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PD Manifesto

A colleague and I were talking recently and she expressed frustration that there was no synthesized collection of hyper-practical, “nuts and bolts” advice for the over one hundred public defenders in our county's offices.  In light of that conversation, I started to jot down guidance I've received from colleagues and practice pointers that I remind myself of and attempt to implement in my days as a public defender.  Here's my list.  What would you add, subtract or change?
A colleague and I were talking recently and she expressed frustration that there was no synthesized collection of hyper-practical, “nuts and bolts” advice for the over one hundred public defenders in our county's offices.  In light of that conversation, I started to jot down guidance I've received from colleagues and practice pointers that I remind myself of and attempt to implement in my days as a public defender.  Here's my list.  What would you add, subtract or change?

You

Take mental health days.

Vacation.

Exercise.

Celebrate and enjoy your victories, even if they're small.

Remember that “wins” are relative; every case is different.  Sometimes times a “win” might be a an acquittal after trial, other times it might be non-life, determinate term prison deal. 

It's not only ok to cry, it's healthy.

Accept that there is so much about our work that is out of our control.

Find a co-worker or mentor that you can be vulnerable with.

Embrace your own style and voice. Not all public defenders are the same.

Colleagues

If handing off a caseload to a colleague, give them a list of all clients being transferred.

Write transfer memos.

If handing a client off to a colleague, tell your client as much.

Watch colleagues in trial. Pick and choose from them what might work for you but find and maintain your own voice.

If a colleague is on vacation, sick or in trial, gladly cover for them; what goes around comes around.

Keep your files organized and updated.  Do it for yourself, but more so for your colleagues that might have to cover for you.

DA's & The Courts

If you're going to be late to court, call the court clerk or deputy and let them know.

When discussing a case with a judge or DA for a possible resolution, be prepared, have a goal, and know your case. 

Don't request or demand a specific offer from a judge or DA unless you know that your client will take it. 

Document your interactions and conversations with DAs, especially when it comes to plea negotiations.   

Client relations:

Don't visit a client if you're rushed for time or are tired, unless it's urgent. Your client deserves you at your best and without burdensome time restrictions.

When seeing a client for the first time, especially on a serious case, get to know them and their background before diving into the charges and evidence.

Carry business cards.  Shake your client's hand, look them in the eye and leave a card with them.

Before visiting a client, prepare. Know the case. Equip yourself with updates. Outline questions you need answered. Have an agenda.

For each case, find out your client's goals and desired outcome.

Learn your client's bottom lines; what offer, if any, would they be willing to accept?

Attend every court appearance your client has, even if a colleague can cover for you or if it's just a routine continuance.

Stand next to your client when their case is called in court.  Let them know, literally and figuratively, that you're by their side.

If you're visiting a client and another client is in the same facility, pop in on the other client just to say hello, even if there's nothing specific to discuss.

If you can't visit a client, write them a letter.

Return client and client family calls.

If you have an intern, have them meet your clients. Clients love knowing there's a team working for them rather than just you.

Never talk shit about your clients, especially with or in front of DAs

Be mindful of how you interact with DAs in front of your clients.

Case prep/Pre-trial

Before a trial, identify the facts that you'll need for the inferences you'll argue in closing.

Get your investigation requests in and going early.

Always attempt to interview the alleged victim in domestic violence cases and civilians in cases where they're the primary witnesses against your client.  Chart their inconsistencies. 

Do scene visits.

Sometimes resolving a case for a good outcome requires as much time and effort as trying a case.

Get to know the jury instructions for the charges in each case. Read the use notes.

Run bail motions, even if they won't be granted. Shine a light on your client's humanity.

Unless you're gunning for a no holding or worried about additional charges, don't be afraid to explore during a preliminary hearing.  Get all the bad facts out then rather than at trial. 

Challenge the prosecution narrative that your client is a gang member. Don't accept the stereotype.

If the police say your client is a gang member because of their associations with particular people, investigate how your client knows those people.

If your client is going to testify, attempt to confirm and corroborate their story through other witnesses.

No free strikes.

Always caution clients about the pitfalls of felony probation. 

The plead as charged, get out of jail today “deal” is a trap; tell your clients much.

The only difference between pleading as charged before trial and being found guilty after trial is the amount of time your client is subject to.  Trial, though, gives your client a shot at an acquittal.

If your client is out of custody for trial, let them know that they could be remanded immediately if there's a guilty verdict.

Don't assume your out of custody client has appropriate clothes for trial.  Ask them if they do.  If they don't, find some for them.

Jury Selection

If your client might testify, voir dire the jury panel on their ability and willingness to judge your client's testimony the same way they would any other witness.

Ask the jury panel if they can presume your client innocent despite his/her being arrested, brought to trial and appearance.

Don't ask leading questions of jurors unless you're trying to get them kicked for cause. Ask open ended questions to get jurors talking.

Talk to and ask questions of the quiet prospective jurors.

Don't leave anyone on the jury you haven't heard from. They could be the silent killers.

If a prospective juror lines up for a hardship or is asking to be excused, you likely don't want them. If left on, they'll often be in a hurry to convict your client and get the hell out of there.

Client's Testimony

Lean toward not having your client testify unless there's a fact you need that they can testify to that no one else can.

Have your client practice cross examined before they might testify.

Always seek to challenge the admissibility of your client's statement if the prosecution may use it in their case in chief.

Cross Examination

One fact per question.

Get rid of “is that right” or “isn't that true” at the end of cross questions. Just state the fact you want with a question mark at the end of it.

Don't argue your case during cross. Get in, get the facts you'll need for the inferences you'll argue in closing, get out.

Don't ask a question on cross that you don't know the answer to.

Use legal size paper.

Write down everything you hear on direct.

One folder for each witness you'll cross. One topic per page of questions for each witness.

Opening Statements/Closing Arguments

In opening, state and illuminate the facts that you plan to rely on for the inferences you'll argue in closing.

In opening, state your theme of the case.  Repeat it at the start and end of your closing. 

Remind jurors that they are to work together but vote alone.

Highlight witness inconsistencies, particularly those of an alleged victim.  Those inconsistencies can equate to reasonable doubt.

Don't stand behind a podium in opening or closing. 

If you're going to use powerpoint, display minimal words and/or pictures and don't read from it.  Don't let it re-direct the jury's attention away from you. 

Don't just gloss over the reasonable doubt standard in your closing; emphasize and explain it. Explained by us and applied correctly by a jury, it's our client's greatest ally
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Sentencing

Attend your client's probation interview.  If you can't, at least prepare them for what to expect and what to say.

Encourage your client's family and friends to be present for sentencing.  If they show up, introduce them, on the record, to the court.

Remember to file your notice of appeal.

Close your file. Move on to the next one and keep fighting.
 

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