, find out who the probation or parole officer is. Mark on your file whether the defendant is on probation or parole, and never take a plea if your file does not reflect that you have that information, know the consequences, and have informed your client. If the client is on probation or parole, you must caution her not to discuss the new charge(s) or any technical violations (violations of conditions of release that do not constitute violations of the law) with the probation or parole officer. Often parole officers and probation officers will try to visit the client soon after she has been taken into custody. The officer will try to obtain information about the charges from the client before the client has been informed not to discuss the case with the officer. The admissions given by a defendant to a probation or parole officer may serve as a basis for holding the client in custody and may be used by the prosecutor (although there may be legal issues as to whether the probation or parole officer violated a74 Representing the Accused defendant’s right to counsel if the defendant’s right to counsel had attached). You want to try to prevent that from happening. You may want to prepare a slip that you can hand to clients, or write one out, that conveys the following message: I do not wish to discuss my present charges with you or any matters relating to my probation or parole supervision, based on the advice of my lawyer, (your name). I do not wish to waive my right to any legal proceedings. | do wish to go forward with all hearings I am entitled to. I am not agreeing to any search of my person or property. You may tell a client to read the form to the probation or parole officer, or hand the officer the form. Thete may be circumstances in which you can resolve a case with a Sentence or disposition that is concurrent (cunning at the same time) with a sentence the client receives for the violation of probation or Parole. This might require speaking with the prosecutor, probation or Patole officer, and/or judge about the pending charges and probation or Parole sentence. You might be alerting the prosecutor, officers, or court to something about which they were unaware (though often these days, Probation and parole offices are updated daily about arrests of those under their supervision). You should discuss with your client the pros and i . : . ne’ cons of trying to coordinate parole or probation sentences with dispositions on new charges. This means that the client may be charged with violating the conditions of his release, and face violation proceedings that can result in a separate sentence based on the violation, The violation could result in a return to prison for one OF more years. That is why it is so important to determine probation or Parole status, even if you work out a disposition to a low-level offense. A person on probation or parole may face jail or prison time if he is convicted of a new charge. The sentence can run consecutively—after the sentence the person may receive for the charge. The sentence may be a great deal longer than the sentence for the new charge. For example, a defendant may plead to disorderly conduct and receive aThe First Interview 15 sentence of time served (time spent in custody pending disposition of the charge). But if he is on parole, the parole officer may violate him. 3. Have you been sentenced in a case in which the sentence was suspended, or had a charge that has been adjourned for a while during which the court will monitor Jour sentence? You must determine whether a conviction on a new charge will result in resumption of a prosecution in an old case. If that is a possibility, see whether you can coordinate dispositions between the new case and the old case. But be aware—you do not want to alert the prosecutor to an old matter that may not be revived. On the other hand, if you do not resolve the case, and the old case is revived, your client may your client whether you should speak with the prosecutor and/or judge from the prior case about the charges and advise your client of the potential negative consequence from alerting a prosecutor or court to something about which they were unaware. ‘ace worse circumstances. You should discuss with 4. Doyou have any other charges pending? If the client has other charges pending, you must find out what the charges are, what courts they are pending in, whether the client has counsel on the charges, who the judges are, and who the prosecutors are. The client will probably not have all of this information. But if the client informs you of other charges, try to see if the client knows which courts they are in and who her attorneys are on those charges. You may be the first attorney representing, in which case you may have to take steps to ensure the client has counsel on the other charges. You will want to try to coordinate handling of the cases with other counsel, and determine whether the cases are related in any way. 5, Have you ever been convicted of a crime? If so, what was the crime? When was the conviction? Where was it? And what was the sentence? Prior convictions may elevate misdemeanors to felonies, or may cause a client to face a mandatory prison sentence or a higher sentence.6 Representing the Accused 6. Please give me names and contact information for family and friends. Get a list of names, phone numbers, and addresses. Find out whether any are charged in the current offense; you cannot talk to them if they are. If your client is in jail, are there any family members or friends your client can stay with if released? Who can be contacted if you cannot reach the client? Can any of them post bail? 7. Give me your contact information and alternative contact information, Indigent defendants move frequently and may not have consistent phone numbers. Some use phone providers that permit the service to go on and off frequently. 8. Are there family members you want me to discuss your case with? Are there family members you do not want me to discuss your case with? Although a client may want you to speak with certain friends or family, you should decide whether this could potentially harm the case. Discussing a plea with patents of a young client may be a good idea; discussing a client’s Cooperation with police with anyone is a bad idea. Be aware—some clients ay have more than one significant other. Get their names and find out hich ones you should speak to and which you should not, and do not mix ‘m up—or at least do your best not to confuse them. 9. Did you have a cell | phone at the time of your arrest? Tf so, where is the phone now? If the client had a phone, were there photographs or texts on it? What were they? This is important in sex offense, child pornography, drug, and weapons cases especially, possibly alibi cases, and cases in which the client may have communicated with other suspects prior to the offense. 10. Where were you arrested? Questions related to this topic will assist you in beginning to explore Fourth Amendment issues, such as whether there was a street encounter, automobile stop, or entry into the client’s home or place where she stays, resulting in aThe First Interview 77 search of your client and/or her property that went beyond what is permitted by the Fourth Amendment or your state’s search and seizure law. 11. Were you questioned by police? If so, where and when did cach officer speak with the client? Do not ask whether the client made a statement—the client may think if it is not in writing, it does not count. ‘Try to find out whether a discussion took place in a room that appeared to have a camera. If so, there may be a videorecorded statement. Find out whether the client recalls signing any documents. If so, there may be a written statement or a consent to search signed by your client. 12. Were there any witnesses to the event? If so, where do they live? What are their names? How do you reach them? Be aware that sometimes clients use what they call “street names” for friends and acquaintances. ‘hese may be nicknames that make it harder to find someone. Clients may tell you they do not know their friends’ “government names.” ‘The government names are their actual names. But street names may be useful to you too, so take them down. 13. Doyou have any history of medical treatment? Is the client on medication? Does he have any history of mental health treatment? Any history of head injury? Does the client receive Supplemental Security Income (SSI) (awarded by the federal government to individuals with disabilities)? Does the client have any history of alcohol or drug abuse? Treatment? If I think the client may be developmentally or learning disabled, I may ask her to read something to me, such as a form part of the accusatories, and tell me what it says. I try to do it in a supportive and non-threatening way, explaining it helps me understand what they understand. Bear in mind that if a client says she cannot read because her glasses are no good or she does not have her glasses, it may mean the client is illiterate. 14. Where did you go to school? What grade did the client reach? Was he in regular classes or special education classes?78 Representing the Accused When I am representing a younger client, I ask if he is attending school to prepare both for the bail application and the plea bargaining process. Ifa client says he attends school, I ask whether he is in regular or special education classes. I also ask the client who says he goes to school, “Yes, but do you go to school? Every day?” Often, these questions generate different responses. It is important to get this information because if you persuade a judge to release your client so your client can return to school, but your client has not gone and will not go, the judge may learn of this, and it will harm both your reputation and your clicnt’s likelihood of getting a better disposition. 15. (Ifyou are considering a bail application) I need your history of employment, ties to the area, criminal history, history of bench warrants, and any other information that reflects a likelihood that you will return to court. Do not rely exclusively on the client’s representations about criminal history and bench warrants, as this is checked by the court, and if the client is inaccurate (either intentionally or accidentally) and you tell the judge what the client told you, you have some explaining to do. 16. Are you on any social networking sites? Consider having the sites made “private,” and remember you cannot destroy evidence. If the social networking site maintains the information, shutting down the site may not be destruction of evidence, but you will have to determine the site’s policies to ensure you are not violating any ethical or legal rules. lf the client is in custody, get permission to review her social networking site. Have your investigator obtain whatever information may be helpful, including information from witnesses and/or complainants who may be communicating with your client or social network “friends,” and then have a family member make the site private. You and your investigator may not misrepresent who you are to obtain information, but you should copy pages that may be helpful or harmful to your client. The helpful ones may be useful during plea negotiations or in court later. The harmful ones are things you will have to know so that you can be prepared in the event the police or prosecutor also had access to the information.The First Interview 79 17. Do you have any injuries? If so, arrange for your investigator to come and photograph the injuries. Ask the investigator to note the locations, size, and description of each injury. Have each injury photographed. 18. Give me a detailed account of everything that happened leading up to the arrest. If you do not ask for this information at this point, do it as soon as possible, so that the details are fresh in your client’s mind. The above list does not cover every circumstance or topic you should address in your meeting with a client. But it should provide a good start. Advice at the First Interview You should always advise a client at the first meeting (and usually all subsequent meetings) not to speak on the phone at the jail about his case. Phone calls with inmates in the jail in my jurisdiction are monitored, recorded, and provided to prosecutors. In child sex offense cases, prosecutors and police may try to have an out-of-custody defendant make admissions to the child in a “controlled call,” in which the child is told what to say and the call is monitored by police. You should also advise the client that he should not discuss the case with anybody—anybody—else. You should explain confidentiality, and that it does not work if the client tells another person about the incident. Inform the in-custody client that other inmates cannot wait to get information from a defendant that they can turn over to prosecutors to improve their sentences. You should advise clients that if they are on parole or probation, they should not waive their preliminary hearings. Preliminary hearings are proceedings held to determine whether a probationer or parolee has violated conditions of probation or parole. These hearings are used to assess whether there is enough proof for the violation proceeding to go forward, and also to determine whether a probationer or parolee should remain in custody during the pendency of the violation proceedings. They are separate proceedings from the criminal proceedings. Sometimes these hearings provide you with an80 Representing the Accused opportunity to obtain discovery relating to the criminal charge, or to cross- examine witnesses in the criminal case. These hearings can be very valuable tools to explore the criminal case. Consider writing out a note or keeping forms with you that the client can give to the parole or probation officer. The note should include a statement: “I do not wish to waive my preliminary heating. I want to have my preliminary hearing.” ‘Tell the client to read the note or hand the note to the probation or parole officer. Remind the client that he should not even admit curfew violations, as those will support a finding that the client has violated probation or parole. Clients sometimes ask for copies of their records. Caution them— especially clients with high-publicity cases, homicides, or sex offenses— that if other inmates gain access to their documents, it could affect their safety (in sex offenses, cooperation cases, or gang-related cases). Records may also enable other inmates to attempt to cooperate against your client, claiming they have information from the client, when in reality they obtained it from the records. Tea client is charged with an offense involving his own children or other tives, caseworkers from Child Protective Services may come to the jail '© question the client. I advise the client not to speak with anyone from any agency about the case, hn client is mentally il, mental health professionals may come to see the not t ee AY the client is religious, clergy may visit. I advise a client speak with any of these individuals about their cases, though I usually reserve that advice for defendants charged with felonies. ae Proceedings will require that the client make a decision to ie the Case to consider a plea offer, I explain that to the client. If the client is interested in exploting a plea offer, 1 ask the client to give me Permission to adjourn the case for a limited period if necessary to facilitate plea negotations. That gives me the opportunity to negotiate without returning to the jail to get permission, T explain to a client: 1. The upcoming court proceedings, including explanations in felony cases of preliminary hearing, grand jury, and indictmentThe First Interview 81 2. The possibility there may be a plea offer and the steps we should take if we want to try to obtain one (and that it is part of my job to relate to the client a plea offer) 3. If the case is a felony, the client’s right to testify before the grand jury (and usually my advice that it is not a good idea to provide testimony at that stage of the case, but that I have to know if the client wants to, to advise the prosecutor in time) 4. The client’s right to a jury trial and the likelihood that the case will be resolved by either plea or trial (and lesser possibilities of ‘al or dismissal based on motions) Perhaps legal issues that seem to be presented by this early view of the case (with a reminder that we do not have discovery and will not get it until later in the case) 6. The range of sentence the client may face if convicted of the charge and, if I can anticipate it, the range of dispositions that may be available on a plea offer wo Perhaps more important than the advice you give is the manner you use and the way in which you listen. Make sure you do not appear judgmental, even if speaking with a client charged with the most heinous of crimes. Make good eye contact, and listen as the client speaks. In fact, you may want to follow the rules you give your kids about how they are supposed to interact. Generally, do not interrupt unless you have to focus the client. Even if you think you know the answer or the right decision for the client, do not rush the client or cut her off—you are much more likely to get a client on board if she feels she has been heard. And do not rule out a ridiculous story until you have investigated. There are many times the strangest stories may actually be true. If you have to look at your watch, let the client know you have somewhere to be so you are keeping track of time. That way, the client will not think you are just trying to cut short the interview and do not care about what she has to say. “Active Listening” Techniques You may find certain techniques helpful in facilitating communication with clients. These techniques are often used by mental health professionals in counseling sessions. They enable a person to feel that what she is saying is being heard and help build a foundation for positive communication.eee ernie teeter tamara erences cameras 82 Representing the Accused One such technique is to use small phrases, sometimes referred oe “minimal encouragers,” to prod a client to continue speaking. “Go on,” T see,” and other similar phrases may let a client know you are listening. Another technique is to summarize what the client has told you and nee it to him. This will help ensure you are accurate in your understanding © what the client has related. Sometimes you may choose to “reflect” feeling or content, letting a oe know that you recognize what he is feeling at the moment. For examp He you might say to a young woman who tells you she was defending hers against her boyftiend, “It sounds like you were really afraid of what he was Boing to do to you.” i Fos just Sometimes using silence to allow a client to compose himself, or jus' express himself, is one of the best techniques. You are not the client’s counselor or therapist, but with clients facing Setious charges, you will likely become one of the most important people in their lives Developing skills to listen, not interrupt, and let your clients Ow that you cate and are paying attention will go a long way to enabling 308 to work well with them and will contribute to development of a good **putation in the community. There are times you will have to end an interview with a client before the client pate: You should explain to the client that you are sorry to have to do that, SuYoUhave other obligations, and you will be meeting with him regularly. You Should plan to visit your clients routinely. Strive for once every two weeks. As special circumstances atise, you will have to visit the clients mote often, Felonies If a client is facing a felon that apply to misdemean (sometimes referred to charge, in addition to discussing the procedures ‘ors, you should also discuss preliminary hearings as probable cause hearings) if they apply in your jurisdiction. You should discuss grand jury proceedings if they apply. (Most states have some form of grand jury proceedings, and about half require that, absent a waiver of grand jury presentation, more serious charges beThe First Interview 83 Ptosecuted by indictments filed by a grand jury. Check your state’s statutes to determine whether a felony must be prosecuted by indictment.) Tf your jurisdiction requires grand jury indictments for prosecution of Serious charges, and if the case is likely to be presented to the grand jury quickly, discuss with your client whether he wishes to testify before the Stand jury. (Ihere will be further discussion about grand jury in another chapter, but consider reviewing this decision in the first interview if the case is likely to be indicted quick Emergencies Sometimes clients will arrive in the office in a crisis. The police may be investigating them for serious crimes, or they may be seeking counsel based ©n their belief they will soon be investigated for such crimes. Police officers May be secking to question them, and they may even have arranged to talk to the police. ‘They may have warrants out for their arrest. Several steps should be considered in these situations. First, take the steps necessary to ensure that you or your office will be tepresenting that person. If the person retains you, take the steps necessary to ensure you are retained, or that you will be representing pending retainer. If you work in a public defender’s or Legal Aid office, you must use the Procedures set up by your office in such circumstances to ensure that you are assigned and may act on the defendant’s behalf. That might require that You contact a judge to notify the judge that the defendant is financially eligible for your services and is requesting that you be assigned. Some judges want defense counsel to submit orders before attorneys may be assigned. Make sure you have such orders available in your computer forms if your judges have this requirement. Once you are assigned, discuss the case with the defendant as outlined above, Find out which police officers are seeking to arrest your client and contact those officers (and all of the relevant police agencies) and, if appropriate, social service, parole, and probation agencies, and advise them that you represent the defendant and that she does not wish to speak with them and does not consent to a search of her person or property: Note the fames of the individuals you have spoken with and the times you spoke, Follow up with confirmatory letters.84 Representing the Accused Even if police officers tell you that they just want to talk to your client, nothing good is likely to result from such contact. A well meaning officer might try to achieve a better disposition for a client who has cooperated, but prosecutors and judges do not have to honor the arresting officer’s request, and often do not. One interesting way to test the officer’s desire to help your client is to call the officer who wants to speak to the client and ask what the charges are, and if you can be provided a copy of the accusatories. I have yet to have an officer cooperate with my requests. There may come a time when your client has to turn herself in to the police. As a defense attorney, you should always make every effort to prevent your clients from making admissions or confessions to the police or granting Permission for police to search their property. As defendants rarely understand what information is damaging and what is not (and without full discovery and investigation, you, as the lawyer, cannot fully grasp the import of any statements made), “he only good statement to police is no statement fo police. (Uf a defendant makes an exculpatory statement to police, the Prosecutor can choose not to use it at trial, and generally, the defense is barred from introducing it} ‘Your job is to minimize the possibility of having clients give statements to Police. One way is to advise the clients themselves that the only thing they Should say to police besides their names is, “I want a lawyer.” Another way is you to contact police agencies yourself. In emergencies, you will do just jr. NEVER HAVE A CLIENT CONFESS TO THE POLICE. If you think others should know what the client told you, or it may give a family y” SOME Peace, or you can help solve a ctime, become a prosecutor or a police oeces As 4 defense attorney, your duty is to protect your client, not society. only exception to this “do not talk” rule is the prosecutor’s offer of a benefit to your client in exchange for information—more about that later. If possible, you should artange for the client to turn himself in to the police at a time when you can accompany him. Make sure the client understands not to speak with the police—even to provide an address in certain cases, such as drug cases. If the client is charged with a crime that occurred recently, you must ask the client the following questions: © Was the client wearing the same clothes as when he came to your office?The First Interview 85 * Is the client carrying a cell phone or other electronic device that might provide evidence to the prosecution? Is the client’s home likely to be searched, and, if so, is evidence likely to be found in the home? You cannot destroy evidence, but you should try to anticipate what is likely to ccur in a case and attempt to respond appropriately. There is no reason an attomey should allow a client to walk into custody with a phone that has Photos of guns or pomography on it, or clothing worn at the time of the incident. Perhaps the police were not going to be looking for the phone or other Potential evidence, or the items are not evidence of the crime being investigated, so why hand it to them? Hide and Seek Sometimes a family member or friend may contact your office to attempt to Secure assistance for a defendant who has been taken into custody for Westioning. In such situations, you must act quickly. Take whatever steps you must to establish that you can act as counsel for the individual. Then make every effort to prevent the police from Obtaining a statement from your client. Once a judge assigns you or you have entered into an attorney-client relationship, you must immediately locate the client and advise the police that the client is represented by Counsel, questioning must ceasc, and the client is not agreeing to 4 search Of her person or property. Officers may feign ignorance about the location of your client or actually lie about it. Therefore, you may wish to split a list of police agencies with your co-workers, and contact all agencies. Ask whether the client is in their custody, and ask to speak with investigators. Note the Names of all you have spoken with, and advise each one that you are tepresenting the client, that questioning should cease, and that the client is not agreeing to any search of her person or property. Note the time you have advised them of that. Do not be surprised if nobody will acknowledge knowing where your client is. Contact the chiefs of the various police agencies and advise them (or86 Representing the Accused whomever you can reach) of the fact of your representation. Note the times of those conversations and the names of the people you have spoken with in those offices. If you are fortunate enough to find your client, have the same telephone conversation with the officers or investigators holding and/or questioning your client. Advise them that you are representing the client, you want all questioning to cease, and your client is not agrecing to any search of her person or property. Ask whether the client is free to leave, and if so, ask them to release her. Request their names and note the times of the communications. Then make your way to the police department with an investigator or other co-worker to speak with the client. Do not be surprised if questioning has continued. Speak with whichever supervisors you must to gain access to your client. Note any observations of the client—injuries, mental health status, etc. Speak with your client outside the presence of officers, or if that is not possible, direct the client not to talk to you at that point. Ask whether the client is free to leave. Ask what the client is charged with. Note all the responses. When Clients Question You Through the course of her career, even the best defense attorney is likely to hear many comments from clients questioning her knowledge, experience, and ability. You will likely develop your own responses to the questions you are asked. Some of the questions you may be asked or comments you may hear include: I want a real lawyer. © Public defenders work with the Prosecutors. * Public defenders work with the judges. © Public defenders are public pretenders. * How many cases have you tried? How many have you won? © Do you believe in God? © Do you believe me? ¢ How can you represent me if you do not believe me? © Are you going to fight for me?The First Interview 87 Some of my responses include the following: © “Public defenders are real lawyers. In fact, we specialize in criminal defense, so we have a great deal of experience in the field.” @ = “Tdo have to work with prosecutors and judges, but my goal is to do the best job I can for you. If I was nasty to the judge or prosecutor every time we spoke, it would be hard for me to get a reasonable plea offer or get the judge to listen to my arguments at trial.” In terms of cases tried, 1 try not to answer that question directly, though I have a great deal of experience. I advise the client that every case is different, so what has happened in other cases does not necessarily mean that it will happen in the client’s case. But ] assure the client that I will work very hard for him and do everything I can to represent his interest. (And I will.) Many clients will ask about your religious beliefs or assert that God will take care of them, so they do not have to consider a plea offer. Depending on the client, 1 may or may not share some of my thoughts on the topic, But for clients who refuse to take a reasonable plea because God will take care of the c: I remind them of the old saying, “God helps those who help themselves. There is also a story about this that I have, on occasion, related to clients, involving a man stranded in a flood. A neighbor offers to drive the man away before the flood comes, but he assures the neighbor that God will take care of him. Someone comes by with a boat, and the man says he does not need assistance because God will take care of him. Another person comes by with a helicopter and offers to lift him out, but he says God will take care of him and refuses the help. Finally, the man drowns. When he gets to heaven, he asks God why God did not help him. God says, “What do you mean? I sent you a neighbor, a boat, and a helicopter.” As for clients who question whether I believe them, I try to redirect them. This issue usually comes up if I am trying to persuade a client to take a good plea offer. I tell them that what I believe is not what is important—it is what the jury is likely to believe that matters. I tell the client I will do the best I can, but I am concerned that a jury will find the evidence is sufficient to convict. I also tell them I am happy to go to trial, but I am concerned that they will regret the consequences if they are convicted after trial.88 Representing the Accused A Word About Mentally Ill Clients If you handle criminal cases, over time, you will represent many who are mentally ill. Mental illness is not, in and of itself, likely to result in dismissal or reduction of charges. Prosecutors and judges may perceive the mental illness to contribute to dangerousness and refuse to reduce or dismiss charges despite the defendant’s inability to control his actions. If your client has a history of head trauma, the injury may affect the client's ability to form intent or to reason appropriately. ‘his may contribute to a defense for trial, but it also may make it more difficult to discuss decisions with the client during the course of representation. Mental illness or head trauma may affect the case in one of two ways. Mental illness or head trauma can telate to a defendant’s ability to proceed with a case (competency) or whether the defendant can be found not guilty due to the mental disorder, If a defendant is unable to understand the proceedings and assist the attorney, the defendant may be determined to be incompetent. The Procedures relating to competency vary from jurisdiction to jurisdiction. Lack of competency may have different results, depending on the level of the charge. Although it may result in dismissal of charges and perhaps temporary institutionalization on low-level charges, it can result in lengthy detention on more serious charges, depending on your jurisdiction. A client ae not competent initially may be medicated and treated until the Psychiatrists and/or psychologists conclude the defendant is competent, at which point the case will resume. There are some clients who will never become competent. Depending on the level of the crime and your jurisdiction, such permanent incapacity may result in lengthy detention, or pethaps, telease to medical care, When considering whether to raise the issue of your client's competency in a case, you should consider the possible consequences if the client is found to be incompetent. Ifa client was mentally ill at the time of the crime, you may wish to use evidence of that illness to establish that he could not form the mental state necessary for the crime, or that he was not guilty by reason of mental disease or defect. If you meet the client, and he seems very mentally ill, you should consider getting a psychiatric expert as soon as possible to interviewThe st Interview 89 him before he is medicated by the jail authoritie: so that you can capture an accurate snapshot of his mental state close in time to the alleged crime. This is especially important in cases involving serious crimes. If you learn of a brain inju y or mental disorder that may affect competency or the defense, remember that you must consider carefully what, if any, information to share with the court and the prosecutor before you have fully assessed the situation with your expert. If the client seems ill, but the expert says that the client simply has “anti-social personality disorder” (a chronic mental illness in which an individual’s actions may be destructive to himself and others, and in which the individual is considered unable to distinguish between right and wrong), the client will be viewed by the prosecutor and judge as a dangerous person who should probably be locked up. A defendant charged with a sex offense and branded as mentally ill may face far more serious consequences if convicted of the crime, such as indefinite civil commitment, at the conclusion of the criminal sentence. If you have a client who has a mental illness that may be the basis for a defense in the case, you may have to serve a notice of intent to offer psychiatric evidence at trial. Review your criminal procedure statutes to determine whether that will be necessary.