Why It Sometimes Sucks (And Then Doesn’t…Sorta)

It’s often hard to explain the little reasons it can sometimes suck being a defense attorney, so I figured I’d strike while the iron is hot and write about something that happened recently. It should highlight one tiny little reason why the job can suck. It should also highlight why the job doesn’t just suck all the time, but is more of a roller coaster of suck and not-suck.

A couple of weeks ago, I had a settlement conference in a case. The goal was to see if the parties could reach an agreement. The prosecutor and judge were both great to deal with, and my client was very reasonable. He was facing a harsh mandatory minimum prison sentence and understood by the end that he would not receive a probation-guaranteed offer. He said he would consider a probation-eligible offer. I thought there was an excellent chance the judge would give him probation. Everything the judge said and did indicated the same.

All we needed to resolve the case was the approval of the prosecutor’s boss, so I sent something in writing to the prosecutor justifying the offer we’d discussed. She, in turn, was to review it with her boss. At the very end of the business day the day before hearing, almost two weeks after she got my deviation request, the prosecutor responded. After an entire hearing intended to determine if my client would accept a probation-eligible offer, she ended up making a prison-mandatory offer.

I went to bed the night before the hearing knowing my client would be upset, and rightfully so. It would seem like we tricked him into agreeing to something then changed the terms. How could he possibly trust anything now? He was a nice guy with no prior criminal history who was led to believe by all of us that he might not go to prison. Even if he didn’t blame me for it, I’d feel bad about it. He’d be that much more upset with me springing it on him the night before, the morning of, or at the hearing. I couldn’t win. I decided to give him the news in the morning so I’d be the only one sleeping like shit.

I knew a few other things that only increased my frustration.

First, I knew the prosecutor had no control over her offer. Her boss, who’d never have to set foot in court in the matter, made the call. She has no real incentive to resolve the case at all. I wasn’t optimistic about her changing her mind. I knew it doesn’t happen often.

Second, because of our draconian sentencing laws and the coercive nature of the system in general, I knew my client might eventually get beaten down to the point that he’d take the prison offer. The prosecutor and her boss might resolve the case with minimal effort anyway. Why honor almost-negotiated settlements in the future at all? Soften the defendant up to pleading, make the plea worse, and still get the desired result, only better.

Third, if my client did go to trial, the system would be stacked against him in many unfair areas and in many unfair ways. A series of previously-unknown bad circumstances or bad rulings can turn even the best defense case in the world into an easy conviction for the state, something the prosecutor and her boss could both celebrate.

The only good outcomes for me and the person who matters to me would be 1) getting my client what he thought he was getting anyway after feeling misled and stressed out by the possibility of something far worse or 2) winning at trial after an extended period of stress and fear. No potential outcome carried any real risk for the state. My past jury trial wins have only really mattered to me and my clients. To my knowledge, they have never changed any prosecutor’s approach to the sort of cases involved to any future defendants’ benefit. If anything, the prosecutors who lost learned lessons about how better to convict.

You can probably see by now why I didn’t have a lot to look forward to at the hearing.

When the time came, my client was so nice about everything that it almost made it worse. He was upset and worried, but he understood. We reset hoping that the state might reconsider. The prosecutor was nice about it too, but it was little consolation knowing the emotional ups and downs my client had already experienced. When the unexpected happened and an offer like the one we thought we were getting all along ended up on the table, it was a relief, but it couldn’t undo the emotional damage that was already done.

This blog isn’t a pity party. No one should feel bad for a lawyer because something didn’t go quite right.

Who cares if someone’s angry? Who cares if no one appreciates a well-paid professional doing what he or she is supposed to do? Feel bad for the client, sure, but it isn’t about the lawyer. It isn’t about me. Ever. It’s easy to say, but it’s hard to internalize when my clients are mine to protect. It also wasn’t a single case, but one of many. It was one of many where the same frustrating themes, the unpredictability of the system and the lack of consequences for the people with real power, dictate the experience for unwilling participants and the people who, like me, devote our lives to representing them.

That’s perhaps the biggest reason why it sometimes sucks: a lack of real control and an abundance of responsibility. If you don’t have the thick skin to take it from every side in every case and wake up each day knowing what’s likely to happen and do it anyway to the best of your ability, then criminal defense might not be for you. That was some of the best advice I ever got going into this, and it’s probably still the best advice I have to give.