In my fifty plus years of practicing criminal defense, I have heard the above title more times than I can count. And, to a certain extent, I agree, for several reasons. Let me begin by explaining that in State appointments, the attorney is faced with very marginal, and in many instances, well below adequate compensation for the time required in representing a court appointed client, due to the fees that are allowed by the judges and county commissioners. This is especially true in the smaller and more rural counties. What is striking in this resolve is that the judges make their normal salaries for their work, the prosecutors make their normal salaries for their efforts, the bailiffs make their normal salaries for their employment, the court reporters make their normal salaries plus payment for their work on appeals, and the law enforcement officers make their normal salaries for their investigation and testimony. However, the defense attorney is required to perform his or her duties with substandard compensation, limited sources of funding, and often having said compensation/funding reduced by the judge when the case is disposed by trial or plea regardless of the amount of time an attorney has had to put into his representation. Often times the court appointed attorney does not put the time and effort that should be devoted to a particular case, as a result of overhead costs, family expense, and in today’s society, repayment of student loans. However, I have seen some court appointed attorneys who “padded their vouchers,” others who do not even set up files, others who try to convince their client to plead guilty to keep from going to trial, and some who have no business proceeding to a jury trial due to lack of experience or fear of jury trials. This is not to say all court appointed attorneys fall into these categories. I have known many very fine and competent court appointed attorneys who are without any of these faults. I am writing this article to provide attorneys, who accept court appointments (State or Federal) with practical tips that will aid in practice and dispel the title of this article. I would encourage you as a defender of the “citizen accused,” to at least try them out.
- Go and see your new client in custody or have the client come to your office if they are on bond. In this regard, I suggest that you do so at times when it does not take away from your “paying clients” (i.e., on your way home at the end of the day; on your way to the office in early morning; on weekends, when it is less crowded, or at vacancies during your office hours).
- If you are unable to meet with your client in person, quickly send a letter to the client telling them when you will be there to visit or setting an appointment in your office at a “lax time”. Try not use “Zoom” or “phone” – you need to see your client in person and let them see you. You need to make your visit personal.
- At the initial visit, advise your client of the following:
- You are appointed but not to worry, you will do your best for them;
- You will go over the discovery with the client after you receive same and review it with the client. Also, explain that under Art. 39.14, you are unable to provide the client with copies of the discovery, but you can make sure they see all discovery, whether in custody or in your office;
- Explain the “attorney client privilege,” advising the client that you cannot discuss the case with anyone other than the client without written permission granted by the client;
- Have a good interview form to get the basics, and a brief description of the facts and advise the client that you will get more facts from them after you review the discovery;
- Make sure to get information about and contact information for your client’s family, employers, and possible witnesses. Let your client know that you are interested in taking care of them as your client, so this information may be helpful later;
- Advise your client of the particular charge(s) brought and the range of punishment facing the client. Back this up with a letter to your client, advising them of the charge(s) faced and the range of punishment for each charge;
- Inform the client that you do not accept collect phone calls from the jail due to the likelihood of the conversation being recorded. As a matter of fact, I routinely inform the client that I never use jail phones during visitation. I have, on several occasions, had something come up during representation that was discussed “privately” on a jail phone;
- Make sure to take the time to build trust between you and your client using your personality to instill assurance;
- Explain to the client that your staff will not discuss the case with a client or members of the client’s family. Explain that the client should only discuss the case with you or when you are present;
- Advise your client, if in custody, that you do not have time to come out to the jail “to hold their hand” and to see how they are doing. Explain that doing so would take away from the time that you need to spend on the case. If the client needs to talk to you about something, tell them to have a family member or friend call and let you know the client needs to talk to you and you will be out as soon as you can. I also usually take a postage paid envelope or two addressed to me and leave with the client, so the client can send me a message if necessary;
- If the client is not in custody advise the client to keep in touch with you about changes in reference to address, phone number, employment, or new charges filed that you may not be aware of, to ask you questions, and let you know about any new evidence that the client may discover;
- Let the client know that you care about them and the outcome of their case, using your own method of doing so;
- Advise your client that they will be sent copies of every document filed in the case and follow through by sending it to them (mail from an attorney is a “status symbol” with inmates. And, other inmates will often tell your client, “I don’t get these from my court appointed attorney, and I only see my attorney when I get to court”). If the client is not in custody, send them to their mailing address or email address;
- I also recommend that in the first visit you express the seriousness of the offense and that you do not have a “magic wand” to make everything go away. Explain that criminal cases are based on facts. An attorney cannot change facts, but in some instances the attorney can manipulate these facts to benefit the client but you are not in a position yet to make an evaluation of what the ultimate result may be at this time. Also, explain that you may or may not be able to manipulate them (i.e., you may be limited to damage control);
- Explain that after you review the discovery, and investigate the facts provided by both your client and the prosecution, you should be able to advise them on what options are available. Advise the client that they will have to make a decision on what option they decide to take. As long as a client is willing to accept the risks involved in any option, you are ready, willing, and able to give your very best to try to make it happen. But facts are facts, and the client’s criminal history always plays a part in the ultimate result in the client’s case so be sure to explain any risks that there may be.
- When you get a copy of the indictment or complaint and information make sure to send a copy of the same to your client and tell them to make sure that these papers, along with any other papers you send the client, are important and the client should keep them;
- Another situation that will help you offset your time is to file a motion for appointment of an investigator. The investigator can perform many tasks for you. If you prepare your motion properly most judges will allow you some funds to do so. If you need more funding, file a motion for it. In this regard, make sure your client knows you have hired an investigator and introduce them to your client;
- While your client is sitting in jail waiting for things to happen, or out on bond, I suggest that you use a form letter, and advise them either the present status of the case OR inform the client that you are still working on the case but have nothing of any importance to tell them at this time. I recommend that you do this at least once per month;
- Review the discovery as quickly as you can. It’s often very difficult for me to do it during the day at the office, so I do it early in the morning or after 5 p.m. when not faced with the interruptions by phone, secretaries, or “drop-in clients”. Take notes, highlight important issues while reviewing, and keep them in your file;
- As quickly as possible, meet with the prosecutor and get a recommendation for a plea. I have learned there is a lot of psychology involved in dealing with prosecutors, so you have to know how to deal with a particular district attorney or their assistant. Often times, the first offer is just a starting place with your client’s case. Tell the prosecutor that you will present it to your client but don’t know how your client will respond as you just started on this case. Don’t put all your cards on the table at this point;
- After reviewing the discovery, getting the facts, witnesses for the client’s defense, and going over the discovery with the client, including the criminal history, then give the offer to your client, and back it up with a letter confirming that this is the “present offer” and advise the client that you will continue to negotiate if they so desire. Then the psychology aspect comes in. You have to know your prosecutor and how to negotiate at this point. Only lay your “cards” out as a last resort, and even then, be very careful using intimation rather than hard facts, which can give the prosecutor time to prepare and fix any problems;
- Do not overlook preparing for “punishment”. So many times, in my past 50 plus years of practice, there was no way to win the battle over guilt and innocence. However, I have been able to win the war with community supervision or a much lower sentence than the plea-offer. Too often, lawyers focus just on guilt or innocence and put punishment on the back burner. Prosecutors generally do not focus on punishment, and you can use that to your advantage. Even to the point, don’t advise the prosecution or the court until after the indictment or complaint and information are read before the jury or judge, that you are entering a “guilty” plea and going to the jury or the court only for punishment. There are two advantages to doing this: (1) The prosecution still has to put on evidence to meet their burden of proof. But, it often times shortens or softens the facts, and (2) you are ready with your case in chief, “punishment”. If your client wants a trial, as long as they are willing to accept the risks, which you must set out for the client, you will have to go to trial and explain you will do your very best, but don’t expect a miracle. In this situation, always back your client’s decision up with a correspondence confirming their decision and setting out the risks involved. When a final offer is made, and your client accepts or rejects same you should confirm this in correspondence to your client stating the offer, their acceptance and/or rejection and if rejected, make sure you point out the risks to the client in this correspondence;
- You should also check the jail records to see if there are any “detainers” from other counties, states, parole, probation, and even Federal detainers as they have to be taken into consideration in your negotiations even to the point of contacting the prosecuting authority to find out what they are going to do and possibly even convince them make them go away and dismiss if your client is going to receive time or probation elsewhere;
- JAIL CHAINS: I am very opposed to this court dictated “docket clearing practice”. Too often, especially in misdemeanors, your clients will have detainers, parole violations, or pending felonies that could be affected by a conviction in misdemeanor court on any one or more of the aforementioned pending matters. The Courts want to reduce their docket and are not concerned with those other matters not in their court which generally affect your client adversely. It is not “justice.” I call it “house cleaning” by the Court. Your responsibility is to the client, not to the Court. I refuse to be a part of this process. You must look at all aspects. It is unfair to your client and the system to plead a client for time or probation if it will have a detrimental effect on another case facing them. You should not worry about the Judge not liking it at this point. Your client is more important than the court’s crowded docket;
- I also suggest in entering a plea, that you get your plea papers before the date the plea is going to be taken by the Court. Don’t go over this paperwork in the hall on the date of the plea hearing if possible. You should take the papers to your client, and go over each detail with them. I always have my client initial each item we discuss in “red ink” and have them sign each document in “red ink”. The judges love it, because no one else does this and you have proof that it was covered at the time it was signed.
These are just a few suggestions that will assist you in your client relationship and the Court and rebut the public’s concept of “court appointed attorneys are cop out attorneys.” You are documenting your services and communicating with your client. In many instances, the family and your client will aid in establishing trust in you, too. I have even had clients at the plea hearing thank the Court for appointing me to represent them. I have found that when you do these things, it will result in future referrals from the client and their family and friends. The compensation paid for your services will be offset by your efforts for the client and satisfaction that you have done your very best.
A final “caveat,” if you are afraid of a jury trial, or if you are worried about making a particular judge angry, don’t take court appointments. You are an advocate for your client, and you have a duty to them. You should not worry that if you make a judge angry you will not get more appointments. Your responsibility is to your client, not to the judge.
The foregoing also applies in most Federal court appointments. Many attorneys express a fear or hesitation in taking Federal appointments. Those fears and reservations are not well founded. There is a learning curve, but it is not difficult and through the “CJA” there is unlimited assistance from the Public Defenders Offices as well as webinars, forms, and manuals available to you. In addition, the fees paid by Federal appointments far surpass those paid for State appointments. You will be paid at an hourly rate for your time and reimbursed for expenses at a reasonable rate. Talk with other attorneys who take Federal appointments including the Public Defenders. They are especially helpful. You have to get “acclimated” to Federal practice. It is not difficult but it can actually be profitable. Your voucher is kept online, and when you complete your representation, you literally punch a few buttons and submit your voucher to the Court. It is rare that a Federal Judge cuts your fees, and the Federal judge will almost never will cut your reasonable expenses, even postage. In non-capital cases in the Northern and Western Districts where I practice, the budget amounts have a limit which exceeds for services $10,000.00 on a case not including expenses. In revocations of “supervised release” the budget limit is approximately $2,500.00. If you are not taking Federal appointments, they are definitely worth considering.
For those of you who do accept Federal appointments, here are some additional tips which I believe will assist you:
- Unlike in state court, “jail chains” do not apply. Often, in Federal appointments your client is not in the same city or town as your office. You will have to travel to visit your client. The initial visit should be “in person”. You have to instill trust with you by the client. I have heard numerous complaints by clients that the only time they are able to visit in person with their attorney is at the courthouse. The rest of the time is by phone or “Zoom”. You need to be “face to face” for both you and your client, and be able to make eye contact with them;
- Obviously, you can’t go to the jury for punishment in a Federal case. However, you should start working on punishment from the very beginning by getting information from your client on family, friends, employers, religion, and the community in which your client lives;
- In that regard, it has been my experience that you have to deal with U.S. Probation Officers who compose the Presentence Report (PSR). I got a form from one Pretrial Release Officer, which is very helpful in representing the client. One would think that the officers would be fair and even in the report. This is generally not true. Most of the time the “bad” is emphasized and the “good” is merely mentioned, or the report says information requested “No reply”. Remember, they get their information from the Government, and all relevant conduct is used in computing the “Base Offense Level” to increase the “guidelines”. The officers will go to great lengths to emphasize the bad conduct and the “ghost dope” when they can. I have also found on more than one occasion when the PSR reveals “No reply”, that the person, employer, or character reference were never contacted. I always recommend filing objections to the PSR when any of this occurs;
- Another matter along these same lines has to do with what I call “character letters” and also psychological or psychiatric evaluations. The officers will tell you that these will not be attached to the PSR. When I respond to the PSR I object and attach them as exhibits that the Court should take into consideration. Additionally, I always file a Sentencing Memorandum and again attach them as Exhibits knowing that at least I have provided them for the Court and his “briefing clerk” to consider;
- Always prepare your client for the PSR interview. I do this by requesting the PSR Interview Form from the Probation Officer well before the interview. I then take it to my client and we fill it out as best we can. I then forward the form to the Probation Officer before the interview. There are three reasons to do this: (1) it shortens the interview because the Probation Officer just has to fill in the blanks (2) you learn many things when filling it out which may be useful, and (3) you are giving a preview to your client of the interview and instructing the client on when and how to respond to the questions posed by the Probation Officer;
- THE PSR INTERVIEW: Always advise the Probation Officer that you want and will be physically present at the time of the interview. Don’t just be in on a “3-way call”. You need to be present and follow along with the form you have helped your client fill out. This too, will make your client trust you even more, and you are controlling the interview, not the Probation Officer;
- I have found that the Judges in Federal Court (U.S. Magistrates and U.S. District Court Judges) for the most part appreciate the time and effort that you put into a case. In my personal experience, I have even been complimented by some judges for my efforts in the case by the Court.
- In the Northern and Western Districts where I practice, we are allowed $900.00 for an expert or an investigator without first gaining permission of the Court. If additional funds are needed, you can apply “ex parte” for additional funds for an investigator or expert by filling out the proper CJA form, articulating the need, the cost, and the name of the expert or investigator. I have never been turned down by the Court. This should be utilized by you. It can reduce the amount of time or travel that you have to spend “behind the windshield” or waiting at the jail. And the judges appreciate the “cost saving”. Take your investigator with you to visit your client, introduce them, and explain that they now have two people working on the case and the client should treat them as if it were you in their dealings;
- Document all your meetings, discussions, and communications with the prosecutors, the courtroom deputies, the holding facilities, and the Court and place that document in your file. This is easily done through emails, correspondence, and documenting your voucher;
- Discovery in Federal cases is often lengthy and detailed. I have had several cases with more than 1TB of printed data, videos, photographs, recordings, etc. I presently have a case that involves 5 six-inch binders plus flash drives of videos, photos, and recordings. You have a duty to go through it all. I suggest that you do so outside of office hours, and take notes. It can be tedious and time consuming, but in order to properly represent your client you need to have all the knowledge available concerning your client. Be sure to charge for your time on the voucher;
- Keep a good working relationship and communication with the Courtroom Deputy. These individuals can save you time and expense. Always thank them for their assistance whether in person or by email. They are quite busy, but I have found that they understand matters such as conflicts in scheduling, appointments, and general assistance. I have even sent letters to their supervisors telling how much I appreciate their hard work and assistance. You would be amazed at the cooperation and consideration you can achieve by doing so;
I could go on and on with several other matters but I consider most of the foregoing are interchangeable between Federal and State appointments. The bottom line here is that you have an obligation to represent your client to the best of your ability. If you are not comfortable trying cases in federal court, then get some experience by sitting second chair. You need to see the prosecution you will be facing in the courtroom, the judge in the courtroom, and the particular way that voir dire is conducted by that particular Court. If you were a coach of a football or baseball team you would want to know how the opposing team members perform. The same concept should be followed if you are proceeding to trial whether before a jury or the bench and whether in state or federal court. Talk to other attorneys who practice before that Court, ask questions and insight of them to help you prepare for the trial. Scouting in such a manner has proven invaluable to assist me in preparing for trial.
I firmly believe that if you are going to take court appointments you should be ready, willing, and able to go to trial if that’s what your client wants. Advise your client of the risks involved, and if the client persists, it is their liberty that is at risk. In my experience, I have been involved in representing clients, I have tried cases that were absolute losers, and had so advised my client prior to trial. I have documented this for post-conviction attacks. Every once in a while, “you catch lightening in a jar” and win one or even get a lesser sentence than was involved in the plea offer. These kind of cases allow you to think outside the box and try new approaches or arguments which makes the trial exciting to you and your client. I actually got a two-word verdict in a Possession of Methamphetamine case involving a client who had more than 50 prior arrests. My motto is: “I try to treat a client the way I would want to be treated were I the client and not the attorney.”