Your Job vs. My Livelihood

Thursday Oct. 1st was an epic failure of a day. Not sure if I mentioned this on twitter or facebook, but the abysmal economy has been brutal to the NYC budget. One of the ways that I have experienced our anemic budget firsthand is in the production of my incarcerated clients from Rikers Island. If a judge sets bail, my client will have to be bused by Dept. of Corrections for each court appearance. I would prefer for bail NOT to be set so that my client doesn’t feel pressured to take a plea. The longer someone remains incarcerated, the less rational they are. A life of slavery leads one to make irrational decisions.

Now back to the budget… Dept of Corrections has decided that in the interest of saving money, that they will bus people down to Manhattan first, then Brooklyn, then the Bronx, followed by Staten Island, THEN Queens.  Does that make any sense?! NO – especially not when Rikers Island actually IS between the Bronx and Queens.  So it would basically be quicker for inmates to be WALKED to Queens criminal court.

On October 1, 2009 I had one case on the court calendar.  This case was on for us to have a suppression hearing.  My client is being charged with possession of drugs, and so at a suppression hearing, I can challenge the constitutionality of the police officer’s interaction with my client during his arrest.  The suppression hearing is where I learn the most about the strength of the prosecutor’s case.  And when it surfaces that the cop did something shady, but not shady enough to be unconstitutional, the judge usually offers my client a much better plea deal.  My point in bringing all this up is to point out why it is so essential for my client to be PRESENT while all of this is going on.  Obviously I can’t take a plea on my client’s behalf without him being there.  Also, the best way for me to challenge the police officer’s testimony is to have the only other person who was present at the crime scene, there with me to tell me his/her version of the story.

DO YOU KNOW THAT CORRECTIONS DIDN’T BRING MY CLIENT TO COURT UNTIL 4PM?!?!?!! Court goes down at 5pm.  I got to court at 10am, requested my client’s appearance, and it took 6hours for him to get before a judge.  Meanwhile, motions on other cases didn’t get written, research on new developments in NY Laws was ignored, phone calls weren’t made, my voice mail piled up, I didn’t eat lunch.  Needless to say, we did not have the hearing, I performed no legal work on 10/1/2009 – just played brickbreaker on my BB, annoyed my 600 or so followers on twitter with obnoxious tweets, and waited waited waited to get on the record only for the judge to say “Sorry counselor, we don’t have enough time to do your hearing”. As I was walking out of the courthouse, one of the court officers asked me “counselor, why didn’t you just waive his appearance & kick the case over til next week? Your client isn’t going anywhere – he’s sitting in jail.” To which I replied, “I’m sure my client wouldn’t approve of that type of lawyering Officer, but thanks for the tip.”

On my way back to the office at 4:15p, I ran into one of the prosecutors I am friendly with and fumed to him for a bit about how upset I was to have wasted my day and that now I will have to be at work until well after 8pm to finish all the work I had on my desk.  He replied “You don’t have to do any of that crap! Just go home.  Will you get fired if you don’t write those motions and ignore those calls? Just tell your clients you got shit to do.  It’s not like they’re paying you.”

And THAT right there is the problem… The stakes for lawyers in the criminal defense practice are not high enough.  Like he said, I won’t get fired for ignoring my clients’ phone calls and refusing to write motions.  If I had decided NOT to wait for my client to be brought to court, what would be my penalty?  Probably nothing at all.  I once had a client’s appearance to court waived three times just because the judge in that court part did not feel like keeping the part open past 1pm for Dept of Corrections to bring him.  By the time his case got resolved (dismissal – thankfully), he wanted to explore suing me because he thought I was the one telling the court not to bring him before the judge.  We criminal defense attorneys could technically be sued for malpractice under various grounds, however no one seems to be interested in listening unless money is involved.  The Rules of Professional Responsibility in NY were recently amended to add more bite (i.e., more ways to hold a lawyer to her/his ethical responsibilities) and I am strongly in support of these amendments.  If you look at the rules of conduct for prosecutors, they have even more leeway for misconduct because they don’t have clients… WHO GON CHECK THEM?? no one.  By the time anyone is paying attention to prosecutorial misconduct, big type constitutional violations are taking place. Thankfully the prosecutors I interact with seem to have good intentions.

Meanwhile, I stand to lose my license to practice if one of my clients is successful at pointing out how egregious my behavior is.  I must say, I see nothing wrong with that.  IF you decide that it is your calling to be an advocate for your client, then this means that you must be willing to be a hired gun.  And if it turns 0ut the hired gun is illegally/unethically/unjustly placing their interests above those of their clients, then they should lose their license to practice.  I want and appreciate that fire on my back to keep my clients’ interest first.

Call me trigger dammit, I am an advocate and proud of it.