Category Archives: LAWYERS

THE KIND OF PERSON

I wonder what the judges think when they hear the same private attorney give the same canned speech about how his client is “not the kind of person” we typically see in court. This client is different. Not like a criminal at all. Would never be expected to commit a crime. Never! Week after week, these unique non-criminal individuals take their seat in the defendant’s chair in the unlikely shape of a white, educated, middle-class man, usually a family father. A homeowner. A dog walker. A decent sort of fellow, all around. Not who we (the public) would expect to beat his partner or drive drunk. And so this attorney feels justified in asking the judge to set his client apart and give him, well, special treatment at sentencing. Because he is the kind of person who expects and deserves it, and he is paying through the nose for it. Specifically and coincidentally, across the board:

“This defendant, Your Honor, is a very special person, whom I am pleased to present to You today. He extremely remorseful for his actions. He realizes that he used poor judgment and made a mistake, and he is eager to pay for it and put it behind him. This situation was truly eye-opening for him, Your Honor. It was a wake-up call. It has had an extreme impact on him and his family. They were truly shocked – it was so out of character! Let me introduce him briefly, as I know the Court’s time is limited:”

(Here comes a spiel about his job, his home, his volunteer activities and even some hobbies. He may do some woodcarving, or enjoy long walks in the mountains. He may pitch in with money or time at the children’s school (always managing to have more than one child) and if he doesn’t play an instrument, he is sporty, and likely to enjoy pickup games of (fill in sport) at his local gym or park. He is active in professional organizations, has a lot of responsibility of work, and it is vital to his family that he can keep on his career path, as he is a breadwinner of some merit. He is a pillar of the community. Any character-building challenge he faces such as chronic high blood pressure, male pattern baldness, struggles with the sedentary nature of his job, or a dependent mother-in-law may be inserted here.)

“I have truly enjoyed getting to know this defendant during the course of our work together on this case, Your Honor. He has been a real pleasure to work with. He has shown up for every appointment on time. He has never missed a court appearance. He was prompt in getting his evaluation completed, and it shows that he needs minimal treatment, which he has already completed. He has taken this case very seriously.

“This defendant, Your Honor, is stepping up and taking full responsibility today, rather than fighting the case and going to trial. He brought me on board the very day after the incident. Given all the circumstances, the prosecutor has agreed to reduce the charges in exchange for my client’s guilty plea, and I ask that you accept the plea as it is written, particularly as to the joint sentencing recommendation. It was heavily negotiated and is agreed upon by all parties.

“This truly was a one-off, Your Honor. Without attempting to minimize anything, because my client is truly remorseful and has learned an important lesson here, this defendant is not the kind of person you typically see in your court. He is as surprised as anyone, and I feel confident in stating that You will not see him in your courtroom again. In fact, I feel very confident in stating this!” (At this point, the attorney nods at his client, and the client nods back).

“In considering the sentence, Your Honor, I wish to point out that my client has already faced severe consequences from this case. (Fill in the blank for the “he has been punished enough” justification – an angry spouse, a boss who found out, a suspended license, a no-contact order, fines and fees, a night in jail, having alcohol monitoring, or an evaluation and treatment). He is very embarrassed about what happened and he has already taken the steps he needs to make sure it never happens again. So we respectfully request that You take this into consideration.”

Ironically, the whole canned speech is made mostly to convince the paying client himself that he is getting a special deal. The courts where I work do not give any reductions in the charge or lower sentences, let alone free rides, to drunk drivers or domestic violence aggressors simply because they can afford a private attorney. There are state-mandated sentencing grids with set minimums and specific consequences across the board, and required monitoring and treatment. There are victim’s advocates involved. So the private lawyers are simply getting the same offers that the public defenders do, with a lot more fanfare. But private attorneys need to set themselves (and their clients) apart in order to to earn their keep.

I long for the day when one of these private attorneys breaks out of his role and refreshes the court with something sincere, along the following lines:

“In closing, by virtue of being able to hire me, a private attorney, my client is de facto special. He is not the kind of person to commit a crime and face the usual punishment for it. No, he is the kind of person who has likely gone through his whole life with his parents, teachers, and bosses smoothing his path and lightening his consequences, just as I endeavor to do today. It would be unfair now to suddenly treat him like everybody else in the courtroom. Therefore, even though I have simply gotten him the same deal that public defenders are offered for their indigent clients, let us close with a flourish and flare that make me look like I am not the kind of lawyer whose clients face the full consequences of their actions. Because that would hurt my client’s feelings and make him feel unsafe in his cushioned, protected world. And I was specifically hired to keep him feeling safe and entitled as he faces the heavy hand of the law, and the legal consequences of his actions, perhaps for the first time in his life. Thank you, Your Honor.”

SHACKLED

Your Honor, I object to the shackling of this defendant! He is here to plead guilty and the recommended sentence is Credit for Time Served. It is ridiculous to have him in shackles!

Marshall, can you explain on the record why the defendant is shackled?

Yes, Your Honor, he is on Ultra Status because he attacked one of our jailhouse nurses this morning.

Counsel?

Your Honor, I object strenuously to my client being shackled and want to go on record stating that he may feel coerced into pleading guilty because of being shackled. He should be afforded basic human decency. I am absolutely objecting to the use of shackles!

Marshall?

Your Honor, the defendant is in for unlawful use of weapon, and he just attacked a nurse. He is on Ultra Status. We are not going to remove his restraints.

And the alleged weapon brandishing incident concluded without any actual harm to any actual human being!

Well, counsel, I will note your objections for the record. Now I need to ask a few questions of the defendant before I can consider his guilty plea.

I see you are in shackles. Do you feel coerced into pleading guilty because you are in shackles?

No, sir!

Pressured?

No, sir!

Do you feel forced in any way?

No, sir!

Do the shackles have any impact whatsoever on your decision to plead guilty today?

No, sir!

Then I am ready to hear your plea, and consider the sentencing recommendation. And the defendant will remain shackled during this proceeding.

THEY GAVE BIRTH TO THEIR CHILD

Why do some lawyers gotta write so bad and so much?

I just ask myself.  Why?

Think about the judges and commissioners who are expected to read through piles and piles of repetitions, obfuscations, exaggerations, embellishments, overstatements, and gloss-overs.  Not to mention outright misstatements of the law.

Here are just a few public record examples.  I would love to see the judge’s face reading in the privacy of their chambers, where their facial expressions could have free play.   Imagine a short film with the judge’s expressions close-up, and the voice-over reading what the judge’s eyes must traverse and try to comprehend.  Just a fifteen minute film, obligatory for any lawyers working in family law.  Any lawyer who has billed over $50,000 in a family law case would have to go to the unedited 8-hour version with no breaks, wearing an adult diaper.

Let us peruse, and imagine this is only one document in a pile several feet high for your daily reading:

In a document chock full of specific dates and numbers, they lived together “for a while” before marrying.  Warning siren: someone is trying to cover up the length of this relationship, in order to limit maintenance or sweeten the property settlement.

“They gave birth to their child.”  Really?  That is a medical miracle.  I am guessing it was the party with the womb and the vaginal passageway who carried out that task.  Way to take credit, though.

“Evil Party contributes to three retirement systems.”  (Note: the names have been changed).  This merely means there is a work pension, an IRA, and hello, Social Security.  This does not mean a Swiss bank account.  Why try to demonize saving for retirement, especially in this economy?

“Due to financial struggles, Good Party’s company has not been able to pay them for the work they have done.”  Sounds to this reader like the company is holding Good Party’s pay and bonuses to lower shown income until the case is finalized, so Good Party can keep a bigger piece of the pie.

Evil Party “kept over spending their budget” at the exact same time Good Party was able to stash away $50,000 into a retirement fund that Good Party now claims is personal property.  Hmm.

I won’t bore you with more of this sadly typical finger-pointing and misstatement,   But let’s insult the judge’s intelligence in a new way, by having this preface to the trial brief’s Authority and Analysis:

“The following is a summary of the law pertinent to this case.  With apologies in advance and given the recent new appointments to the bench, if the court has not handled a family law matter recently, the following is offered as a guidepost.”

Among the gems of judicial wisdom offered from New Lawyer to Old Judge, is this misstatement of the purpose and scope of child support: “The transfer payment covers the roof over the child’s head, the food in her stomach, and the clothing on her back.”

Not quite, New Lawyer.  Not quite enough.

Legislative intent states that “child support orders are [to be] adequate to meet a child’s basic needs and to provide additional child support commensurate with the parents’ income, resources, and standard of living.”

Underscoring this, child support is even allowed to exceed the usual maximum of 45% of the paying parent’s net income in situations including, “but is not limited to, possession of substantial wealth, children with day care expenses, special medical need, educational need, psychological need, and larger families.”

But who cares about the actual law or facts?  Maybe the judge won’t read through the brief, or know the law, so let’s wrap up the brief by arguing that each party is so well off, there should be no child support paid at all, then stating twice within the same paragraph that Good Party’s proposed property settlement “will necessitate the sale of the family home” where the children have lived with the primary parent since birth.

Is a judge ever tempted to write a satirical fake ruling, such as:

“Children who will now be homeless are ordered to reside with the parent who took all the money and forced the sale of their family home.  Hopefully that parent will get a nanny who will get paid more than child support would have been, but in no case shall the caregiver be the actual primary parent, because that would make too much sense and there is a risk it might be in the best interest of the children.  Instead, the children are ordered to “follow the money” into the new home of their emotionally distant parent, while the primary parent is ordered to stay in a shelter and be sorry that they wanted out of this marriage.  So ordered.”

Haha!  Just kidding!  In this case, the children are to remain in the family home with the parent who has been raising them since birth, assets shall be divided accordingly, and child support shall be paid.  Because judges are not as gullible as some lawyers seem to think.  Bless their hearts and their worn out eyes and patience.

 

YOU HAVE THE RIGHT TO AN ATTORNEY

If you are accused of a crime, you have the right to an attorney.  The U.S. Constitution provides that “[i]n all criminal prosecutions, the accused shall . . . have the assistance of counsel for his defense.” United States Constitution, Amendment VI.  My state confirms and strengthens this by providing: “The legislature finds that effective legal representation must be provided for indigent persons … consistent with the constitutional requirements of fairness, equal protection, and due process in all cases where the right to counsel attaches.”

But what does that mean?  Can you pick anyone you want?  If you don’t like the one you are assigned, can you protest and demand someone better or different?  What is the basis for asking for a different attorney, if you are using a public defender?  How does the right to “hire and fire” apply, when you are not hiring at all, but rather counsel is being appointed to you?  Let’s explore this a bit.

I overheard a case where an Eastern European man accused of a hate crime was being arraigned.  All I could gather is that he yelled at a man who was not white – based on his race – and although there was no physical contact, it was charged as some kind of harassment because of the nature of whatever threats he made.  At his arraignment, he requested that the judge assign him a different lawyer.  It was a disturbing argument sociologically, but at the same time an interesting one legally.

He told the judge that his lawyer does not understand how a man from his country feels about people of another race, especially immigrants, and he wants to be assigned a lawyer who can understand his point of view.  He suggested that a lawyer who can understand nationalism, perhaps one who has represented the KKK, the Italian Fascist Party, or the NSDAP, would be a better match.  NSDAP, by the way, is the National Socialist Germans Worker’s Party, in German Nationalsozialistische Deutsche Arbeiterpartei .  If you can make it through the first very long word, you will find all four of the letters that make up the acronym Nazi – which is a lot easier to pronounce, if not easier to stomach.

In denying his motion for the court to assign a different public defender, the judge  explained that while the accused party has the right to have assigned counsel, he does not in fact have the right to any counsel of his choice at public expense.  He does retain the right to hire, and fire, his own private counsel.  But he cannot simply request another public defender based on his personal likes and dislikes.  There would have to be something ethically wrong with the attorney’s representation.  The judge told the accused that his public defender is well-respected and competent, and well-known to the court as a good lawyer, and without any evidence of ineffective counsel, the motion must be denied.

There is a US Supreme Court case in which they ruled on the accused person’s right to counsel of choice, US v. Gonzalez-Lopez, although that case is not directly on point, as it referred to privately retained counsel, and not appointed counsel.   But the Supreme Court pointed out in its ruling there that “the right to counsel of choice is circumscribed in several important respects”.   The first is that the counsel representing the accused must be ineffective.

To show ineffective counsel, under case law, one must show that counsel’s performance was deficient – but also that the defendant was prejudiced by it.  The US Supreme Court has made clear that it is not just any deficiency that gives rise to the right to new counsel or a new trial, because defendants are not guaranteed error-free representation.  “Counsel cannot be ‘ineffective’ unless his mistakes have harmed the defense …. Thus, a violation of the Sixth Amendment right to effective representation is not ‘complete’ until the defendant is prejudiced.”  US v. Gonzalez-Lopez.

The US Supreme Court mentions in their closing paragraph  of that same case that “the right to counsel of choice does not extend to defendants who require counsel to be appointed for them”.

So sure, you can handpick your own attorney to defend you in a criminal case.  Go right ahead.  It’s called “hiring a private lawyer at your own expense.”  If you are assigned a public defender you simply don’t like, because he isn’t racist enough for you, as in the above example, or for any other reason that doesn’t amount to ineffective counsel causing you harm, you can protest all you want.  But the judge has no legal basis to give you a different public defender.  So you will have to try to work with the lawyer assigned to you.  Or find some money to earn the right to “hire and fire” the lawyer of your choosing.  Because it is not a given.

 

ALFORD PLEA

There once was a case called North Carolina vs. Alford.  People in the legal field are very familiar with this case and its consequences.  A person who wanted to avoid the death penalty pled guilty to murder, but then appealed his own guilty plea.  He claimed he only pled guilty to avoid the gas chamber, and wished to maintain his innocence on the record.  Basically, he was saying he didn’t do it, but he knew he would get convicted.  Long story short, people now have the right to make an Alford Plea – officially pleading guilty, and being sentenced, without admitting to having committed the crime.

When law students and others first hear about this concept, it is a little puzzling.  Why would you plead guilty to something you didn’t do?  There is only one good reason I can think of – because the evidence the government has against you is so strong that you are pretty much guaranteed to lose at trial.  And you want to take advantage of some kind of offer that the government is making you in exchange for your pleading guilty.   In essence, although you did not commit a crime, the weight of the evidence is against you.  So to avoid even more dire consequences, you accept some kind of deal, in which you plead guilty to a crime you did not commit.

The underlying concept is even stranger and more baffling, but there is no remedy for it.  You have the right to a fair and impartial public trial before a jury.  You have other rights, such as the right to counsel and the right to remain silent, to hear and witnesses who testify against you, and to have witnesses brought on your behalf.  But what you don’t have is the right to the correct outcome.  I cannot stress this enough.  You do not have the right to be exonerated and released, even if you did not commit the crime.  You have the right to due process – the procedures must be followed.  But you can, legally, be convicted of a crime you did not commit.

Let’s take an Alford Plea case and see how this plays out.  Say you are walking to work, about a mile and a half, to the same job you have had for some years.  You have your backpack with your lunch and your work clothes, and a baseball cap on to shade your eyes as you walk in the sun.  You are sweating a little.  You want to get to work on time, and your youngest kid kept asking you to pick her up for one more hug goodbye.  You are not a US citizen, but you have it pretty good.  You have a steady job, and you can support your family in a simple way.  You walk with headphones on, and a bit of a smile.  Just a day like any other.

Around the corner, unbeknownst to you, my friend, there is a drama playing out.  In broad daylight, while another man sits in his living room,  his basement window breaks.  Someone is going to force their way into his place!  Such a scary moment for anyone, to be inside our own home and have someone break in and maybe rob and even kill us.  We all want to be safe in our homes.  The homeowner runs downstairs to confront the intruder.  But the man at the window must have heard his steps, because he has stood up and is starting to run away.  He has a backpack and a baseball cap on and he looks – well, the homeowner isn’t sure if he saw his face but maybe he slightly turned around and anyway he had on a dark jacket, a backpack and a baseball cap.

The cops cruise the neighborhood and a couple blocks away who do they see but – you.   You don’t hear the sirens with your music on.  You are bopping along to the beat, thinking about your willful little girl who demanded one more hug.  Haha, she is just like her mother.  A strong character.  A good heart.  You smile again.  You are walking briskly to the beat uphill toward your job.  You have to get to work on time.  The cops seem to come out of nowhere and you are face down on the ground and being cuffed.  You didn’t hear when they told you to freeze and put your hands up.  So they are being rough with you, thinking you were resisting.  What is going on?  What is happening?  Oh my God.

The cops take you in handcuffs to the homeowner’s house.  They tell him, we caught this guy sweating and half-running a couple blocks from here.  Is this him?  Is this the guy?  We think this is the guy.  Right?  It’s the guy.  The homeowner sees you, really sweating now, already in cuffs, with your backpack and your dark jacket that one of the cops is holding.  It’s you.  You are the guy who tried to break into his house in broad daylight.  You are the criminal we all fear and hate.  Thank God the bad guy is caught and we are safe again.  Thank God.  Yes, that’s him, the homeowner says.  That’s him.  It was him.

You are taken to jail and booked for criminal trespass.  That charge is up to a year in jail and a $5,000 fine.  If you don’t hurry up and plead guilty to that, they may also end up charging you with residential burglary, which is a Class B Felony and carries a maximum penalty of ten years in prison and a $20,000 fine.  You are not going to show up for work today, and your boss is going to be worried about you, because you always show up.  You do a good job, and your boss will never believe that you stopped on your way to work to break into a house in the middle of the day.  But what if a local jury does believe it?  Do you want to take that risk?  It is up to you.

You think about it.  You are sitting in jail because you don’t want your family to use their rent money to bail you out, and your boss says if you can get out within a couple weeks he will hold your job for you.    You think about it.  You have a lot of time to think about it.  Because you are in jail, away from everyone, not working, not having dinner with your family, not walking to work a couple minutes late – what if you had left on time?  Would any of this have happened?  But it did, and now you think and think again.  What is the best thing for you and your family?  Trial and a possible acquittal?  Yes, but at the risk of ten years in prison followed by deportation?  Or take a misdemeanor deal and be done with it?  But then you are admitting to something you didn’t do, and you will have a record.  Think and think again.

Your lawyer comes with bad news after interviewing the crime victim.  He was unshaken, completely convinced and ready to testify that it was you, and only you, who tried to get into his house.  The lawyer tried to create some doubt – he reminded him that he never saw your face.  That your dark jacket and baseball cap and backpack are so common.  But the homeowner just cut him off and said he knows what the lawyer is trying to do and he isn’t going to fall for it.  He knows it was you and he will testify under oath that you turned around – he saw your face – he would know you anywhere.  He is happy to testify – he is looking forward to it.  It pisses him off that someone would break his window in broad daylight and he wants you punished.

The lawyer lays out the options once again:  We can argue to the jury that the way they identified you was wrong – they shouldn’t have brought you to the house but should have done a real line-up, but the guy is really convincing.  I think the jury will believe him.  We can bring your boss in to say he doesn’t think you would do that, and that you were due at work. But your boss wasn’t there – the homeowner was.  The prosecutor sat in on the interview with the homeowner, and he says he is even more confident now that they will get you on the felony residential burglary, a deportable offense.  They plan to file it within the week, unless you plea out to the lesser charge.

The lawyer tells you he hates to say it, but you may be found guilty in a fair and impartial trial.  the jury members might believe the police and the homeowner, and really think you did it.  They might be convinced that you did it, beyond a reasonable doubt.  It isn’t really about whether you did it.  It is about whether the jury believes you did it.  They get to decide if the government proved their case.  So you should probably very strongly consider making an Alford Plea.  You will be saying that you didn’t do it, but you believe you will be convicted anyway, so you opt to plead guilty to a lesser charge.  It is up to you, but you need to decide pretty much right now.

This, my friends, is an Alford Plea.  Yes, you have the right to a fair and impartial trial.  But you do not have the right to a fair outcome.  So it is absolutely legal for you to be convicted of something you did not do.  And it is legal for you, in wishing to avoid the dire consequences of that, to plead guilty to something you did not do.

 

YOU GET WHAT YOU PAY FOR, DO YOU?

Years ago, I came across a study trying to parse out why certain doctors had such fewer complications in performing gallbladder removals than others.  Did it correlate to their training, their pay grade, or perhaps their hospital reputation?  The closest correlation was actually based on frequency.  If your doc has removed two or three thousand gallbladders in the last year, you are looking at a better likely outcome than if that number is two or three.  Practice makes perfect, as the old saying goes.

So how does this relate to the legal field?  A certain number of defendants seem to believe that by price alone, private defense attorneys are bound to do a better job than a public defender would.  Even if the private attorney they happen to hire is not familiar with that court, or doesn’t do many of that particular type of case.  Or sends out rookies without supervision to handle their work.

Public defenders are assigned, sometimes for years at a time, to a single court, doing the same kind of cases day in and day out.  They get to know the staff, the judges, the procedures and forms, and how things work in that microcosm, while gaining a deep knowledge of the relevant law.  What they lose in pay, they gain in a shared sense of purpose and shared knowledge.  They watch for patterns and work together to file briefs that will affect policy for years to come.  Public defenders are not in competition with each other, so they share briefs and legal theories, shadow each other, act as co-counsel, and have a great deal of teamwork as part of their day.  As busy as they may be, they are truly masters of their craft.

Since new defendants make up the majority of our cases, very few of them have any knowledge of this.  They tend to hold to the common perception that you get what you pay for.  So when they are told that they can get a “free lawyer” or they can go hire someone, it can create a certain amount of fear and panic.  Let’s take a look at what happened to one fairly typical first-time offender when he scraped it together to hire someone.  First of all, the immigrants I work with tend to hire whoever advertises the most, because they don’t typically know anyone who knows any lawyers.  And they often end up seeing a younger associate from that firm rather than the figurehead, at least from what I have seen.

Here is a true-life example.  One spouse was pushed by another who pushed back, during an argument.  Because “any offensive touching” is fourth degree assault in my area, there does not have to be any injury.  There are great policy reasons for that which I will not get into here.  Back to this thread, the police arrested one of spouses after the shoving match.  The victim now wants to lift the no-contact order, and does not plan to show up at trial.  The defendant has hired a name-brand lawyer and the person who shows up is a new associate from that office.

The private lawyer tells the defendant that a trial is completely random, like a roll of the dice, so the defendant should not go to trial.  The public defender, in contrast, tells others in this situation that if the victim does not appear, it is extremely likely that the case will be dismissed, because the prosecutor will likely not be able to prove the case beyond a reasonable doubt without the main witness.  That is standard policy on non-injury cases in this particular court.  But the private attorney doesn’t know this.  So he misses the chance to have an actual dismissal, and just discounts trial out of hand.

The private lawyer tells this defendant that he can try to get the victim to lift the no-contact order. He doesn’t mention that this a new criminal law violation.  The public defender, in contrast, typically explains that the defendant should absolutely not contact the victim either directly or indirectly, but that the defense investigator is allowed to interview the victim and ask if the victim intends to cooperate with prosecution, and defense will be notified if there is a motion to lift the no-contact order.  They also routinely clarify that violating a no-contact order is a crime with serious ramifications.

The private attorney tells the defendant that if he signs a Stipulated Order for Continuance, he is admitting guilt.  These forms are sometimes confused with  Suspended Sentences, which constitute an admission of guilt and will show up on your record as a conviction.  The public defender would explain that the Stipulated Order of Continuance will show on his record as “charged and pending”, but there will be no conviction unless the defendant fails to meet all the requirements, including following the no-contact order.  He is not admitting guilt, but allowing the court to read the police report and determine his guilt only if he fails to meet the conditions to get treatment, pay fines, and stay out of trouble.

The private attorneys tells this defendant they have to attach the police report to the Stipulated Order for Continuance, but that will be okay, because they can “write something better in the form, like it was just an offensive touching” instead of a push or shove, so it will “look better to immigration”.  As to deportation or exclusion, he says he doesn’t know, but he doesn’t think it will be a problem, and it’s probably okay.  This, in spite of the fact that there is specific case law ruling that a criminal defense attorney has an obligation to confer with his client about potential immigration consequences before allowing any kind of a plea.

The public defenders have produced some very specific immigration-safe language to use in conjunction with Stipulated Orders for Continuance, and they make sure that the police report is not attached to the order.  It is kept separately, where it will not be part of the record or easily accessible to immigration.  They actually routinely cross out a portion of the printed form, and use an addendum to create more protective language.

Further, public defenders have a set-up by which they interview their defendants on immigration issues, send that report to an immigration consultant, and provide them with some educated counseling on what the immigration consequences of various pleas would be, so they can make an informed decision on their criminal case.  They also let people know that they should not apply for any new status while on probation.  They refer them on to an immigration project as needed.  Most importantly, they encourage their defendants to follow the law, get their needed treatment, and respect the no-contact order, because the consequences will include both criminal and immigration fall-out.

Whatever anyone says, we interpreters render it faithfully into the target language.  We express no opinion; we correct no one.   And so we are called upon to give a vastly wide variety of legal advice in response to extremely similar sets of facts.  And we must treat each case the same – doing our best to convey the message and meaning of what the individuals are saying, even if we may think they are wrong.  Sometime I remind myself I am like the postal carrier, in that I am not responsible for the content of the message – just the delivery.  Yet certain packages are a true pleasure to carry, while others are heavily burdensome.

The jury may be out among the general public as to whether you get what you pay for in hiring a private attorney for criminal defense, but my general views are as stated above, because I have experienced similar situations so many times.  And while I have certainly had the pleasure (mixed with pain when justice is not done according to my lights) of interpreting for top notch private attorneys, if I ever get arrested and qualify, there are quite a few public defenders into whose hands I would put my freedom before I would feel the need to hire someone privately.

SARCASM

Sarcasm is so culturally bound.  In my native speech community, it is often used in an attempt to create a “we against them” feeling of belonging.  It is a way to show through words that “I am on your side.”  But it seldom comes across that way to non-English speakers.  I see this over and over, especially among the less erudite lawyers who may still view sarcasm as universal (because they have not yet noticed that the other person is seldom laughing along).

I offer you a simple, everyday situation as example.  A young lawyer has her client’s personal file.  She hands it back to him with a laugh, saying, “Here, take this – I don’t want to steal it from you.”  Without thinking, I process it into the target language as “Here, take this – I don’t want this to be stolen from you.”

The lawyer understands enough of the target language (but not the culture) to notice she did not hear the word “I” and she wanted to.  This is somewhat ironic, as traditional speakers of this language avoid the use of the word “I” in order to be polite and properly humble.  Instead of saying “I am here to speak,” an older traditional speaker would say, “Your servant is here to speak,” referring to herself as “your servant,” the person who is at your service, and not focused on herself by using I, me, and mine.  The polite person, by tradition, avoids referring to herself directly.

But this lawyer wants to be prominent.  So she repeats, adding emphasis and elongation, “I – I don’t want to steal from you!” Suddenly realizing that this lawyer does not want the feel and the meaning conveyed, as much as the literal words, this interpreter says “I – I don’t want to steal from you!”  But contrary to what the lawyer had hoped, her sarcasm falls flat and the client takes his file back with a look of concern rather than humor.  What has gone wrong?

Sarcasm.  The lawyer thinks the defendant is in on the joke, because she is using sarcasm, and if he gets it, he is an insider and they can laugh at the world together.  But as she is joking that she has power and control, and can take something from him, and he cannot do much about it, and that is laughable, he is not amused, as she had expected.  She has divided them instead of uniting them, by insisting on this literal translation, when use of the passive voice would have accomplished her goal in this instance.  Because in spite of whatever language skills she may have, this lawyer does not seem culturally sensitive.

This lawyer does not seem sensitive to the fact that her clients are already separated from her on many levels.  She is a well-educated, well-situated lawyer who has the knowledge to keep her defendant out of jail, or then again, as a new lawyer, she may get him jailed and then deported.  (This interpreter is not claiming that what the defendant did has no bearing on outcome – I am simply trying to relay how the defendant may be viewing things.)  In his view, the lawyer is clearly in a power position.  She is confident, while he is scared and confused.  He actually smells of scared sweat.  She doesn’t seem to see how scared he really is.  She is laughing about stealing something from him. He is not laughing back.

Joking is probably not appropriate at all in this situation.  But if joking is going to be a bonding opportunity, the person with less power cannot be mocked or ridiculed.  There has to be certain level of familiarity, comfort, and mutual trust before joking in such a serious situation could be in the least amusing.  I have seen it work between two lawyers.  And between a defendant and a trusted family member.  As professional comedians can tell you, on the whole, the best kind of humor is self-deprecating, allowing the person to laugh at the speaker.  It seldom causes a guffaw to directly mock the person with the short end of the stick.  There is nothing bonding there.

Behind every joke is something underlying that is serious in nature, and serves a purpose.  One of the fundamental purposes of a joke is to create a feeling of bonding, usually by excluding others.  If the lawyer had joked as I automatically changed it, it might have worked, because it would have included a protective stance:  “I will make sure no one ELSE will steal your things.  I am protective of you.  I’ve got your back, in and out of court.  I won’t let anyone take something that is yours – not your file, and not your freedom.  So don’t worry.”  There might be cause for a bit of a laugh in that, to break the tension, in that undercurrent.

The point is that every joke is the bubbling up of humor coming out of an undercurrent of something quite serious, often dangerous or frightening.  Konrad Lorenz, that wonderful old German scientist, wrote, if I recall correctly, in his book On Aggression (1963) that laughter stems from aggression.  We laugh to “blow off steam” and release tension, among other things.  I believe that we also laugh to make sense of things we cannot understand, and to bond with others by getting someone on “our side”.  Laughter can create a feeling of safety, when it is not directed at the listener.

In this case, the undercurrent that the defendant ended up hearing was: “I have power and control, and I can sit here laughing about you and your case.  If I wanted to, I could steal your file and you are too helpless and low to be able to do anything about it.  But I choose to give it back to you, because I don’t want to steal it.  Just one more way in which I exert my power.  I could harm you or take something from you, and there isn’t much you can do or say.”  No wonder the poor guy isn’t busting a gut laughing, but thoughtfully taking his file back with trembling hands.

This whole analysis may seem silly or contrived to some people.  I am thinking of my brother, in particular, here.  But having studied sociolinguistics, I am convinced that much of what we say is not “just words”.  Indeed, everything we say performs a social function or a purpose.   We use words for many things, and one is to create a feeling in the other person, be it inclusion or exclusion.   The function of saying “take this so it isn’t stolen” is protective. The function of saying “I could steal this from you” is a reminder of who is in power.  And a very misguided and inappropriate use of sarcasm in a tense communication situation, leaving the defendant feeling unsafe and uncomfortable.

The question comes up whether this interpreter was trying to “fix” what was said by the quick removal of the first person and changing it to passive voice.  I would argue that I was not.  I was following what I hope was the actual intent of the attorney – to bond with her client; to joke in order the lighten the mood, and to build trust.  That, I still believe, was her sociolinguistic intent.  However, by insisting on a literal interpretation, her sarcasm came through in a way that I hope was unintended.  And her client left feeling more nervous than he needed to be.

 

NEW LAWYERS

One of the hardest things about interpreting is not being allowed to intervene even when we see something going badly.  I understand all the reasons for this.  To name a few, we are not lawyers and cannot supercede the attorney’s advice.  We cannot add or subtract, improve or enhance, what anyone says.  It is not our job and there is no way for the monolinguals to parse out what is coming from the speaker and what is coming from the interpreter.  Our job is to put the accused in the position of an English speaker, who would be getting whatever quality of advice the lawyer is giving, unedited of course.

This is all outlined in our interpreter code of conduct and is of vital and central importance to our profession.  I agree that we must have clear, transparent and straightforward communication, without any interpreter intervention.  And I follow my code to the letter of the law.  It is not even hard to do, but rather a pleasure in the vast majority of cases, where the accused, witnesses and crime victims are given excellent advice and support so that “justice may be served”.

One of the local government courts I work for just changed out their defense attorney contract, likely for a cheaper one, as government entities tend to do when they can.  The result?  Tried and trusted, competent and caring and above all experienced lawyers move on.  New, untrained lawyers, fresh out of law school with limited experience step in.  And because they are overwhelmed just figuring out things like where to sit, how to get into jail to visit a new client, which of the myriad of forms to use, and how to juggle their caseloads, they very understandably like to settle some of their cases as soon as possible – but without the experience to know which of those cases can be ethically skimmed over and rushed through.

My theory is that the cases that end up settling prematurely are most often the immigrants, young women, the very poor, or others who based on their life circumstances have been led to believe that they don’t have much control over the outcome of their lives.  So they rely on authority figures to advise, guide and direct them.  Even when the particular authority figure is sitting in a new suit with the cherubic face of a fresh law school graduate.  Something as simple as saying “I think this is a good deal for you” can bring a signature to a page, and then that case is off the lawyer’s calendar.  Great for the young lawyer!  But let’s not forget that the accused person lives with the consequences of the outcome of this criminal case, her permanent record for purposes of finding housing and work.  For the immigrant population, it has a further life-altering  consequence of affecting one’s ability to remain in the United States.

This is none of my interpreter business.  I am just there as a conduit.  Even so, I have to admit that as a human being and a law school dropout, it can be painful at times to see green, hurried, or sloppy lawyering.  It hurts when things are unfair and I cannot fix them.  I love fixing things.  Some issues are so huge and societal, that there will be no remedy in my lifetime, to my great and abiding sorrow.  On the micro-scale, however, small adjustments would give an individual the chance for a wholly different outcome if only the assigned lawyer would do one minor thing differently, such as take the time to follow up on the evidence, or negotiate one more time with the prosecutor.

When I see unfair things that seem easily remedied then it becomes harder for me to let them go.  Not while actually interpreting, because we are trained and hardened to deliver whatever message pops out of anyone’s mouth.  It is, after all, their message to utter, and ours simply to deliver, like a faithful postal carrier. I am talking about at home, where the mind roams free, and questions itself about the unsolvable, and sometimes makes itself ache with the weight and the pain of memories.  This is where my readers come in, to help me to carry this.  I won’t even burden you with any of the worst cases.  Let me show you a simple misdemeanor.   Technically a gross misdemeanor, but that is not relevant here.

Almost any offensive touching can be assault in the fourth degree.  It does not have to injure or even cause pain.  It is simply an unwanted touching that would be offensive to a reasonable person.  I discuss at length who a “reasonable person” is in a prior post at http://crossesrivers.com/jury-neutrality/ so I will not repeat myself.  The salient point here is that self-defense, i.e. using a reasonable amount of force to stop an assault on oneself, is allowed.  We are allowed to defend ourselves.  If our actions are reasonable and limited to trying to stop the harm against ourselves or others, we have not committed a crime.

If I get on the bus and out of the blue shove a fellow rider down, that is assault.  If the fellow rider is trying to pleasure himself by humping my hip and thigh on an overcrowded bus while staring aggressively into my face to see how I am handling it, then I would be allowed to shove him hard enough to get him off of me.  As a matter of fact, that has only happened to me in Latin America in countries with severe social unrest and lots and lots of angry armed males, and so I did not shove any of them.  My only method to try and preserve a shred of my dignity was to stare above their heads as if they did not exist – especially hard to do on one particular occasion, when the perpetrator was so eagerly thrusting that he broke my plastic water bottle inside my backpack as I tried to hold it between us in my best version of non-violent protest.

A woman I met who trained as a combat guerrillera told me that she actually stabbed a man on the bus when he sat next to her and tried rubbing her crotch.  He walked off holding the thin shaft, actually a stainless steel crochet hook, still impaled in his belly.  It made a small hole and hit no major organs, although it may have perforated his intestines.  He sat there completely silent and pale for a moment.  He then quietly got up and made his way to the exit, holding his hand around the end of the crochet hook.  She laughed with hearty glee as she recounted the story to me.  In that case, under the accepted definition, they were both guilty of assault, because she used more than legally reasonable force, to her deep and abiding satisfaction.

But I digress.  Let us return to the US, where a high, sometimes overwhelming level of law and order are said to abide.  A young man who works with a young woman has called the police to say that she slapped him across the face.  That, my friends, is a local version of assault in the fourth degree, with a maximum sentence of a year in jail and a 5000 dollar fine.  And so I sit in the courtroom with this young woman and an even younger lawyer.  This slap is assault.  Or is it assault?  I shouldn’t be asking this, as I am not the lawyer, and it is none of my business.  And of course I didn’t ask it, not even in my secret heart, while I professionally interpreted.  But the pesky old human ponderer in me is asking now, after the fact, and inviting you to ask yourself.  Let us look at some facts.

A young woman has worked in the same family restaurant for some years, since her teens.  She has advanced from busser to server to management.  The owner brings in a young male relative.  This horndog takes all possible opportunities of brushing up against her.  Whenever her back is turned in the kitchen, he will get right behind her, his front pressed against her back, as he ostensibly reaches around her to get something.  She has told him over and over, and told the owner, that he is being inappropriate and has to stop.  He continues.  He also refuses to follow her direction, and leaves some of his work for her to do.

One day, not many months after he is hired, it comes to a head.  He is extremely disrespectful, but did not touch her on this particular occasion.  They get into a yelling fight.  He yells something in his native language which she was familiar with – a cussing phrase.  I wrote it down phonetically as she remembered it and looked it up later out of curiosity, and I am sorry to report it has to do with the loins from which you have sprung – in other words, your mother’s private parts, along with some unpleasant qualities the insulting party professes that your mother’s private parts possess.  Which makes it even more odd that said speaker still apparently states a wish to copulate with your dear old mum.  In any case, he was up in her face and she reacted by slapping him across his.

The lawyer explains that a slap in legally assault.  But he is hurried and harried.  As a result, he does not ask any questions about the ongoing sexual harassment.  He does not follow up on the fact that the only police witness seems to be the so-called victim’s uncle.  He ignores that fact that she said she was afraid, and focuses on the fact that she was also angry.  He ignores that fact that the slapped man only called the police after she told his uncle she would call the police if this didn’t stop, and this owner asked her to please wait until tomorrow, when they could all meet and talk it through, sending her home mid-shift.  After which he told his dear foul-mouthed and groping nephew to call the police before she did and denounce her for assault, and provided the police both with a statement, and what he knew was an old address for her.  He then fired her without ever telling her that they had called the police.  The lawyer also brushed over the fact that there was some kind of a recording from the restaurant that may have vindicated her.

From the date of the incident, a year goes by and this woman has no idea that anyone has accused her of assault until she is pulled over for a bad tail light.  The police tells her there is a warrant out for her arrest.  She is terrified.  Brought to the country as a child, she is in the middle of getting her immigration paperwork put through for permanent residence.  She is also a student, finally enrolled in English as a Second Language classes so she can improve her living conditions.  If she gets a conviction for assault, that could stop her from getting naturalized later as a US citizen.  Who knows what affect it would have on her student status or her ability to stay in her apartment.  It could also cost her the job at a local daycare to have an assault conviction.  She comes to court right away, gets the warrant quashed, and gets a new lawyer assigned to help her sort this out.

He starts his advice by saying that he thinks maybe a man would be too embarrassed to come to court and say he was slapped by a woman, and then the city could not prove their case.  But it is a crime to slap someone and she just admitted to him that she did it, and that she was angry, so it could end up as a conviction.  There are some documents in the file, including some kind of recording made at the store, and it might show something good for her case, but then again it might show something good for the prosecutor,  so we just don’t know (because we haven’t looked at it!)

The prosecutor says if she just signs this one-year deal and follows all the rules she can “have it go away” (it will show as pending for the year, and as a dispositional continuance ending with a dismissal, best case scenario).  All she has to do is just stay out of trouble and pay some fines and then do some work for free and also have no contact with the crime victim, the man she slapped.   (So she will have a record of having a criminal no contact order against her, even after the case “goes away”).

If she does all this, the new lawyer explains, then the prosecutor will not take the case to trial.  After one year, it will be dismissed.  If she fails, the judge will read the police report and then decide if she is guilty or not, but she still wouldn’t have to go to trial.  (“Wouldn’t have to” meaning that by signing the paper, she permanently and irrevocably gives up her constitutional right to defend herself at trial, review the evidence, call and question witnesses, testify on her own behalf, appeal the conviction, etc.)

In the interpreter’s experience, assault perpetrators are most often required to do some kind of counseling, classes, or preventive treatment to minimize the chance of future outbursts.  In this case, the prosecutor was not asking for her to do anything like it.  Not even an evaluation, or a one-day workshop.  I cannot help but wonder if the prosecutor was just waiting for the lawyer to ask for an outright dismissal on such a weak year-old case, in the face of the overwhelmingly huge number of ongoing and escalating domestic violence situations with children involved.  And let me be perfectly clear – I do not think it is okay to slap someone.  So I am not defending the slap.  But I feel that the attorney should have tried to.

It seems like such a simple thing for a seasoned attorney to deal with.  I have witnessed it thousands of times.  They take the same simple steps, what I would call standard procedure, for a case like this.  Interview your new client.  Review the evidence.  Interview the victim.  Take this to prosecutor and in the case of assault 4, if self-defense holds water, request an immediate dismissal.  A couple hours of work, as the defender’s office even has investigators to carry out the first witness interview for them.

In this case, these steps have not been taken and will never be taken.  The accused tells the new lawyer that she doesn’t believe she was wrong to slap her coworker, in light of what he was doing, but she doesn’t want to get in any more trouble about it.  She doesn’t understand how the system works.  She just wants the case to go away.  She has never been in trouble and doesn’t know what to do.  What does he think she should do?

The lawyer tells her, “I think this is a good deal for you.”  And so without either of them ever looking at the evidence the government provided to see what would have been presented against her at trial, or anyone talking to the witness to see if he plans to testify, or contacting the alleged victim to see if he is even still in the country, she signs off on paperwork that waives her right to trial and allows the judge to convict her on the police report alone, if she is unable during the next year to fulfill all the obligations contained in the contract.

I hope she can fulfill all the obligations contained in her dispositional continuance.  I truly do.  I also truly wish that the system were set up so that all new lawyers and other workers would get the training, time and support they need so that they can fulfill all the obligations set forth in their own employment contracts.  And now I am going to let it go, and leave my dear readers to contemplate it.

 

 

 

PARTY OF THE FIRST PART, TO WIT. WHAT?!

True sentence in a lengthy deposition.  The kind of sentence this interpreter has to desconstruct in order to rebuild and then it still is so complex that the deponent (person being deposed) dares not make any answer, but simply asks for the question to be restated.  At which point the whole damn house of cards is rebuilt again by the same lawyer.  Because he has studied the case, and he knows exactly which tiny sliver of information he is trying to elicit, even if no one else does.

For those who are not in the field, a deposition is a chance for attorneys to question witnesses under oath and record their answers.  It gets transcribed and if the case goes to trial the attorney can use it against the witness to make them look like they are lying or contradicting themselves on the stand.  It is a great way for a lawyer to see how a witness will appear before a jury, and decide whether to take a case to trial.  For the person being deposed, it is a less than pleasant experience.  The questions are rarely straightforward and often a waste of time.  Here is one:

“Did you at any time, in talking with your coworkers, before leaving the office, by which I mean your headquarters, have any conversation, in which someone indicated, or verbalized, within your hearing, whether in speaking to you directly, or something that you simply overhead, that any workers (that is to say any of the union workers, referring to the union of which you are a member, or more specifically were a member of at the time in question) had been turned away from the same job, referring to the job for which you were sent to the on-site office in order to be interviewed, although I understand that you are positing that you were not in fact sent out on the job, or rather that you thought you were being sent out on the job but were subsequently turned away and denied the work?”

I was going to write an in-depth explanatory article about this issue but seriously that last question has made me too damned tired to elaborate on it any further. I rest my case on the above paragraph.

Party of the first part, to wit, this author, would like to apologize to the party of the second part, to wit, the reader, and most particularly to any party of the third part, i.e attorney, if this article seems, or appears, or gives the feeling of, or indicates, suggests, hints or portrays, that not all lawyers are great communicators.  Not all lawyers can get to the point.  Not all lawyers can say things in such a way that anyone can even begin to guess at what the hell they are trying to communicate.

If any member of the bar takes offense at this, the party of the first part suggests that if the shoe fits the party of the third part, said party should wear it.  To those for whom the shoe does not fit, said parties are invited not to take it personally.  And to those attorneys who are clear, concise, caring and wonderful communicators, bless your hearts.  You make our job a delight.

 

GOOD LAWYER BAD LAWYER

I hope that the day will come in which interpreter panels will be invited to continuing legal education  conferences in order to give communication training to lawyers.  Some of them really need it.  This might come across better as stand-up comedy, or a YouTube video, but as a semi-anonymous blog, I am going to write out the script of two fairly typical presentations of the same information.  I am not making this up or adding one single word to exaggerate the marked differences between these two extremes.  These are true to life and any court interpreter will recognize them both among the many versions and variations we are called upon to interpret.  The first version is spluttered out at around 150 words per minute with very few pauses, while the second is calmly and slowly presented at around 80 words a minute.  Guess which version the interpreters prefer.

“Hi! My name is Bad Lawyer.  We are going into hearing and I don’t have a lot of time.  Basically, we probably need to ask for a continuance and that means you have to waive your right to speedy.  Well not to speedy per se really but we have to extend the date to take you to trial.  Let me finish!  It’s a lot of information and I have to get through it.  Where was I?  Oh yeah, you have 60 days to go to trial if you are in custody, but you are not in custody so that means 90 days. That is if we do a continuance, well, then it would be longer.  I mean, they can take you to trial sooner but they aren’t going to because they have other cases.  Anyway I think I have the police report here – yeah, here it is.  I can read it to you – actually, let me first tell you what the prosecution if offering, or well let’s start with your options for this hearing.  I really think we have to continue as we just don’t have time to talk about the case now.  I have eleven cases on this afternoon and I don’t know how I’m going to finish them.  But it is up to you how to handle your case.  I cannot tell you what to do.  So you have to decide if you want a continuance or to plead guilty or how you want to proceed.  No, I cannot tell you!  You have to say.   I can read you the offer but I don’t want to take the time to do that right now if you already know you don’t want to plead guilty today. You could also set for trial but you shouldn’t really set for trial unless you are sure that is what you want because then the prosecutor will not want to settle once they prepare, so the offer will probably go away, but then again it might not go away, so we just don’t know.  And sometimes they add another charge if you don’t settle.  I think the offer will hold if we just continue today. You know you can plead guilty today if you want to, is what I’m saying, that is your right, but they are asking for some jail time and since ICE is doing a run-through at the jails they might put an immigration hold on you because they do that to in-custodies, even if it is not a deportable defense on the list of crimes of moral turpitude, which I don’t think this one is, I am pretty sure it’s not, but I should check before you plead, if you plead that is.  I am not saying you should plead, but that is up to you.  But even then it is still, I mean your crime, it can still be used as a discretionary bar to immigration benefits, but anyway I don’t think they will pick you up because I think our county is not honoring ICE holds.  But that can change at any time. So you need to understand that I cannot guarantee that you won’t be picked up and deported if you spend even one night in jail.  But we might be able to get electronic home monitoring instead, but then that costs a lot of money and the judge doesn’t have to approve it so you can still be sent to jail so I don’t know if you want to do that, and then you have to have a home phone too, except I think they just started letting some people use a cell phone, but not if they have alcohol monitoring, so I want to be really clear on this because I just don’t know so I am not going to make something up.  Oh! There is another option that is a dispo and you have to do a bunch of things like treatment and no new criminal law violations and change of address and a bunch of fines and fees and if you succeed they either lower or dismiss the charges after some period of time usually a year or two – but then if you miss just one thing in it the judge can just read the police report and find you guilty so that you waive your right to a trial if you take a deal like that.  Oh!  And they can order you to go to an eval and then you have to follow the recs even if it turns out they recommend two years of treatment and you have to pay for all that.  So if you fail on just any one things of it then the judge can call you in for a revocation hearing pull the whole deal and you have a conviction, or they might just give you some small punishment and keep you on the dispo, but the punishment could be a few days in jail, that we could try to convert to work crew or something, but we aren’t going to know how that plays out and so be sure you keep your address updated with the court in case they have to send you a notice.  But the deal the prosecutor is offering today is a straight guilty plea.  But anyway look this is taking way too much time –  it seems like you are still going back and forth on what you want so I would suggest that we are going to have to continue the hearing and you have to sign a speedy trial waiver and then they have 90 days from today to take you to trial, that is, unless we end up continuing again and that could happen because I have to consult with an immigration lawyer because there is case law on that so I have an obligation, but then this judge doesn’t like to give too many continuances so maybe we will go to trial within 90.  Or it will be within 90 of the last continuance date, but we don’t know when that is.  Oh! Here is the police report and I have to look to see if I have the video – we can view that in my office, but as far as testimony, I don’t know what witnesses they expect to have besides the police.  They don’t have to tell me about their witnesses unless we set for trial but then if no witnesses show up sometimes the case gets dismissed but we cannot know if the witnesses will show up and if it is a police they get paid extra to show up so they are gonna show up.  Unless something happens and they cannot show up.  Speaking of the police, I can read you the police report now but there isn’t really time so you need to tell me what you want to do today, for today’s hearing.  We really need to get in there – the judge is already calling for us and I don’t want her to get mad at me.  You said before you might want to plead guilty so is that what you want to do now that I have explained it all clearly, or do you want more time to think about it?  If you know what you want to do, maybe we should just do it, but you really shouldn’t plead until you have heard the main evidence so you know what your possible defenses could be, and then of course you know you have the right to go to trial – you can make the state prove each element of the crime against you beyond a reasonable doubt and you can just sit there – if they don’t prove the case they are supposed to acquit.  You don’t have to prove you are innocent; they have to prove you are guilty beyond a reasonable doubt.  But you never know what a jury is going to do, so it is a gamble.  You might just want to plead guilty, but I don’t know if there will be time for you to do a guilty plea today because they have to ask you a bunch of questions, too.  And then you would have to go to probation, maybe electronic home monitoring, and set up a payment plan, because you might be able to get a payment plan for court costs but they won’t let you do community service – you can ask to make payments over time – also I can do an indigency waiver and ask to have some of the fines waived but some cannot be waived and you have to swear under penalty of perjury that your income and expenses are what you say and then you can get checked up on so you need to be truthful.  So what do you want to do in today’s hearing?  We need to go! I cannot tell you what to do, my job is to just explain the options and then you have to decide.  If I take you in on a guilty plea and the judge asks you if you understand everything and you say no, that is a problem for me because I can lose my bar card.  I am signing off saying that I think you understand and I cannot say that if it is not true.  And plus I need to double-check on the immigration thing. You have to know what you are doing and it is up to you.  So what do you want to do in today’s hearing?  What do you mean you are confused and want me to decide?! I cannot decide for you!  I just told you what the law is and what your options are!  That is my job.  You need to try and really listen.  This is your case, and you have to decide.  So what do you want to do?  You can’t just stare at me like a deer in the headlights and tell me to do whatever I think best! I can’t think for you!  What part of ‘Your Decision’ don’t you understand?!  What do you want to do?  Should we do a continuance?  You need to decide!”

“Hello, my name is Good Lawyer and I will be representing you throughout your case.  Here is your interpreter, and everything we say is confidential.  This is your first hearing after being charged with a crime.  It is called a Pre-Trial Hearing.  You have three choices today, the same three choices we all have if accused of a crime.  One, you can ask to have the case set for trial.  As you are out of custody, they have to take you to trial within 90 days of the start of your case.   Two, you can plead guilty.  And I will tell you in a moment the offer the prosecutor is making you if you plead guilty today.  Third, you can ask for a continuance.  With a continuance, we the defense ask for more time to investigate and negotiate.  At the same time, we the defense give the government more time to take you to trial, if the case ends up going to trial.  So the new start date would be today and they would have 90 days from today to take you to trial. It is up to you but I suggest we continue.  I will read you the current offer but I don’t recommend that you take it today.  Because it is an important decision. Once we have more information and you come to my office and go over the police report and other evidence, you can make a more informed decision about how you wish to proceed.  There may be additional options, and I will also talk to you about potential immigration consequences.  Questions?”

Whew.