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Brooks Holland
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Thank you for the comment, Monroe. I agree, if a judge participates simply to empower or enforce the prosecution's preferred outcome, or to push case dispositions for efficiency statistics, the judge isn't acting like a judge. I've certainly seen it happen. Same thing if the defense lawyer stands there haplessly telling the client, no choice but to do what the judge says. I have seen this situation too, although most defense lawyers I have known are perfectly happy to tell a client to choose differently when that recommendation is good advice for that client. But in our current criminal justice system, many clients out of necessity will choose a pre-trial case disposition rather than go to trial. I'm not sure how defense lawyers ethically opt-out of that part of our system without significant changes to our criminal laws. The question is what that disposition may be. A fair disposition requires open minds and good communication by both parties. In my experience, thoughtful judges can facilitate both features to plea discussions without, as I noted, favoring one side or undermining the autonomy of the parties and their advocates. I also have valued judicial participation in some cases where my client resisted a hard and unavoidable choice, perhaps for understandable reasons, but where that choice would be made *for the client* if the client did not choose for him or herself in a timely manner. And that judicial participation hasn't always led the client to choose a guilty plea--sometimes a judge's participation would confirm that a trial was the right choice for that client. But maybe the existence of the bad judge and defense lawyer militates in favor of a Rule 11 approach. Legislate here to the bad actor? Another question, if I may: your comment was framed only in terms of court-appointed lawyers, as part of this system. What about retained counsel? I have seen just as vigorous advocacy from most PDs as retained lawyers, and I have seen retained lawyers go through the motions like some court-appointed lawyers. Do retained defense counsel present a different problem than court-appointed counsel, or no problem at all? Thank you! Brooks
I agree with you of course on both counts: prosecutors, or any lawyer, should not be held to a now or never standard, and historical reflection can make a big difference in how we understand an event or record. But that's the question of my post. Assuming a factual basis for the allegation, why now? The passage of time does not benefit all revelations.
Hi Monroe: Many thanks for the welcome. Just noticed your response—apparently we aren't notified by email when someone comments? Having represented hundreds of clients in this situation, I agree that this program is very important. Hard to predict how the program might affect lawyer representation negatively without all the details on the program. I suspect not much, though, with thoughtful lawyers like Robin Steinberg structuring the program and any training to avoid likely problems. Yet, any time money for which the lawyer is responsible in some way—directly or indirectly—enters the attorney-client relationship, decision-making can be affected, no? Even if the bail money comes from a discrete fund from the public defender office's operating budget, some relationship still seems to exist between the office and the fund—the office established the fund for its own clients’ use. I assume lawyers will not be able to send all clients to this fund for bail money. Therefore, I wonder, who will decide the criteria for referring clients to the fund, what will these criteria be, and how much discretion and control will individual lawyers retain to refer or not refer under these criteria? If some discretion exists, will lawyers feel pressure, expressly or implicitly, to protect the fund against a high forfeiture rate or bad outcomes, so fund donors won't flee the fund and public defenders can report high return rates and good dispositions, as we see in this article? Confidential information available to the lawyer could influence lawyer judgments about which clients will "succeed" according to whatever the program's criteria are. Just some off-the-top-of-my-head questions, more than assertions. But with the limited resources and time that public defenders often have for their entire client base, these lawyers frequently must triage. Still, this triage should reflect the lawyer's independent judgment of how to pursue each individual client's objectives competently and diligently. Client access to bail is critical to this process, for sure. But, if lawyers have any interest in making a financial program outside of that representation look "successful," lawyers could triage differently when arguing for bail, counseling clients, negotiating dispositions, or litigating against bail forfeitures. I suppose the key is truly to separate that bail fund money from individual lawyer-client relationships.