What to Look for and Expect from a Criminal Attorney
I’ll throw out this first option just because it’s available — you can always choose to represent yourself (a/k/a pro se’). While no one will fight harder for you, and the judge will allow some leeway, the rules of Court still need to be adhered to, and boy are they complicated. In fact, the only time this option makes any sense (IMHO) is if you’re a political prisoner seeking to make some kind of statement. Even if you’re merely a low-level participant choosing to accept a simple Plea, a court appointed lawyer will help you avoid any pitfalls.
The second option is the court appointed attorney, famously lauded in criminal justice folklore. And, while it’s undeniably noble that even the poorest in our country have a right to representation, the problem is, you typically get what you pay for. While there are some highly qualified and motivated exceptions, they are few and far in between. Public Defenders are brutally overburdened with case-loads double or triple that of an AUSA. Plus, they also earn considerably less pay, and generally graduate lower in their class from lower ranked schools. Courts will sometimes otherwise randomly appoint attorneys in private practice when the Public Defenders’ office is too busy (attorneys unlucky enough to be in the courtroom on another matter when the need arises). And, while those attorneys are duty bound to offer the same quality representation they would to a private client, they are generally annoyed at having the case foist upon them at low government rates. You get the picture. As a result, sometimes the process is little more than an elaborate play designed to appear like justice.
Most court appointed attorneys will pressure you to plead guilty regardless of what you want because it’s the easiest and quickest option. They also won’t give nearly the amount of time and attention you expect and certainly need. This is especially true because you’re invariably in pre-trial confinement at this point. How do I know that? Easy. If you can’t afford a lawyer, then you probably couldn’t afford bond either. That makes seeing you and gathering evidence and information necessary for your defense infinitely more complicated. Moreover, your attorney rightfully won’t discuss anything of substance over the phone since it’s all being recorded.
Listen, they know it’s not a fair process. They understand that you’re essentially guilty the moment you’re indicted. It’s a Fast-Food legal system — next. Their objective is to rotate the inventory, trying to minimize your exposure while moving the process along. And, for the most part, the Plea Agreement is your best route with a court appointed attorney.
However, there are certain scenarios when it’s best to go to trial, despite being hamstrung by a court appointed attorney. If you have an extensive criminal history, for example, and expect to receive a ridiculously long sentence no matter what. It might be worth rolling the dice. Similar logic applies to someone of advanced age who’s up against serious charges. Again, little to lose. In those circumstances you need to insist and fight for your attorney’s time and attention.
It won’t be easy. I’ve seen them break appointments at the last minute and use voicemail and secretaries to run interference. You, nonetheless, need to call non-stop and have your family do likewise. If you’re still not getting the representation you need, you can always write your judge directly and lay out the facts, telling her or him that you need another lawyer. Explain how infrequently your attorney has come to see you (keep a diary with time, date and length of meetings, including broken appointments) and any other way she or he is falling short (i.e. not following up on evidence and leads). My cellie Cleatus did just this, having only seen his lawyer three times for less than 15 minutes each, with his trial less than three weeks away. His request for a delay and appointment of new counsel was granted. Judges, you see, are reluctant to open themselves up to appeal. Remember, throughout all this, it’s your butt on the line. You must be aggressive.
Now, onto a hired attorney. The one you hire largely depends on how you answer the following two questions: (1) Are you adamant about going to trial? and, if so, (2) Do you have the resources to hire an attorney who can help you win at trial? Every single attorney will tell you she or he will do equally well for you whether you decide to go to trial or plead out. Maybe, perhaps, if you have a low-level drug case or accidentally killed some endangered species. Otherwise, most don’t have the balls or aren’t willing to invest their reputation in doing what it takes to confront the government head on. Those types are specialists and expensive, awfully expensive.
One other thing you’ll notice about lawyers is that they’re very attentive during the hiring process but from there on out potentially less so. It largely depends on how they’re paid. I chose a big firm that required a sizeable rolling retainer and charged by the hour, frequently wondering why I needed three partners in a room, telling me the exact same thing. My friend, on the other hand, hired counsel at a flat rate and found himself scrambling for attention. Our lives are on the line but for the lawyers it’s just business. Now, back to those two questions. If you don’t have the money to hire a real killer, then you may want to rethink your desire to go to trial.
So, which direction are you leaning? If you’re fully expecting to plead out, then it’s probably time to go cheap (unless your situation’s particularly complicated). Anything else is a complete waste of money. Almost any attorney will get you the same deal regardless. If you’re already represented since pre-indictment, just use the same attorney since she or he is already familiar with your case. It will cost both time and money to bring someone else up to speed. The important thing, though, is to lock your attorney into a set fee. While that instinctively limits the amount of time your attorney will want to put into the case, you really don’t need all that much from here on out anyway.
Even an attorney’s quoted flat fee for a plea might seem high but there’s actually a decent reason for that. Once retained, counsel is obligated to continue representing you even if you later change your mind and decide to go to trial. You may or may not have money to pay for that, but your attorney is stuck. One possible way around that is to agree to a lower fee now while placing an additional amount in escrow, with those funds immediately disbursable to the attorney if the case goes to trial. See if your attorney’s willing to go for that to save yourself some money.
If you’re almost certainly going to trial, then it’s time to fork up. You’ll be best served by an aggressive and contentious attorney (or group of attorneys) who specializes in cases like yours. Find someone with a proven track record, unburdened by concerns of playing nice with the AUSA for the sake of a long-term relationship, or worried about getting under a judge’s skin. You can expect to pay as much as $1 million, or even many times more, especially on document intensive cases. That amount will also vary depending on where your case is located. A case tried in New York is clearly more expensive than New Mexico. Regardless, no stake in life is greater than your liberty. Trust me, I know.
The final possibility, which happens more often than you’d think, is keeping both options open, just in case. In my case, for example, I scored out to LIFE and was captured overseas. I had no idea if I’d be offered a reasonable plea and feared I might be forced to go to trial. For that reason, I hired a big law firm that had both a tenacious fighter prepared to give it his all and a former local AUSA who could help facilitate a deal. In the end, I received a plea I could live with. The only downside is that it cost over a half million dollars, when I could have gotten the same result for one-fifth the price, or less. I was between a rock and a hard place and felt like that was the right choice. Who knows? You’ll find that sense of helplessness comes up a lot.
A note of caution. Be mindful of the advice you’re getting because your attorneys’ financial interests are not aligned with yours. It may be something as menial as lightly padding the bill with extra hours or giving you short shrift while you nervously count down the days to trial. Then again, sometimes it’s more insidious. Scott N. signed an excellent plea deal, only to have his attorneys begin strongly pressuring a brilliant “strategy” for going to trial. They pulled the plea and charged him $200,000. Shortly thereafter, the attorney brought in an expert who, incredibly enough, adamantly advised against going to trial. Scott then had to fight for another plea, now on worse terms, while his lawyers kept the entire 200 grand. Completely deplorable, and more common than you’d imagine.
One last point on attorneys. Regardless of who you choose, you’ll discover you’re often disappointed, unless you’re one of the lucky few who, by the grace of God, wins at trial or gets an exceptional plea deal. Attorneys are distracted by other cases and life in general as you try to get them focused on your particular plight. They continue with planned vacations, attend dinner parties and maintain personal social lives as you desperately reach out to discuss critical points. They will fall short of your expectations on many occasions until the day you’re sentenced, when they exit your life.
Lawrence Hartman is the author of (i) GUILTY TILL PROVEN INNOCENT: A Shocking Inside View Into America’s Failing Justice System, (ii) BLIND GREED: From Ivy League to International Fugitive, and (ii) BLIND JUSTICE: The Consequences of Greed. He has also been featured in articles on Forbes.com, including “The Life of a White-Collar Fugitive Not All That It’s Cracked Up To Be” and “A Voice From Prison Weighs In On Drug Addiction And A Solution.”