by Paul Butler
Supreme Court Justice Sonia Sotomayor, in a biting critique of the Court’s case law, outlined what happens next at the jail: “The police officer can finger you, swab DNA from the inside of your mouth, and force you to shower with a delousing agent, while you lift your tongue, hold out your arms, turn around, and lift your genitals. Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the ‘civil death’ of discrimination by employers, landlords, and who ever else conducts a background check.”12
Probably the most famous Supreme Court decision of all time is Miranda v Arizona.13 Everybody knows that when you get arrested, the police read you this warning:
1)You have the right to remain silent.
2)Anything you tell the police can be used against you in court.
3)You have the right to an attorney.
4)If you cannot afford an attorney, the government will provide one for you.
But these rights don’t work the way you think. Technically the police do not have to read you your Miranda warnings. To be precise, if they want to introduce any of your post-arrest statements in a trial, they are required to first give you the Miranda warnings. They usually do. But if they don’t give you the warnings, it’s not like that’s a get out of jail free card. It just means that they can’t use your statements in court. And, thanks to the Chokehold, there are several exceptions that allow un-Mirandized statements to be used.14
In any event, don’t talk. Let me put that more strongly. Shut the fuck up. Don’t admit to anything other than what can be found on your driver’s license. It does not matter if you are innocent. Every time they ask you a question about what happened say, “I invoke my right to a lawyer.”
This is the hardest rule to follow. When I was arrested, I did not follow it myself. I should have known better, but I thought, as an attorney, I could talk my way out of it. Plus I was innocent. So what happened after I made my case to my arresting officer? My lawyer ass was locked up and taken to the holding cell along with all the other black men who had been arrested that day.
When you assert your right to counsel, do not expect the cops to get you a lawyer. They never do that. Honestly if you said to the average police officer, get me an attorney, she would have no idea what to do. All Miranda requires is that if you invoke your right to counsel, the police have to leave you alone. That is why it is so important to claim your right to a lawyer. The Supreme Court has said that if you only invoke your right to silence, the police can badger you by, under certain circumstances, going back later to ask if you have changed your mind.15 But if you say you need a lawyer, the police aren’t supposed to say another word to you about your alleged crime.16
WHO SHOULD YOU CALL?
In many jurisdictions you don’t have a right to make a telephone call. That’s an urban myth. But at some point after you are booked—which means driven to the police station or courthouse, mug shot taken, fingerprinted, searched once again—the police usually let you make a call. To whom should you direct it?
If you already have a lawyer, or have the knowledge and financial resources to get a good one immediately, call that person. He or she can try to get the prosecutor to delay filing charges until the lawyer does a quick investigation of the case. This usually does not work, but it is worth a shot. But most people charged with crimes are poor and they do not have an attorney on retainer. In that case call your mother. Or your partner, sibling, or best friend. The person who is going to stop everything to address the mess your life has just become. They need to do what they can to try to get you out of jail as soon as possible. The longer you sit in jail, the worse your outcomes are likely to be.
Special shout-out to mothers, partners, siblings, and best friends: go back and read the section in chapter 2 about how many outstanding warrants there are. Those warrants are for people who failed to appear in court. If you had bailed that person out, you just lost your money. Don’t hock everything you own to raise bail for a person you don’t have confidence will actually show up in court. Yes, I know the guy who is locked up will be pissed. But if you think that there is a significant risk he will miss the court date, it makes not only his situation but also your own worse. The Chokehold is insidious. This is how it tears families apart.
When a person gets a call that someone they care about has been arrested and is locked up, the natural inclination is to go to the police station. This is a bad move. The cops are not going to let a visitor see the dude prior to his appearance in court. But if it’s a serious case, and the mother or girlfriend shows up at the station, a detective might try to interview her, asking questions like, “Did you see your son last night? Where did your boyfriend tell you he was going?” Just as anyone who has been arrested should never talk to the cops, anyone who is trying to help the guy should also not talk to the cops. Nothing good can come of it.
Here are the three things a person can do that are most helpful for someone who has just been arrested:
1)Call a lawyer right away; in addition to telling the lawyer what you know about the case, tell her every good thing you can think of about the person who has been arrested, including whether he has a job or is in school, is close to his family, attends church, and is active in the community. All of this will help the attorney try to get the guy released.
2)If there are witnesses to the arrest, put together a list of their names and contact information. Do not interview the witnesses yourself and never write down anything they have told you, because the prosecutor could try to subpoena any statements you have recorded. Just give the names of the witnesses to the defense attorney.
3)Show up at the courthouse for the “arraignment.” That’s the hearing where the formal charges are read and, by law, it has to happen within forty-eight hours of the arrest. The defendant will know you are there, but make sure the defense attorney knows who you are. You are there to provide moral support to your dude, and for the judge to see you when she is trying to decide whether to set bail or release the dude pending trial. The fact that somebody showed up for the defendant sometimes makes a difference to the judge.
PUBLIC DEFENDERS VERSUS PAY LAWYERS
Many people think of public defenders as inferior lawyers. I get a lot of emails and calls from people charged with serious crimes who think their case is going down because the judge appointed a public defender to represent them. They automatically assume a private attorney is better. Sometimes loved ones of people in this situation are willing to do whatever it takes—like mortgaging their house—to retain a pay lawyer. This is often a terrible idea.
Public defenders are often the best lawyers you could have. If you are a poor person charged with a felony in the District of Columbia, the Bronx, or San Francisco, pray that the judge appoints the public defender to represent you. Other jurisdictions where you are most likely better off with a public defender include Harlem, Oakland, Philadelphia, Miami, West Palm Beach, Seattle, and the states of New Hampshire and Colorado. And if you are charged with a federal crime, most federal public defender offices will provide you with top-notch representation.
There are some kinds of cases that public defenders have more experience with than any other lawyers, including serious felonies like homicide and robbery.
When I was a young lawyer, I worked at what is probably the best white-collar criminal defense firm in the country. If I was charged with tax evasion or making an illegal campaign contribution, I would hire that firm. But Mike Tyson, the former boxing champion, made a mistake when he retained that firm to defend him against rape charges. That’s not a crime that the attorneys there had much experience with defending.17 Tyson was convicted, and sentenced to six years in prison. It’s hard to know whether he would have had a different outcome if he had been represented by an attorney with the background of a public defender, but experience certainly makes lawyers better, and public defenders have more practice defending street and violent crime than lawyers at fancy law firms do.
/> Of course not every public defender is great. When they don’t do a good job, it is often because their offices don’t get the resources they need. In any event, most poor people are not represented by public defenders but rather by court-appointed lawyers. These are private attorneys who support themselves by taking these kinds of cases. Many are excellent lawyers who have the same kind of experience and local courthouse knowledge as public defenders.
But some of them are awful. If you get appointed one of the lousy ones, you are screwed. You have no choice in the lawyer the judge appoints. If you complain, it is extremely unlikely that the judge will appoint another attorney to represent you. Your options are limited. If the charges are serious, this is the time to consider hiring a pay lawyer. For many people charged with crimes, however, this is not a realistic option.
Hope that you live in one of the few places where appointed lawyers earn a decent wage. One study found that a 1 percentage point change in the wage gap between appointed attorneys and private lawyers reduces the probability of being found guilty by about 4 percentage points. Hope also that your appointed lawyer is not a rookie. The same study found that attorneys with just one more year of experience won sentences for their clients that were five months shorter.18
Let’s keep it real. If you have major concerns about your appointed lawyer, and you can somehow pull together the cash to pay an experienced lawyer big bucks to represent you, you should hire that lawyer. One study found that defendants represented by private lawyers received sentences that were three years shorter than those represented by public defenders.19 It may be that prosecutors offer better deals to those clients because they think private lawyers will spend more time on the defense than lawyers who mainly represent poor people.
If you are in a position to retain a lawyer, you should interview him or her just the way you would anyone else you are hiring to do important work for you. Make sure the person has experience in criminal cases, and that he or she knows their way around the courthouse where your case is being heard. Ask the attorney how long it takes her to return calls to clients, and how she keeps clients up to date about developments in their cases. Get the names of three people she has represented in criminal cases and call those people for a reference. If the attorney cops an attitude about any of this, that’s a good sign you should not hire him or her. These are the kinds of questions that rich people ask when they select a lawyer, and you should expect the same quality of service. Trust me, brother, there will be times when it will feel like everybody else in the courtroom assumes you are guilty, and most people outside the courtroom too, and you need a defense attorney who treats you with the respect you deserve.
Some brothers still suffer from the mind-set that it’s better to have a white lawyer, or a Jewish lawyer. The theory is that those attorneys are more connected, or better at coming up with defenses, or that judges and juries will like them better. This is white supremacist hogwash. There is no evidence to support the claim that lawyers of certain ethnicities or faiths get better outcomes for their clients. Of course you want an attorney who will be a good negotiator with the prosecutor and who has a proven track record. It’s just that being white or Jewish is not a good proxy for that skill set.
Be clear that I am not saying that race and gender don’t matter in the courtroom. Every chapter in this book suggests that they do matter, hugely. The point is that the Chokehold means the odds are against you, and you need a defense attorney who is going to fight like hell. It’s silly and counterproductive to make group-based assumptions about which lawyers will do so, based on their race or religion.
There is, however, one situation in which a lawyer’s race or gender might tip the scale in favor of hiring her. Depending on what crime you are charged with, you might need to prove to a jury that you are not a racist or sexist. A man who is prosecuted for sexual assault, for example, might be better off represented by a female defense attorney.20 A white person charged with a hate crime against an African American might select an African American lawyer. Even in these cases, gender and race should not be the only consideration. It’s just that if you are lucky enough to have a choice in who represents you—and most people charged with crimes are not—and you have a jury trial, your lawyer’s gender or race could help send the right message to the jury.
BE THAT NEEDY CLIENT
Jeff Adachi runs one of the best criminal defense firms in the country. He is the elected public defender in San Francisco. Adachi is a brave man. He took the Harvard implicit bias test, which demonstrated that he has unconscious prejudices against African Americans. He admits the same is probably true for the lawyers who work for him, as it is for most attorneys, and it might impact the way they represent black defendants.21 Adachi is taking steps to reduce the bias, like having his lawyers get to know their clients as people and asking themselves whether they would treat a case differently if the defendant were white.
But most lawyers are not so proactive about their prejudices. They don’t even know they have them. How can you make sure that your attorney is representing you the same way he would a white dude? This is not just an issue for appointed attorneys. Even pay lawyers sometimes don’t devote the necessary resources to your case.
You have to motivate your lawyer. You do this in two ways. First, you make sure the lawyer knows you as a person and hopefully likes you. Attorneys take an oath to represent all their clients zealously, but zeal is a difficult commodity to distribute in equal portions. If your attorney finds you rude, disrespectful, or irrational, she may not go to the mat for you the way you need her to. If, however, you show her photos of your children or discover you are both NBA fans, she will remember something about you other than what happened on one of the worst nights of your life.
Second, you must be demanding. If enrolling the attorney as your friend is the carrot, the stick is being vigilant about the specific things she is doing to give you the best representation at every stage of the process. Yes, it’s checking up on her, but your lawyer should be okay with it as long as you don’t come across like you think she is part of a conspiracy to lock you up. Just let her know you are extremely anxious, as anyone should be when their freedom is in the hands of a prosecutor or judge.
There are certain things that an excellent defense attorney should do. They are what criminal defense lawyers do for rich people. Unless there is some really good reason that she carefully explains, your lawyer should do these three things for you:
1)If you are being held in jail, your lawyer should file a motion for your release. She should ask the judge to dismiss the charges. Your lawyer will lose. Judges almost never drop charges that prosecutors have brought, in part because the “probable cause” legal standard for bringing charges is relatively low. But many judges will allow a hearing, which means that a police officer or other witness will have to testify under oath about the circumstances of your arrest. This gives you and your attorney information that you otherwise would not have about the strength of the prosecution’s case.22
2)Ask the prosecutor for “discovery” and “Brady.” “Discovery” is information about the case that the prosecution is required to turn over at some point before the trial. The rules and timetable vary depending on the jurisdiction, but it usually includes a list of the prosecution’s witnesses, any statements they have made, and police reports pertaining to the arrest. “Brady” is any evidence the police or prosecutors have that is favorable to you and relevant to whether you will be found guilty or not guilty. Under the law, the prosecution has an obligation to share this with you, but of course it’s up to them to decide whether it meets the criteria.23 As you can imagine, prosecutors tend to be stingy with what they disclose. And even when they illegally withhold evidence prosecutors are rarely sanctioned. As federal judge Alex Kozinski wrote in 2013, “Brady violations have reached epidemic proportions in recent years.”24 But your lawyer should still ask because if you have an ethical prosecutor, he might hand over evidence that
has the potential to set you free.
3)Hire an investigator. Otherwise the only version of the facts is going to come from you and the police. In the experiences of many people who have been charged with crimes, including me, the police lie. Some witnesses, especially so-called snitches who are cooperating with the prosecution in return for some favor, often lie as well.25 A good investigator can interview witnesses who might have another version of what happened. In my criminal case, my lawyer hired an investigator who was a former D.C. cop, and some officers were willing to talk to him even though they never would have talked to my lawyer.
WHAT TO TELL YOUR LAWYER
Your lawyer probably will not ask you if you are guilty. She does not need to know and she does not want to know. But she does have to be aware of what the evidence against you is. Based on what you tell her, and what the prosecution is required to reveal about its case, she will put together a defense.
She does not personally have to think you are innocent in order to defend you. What attorneys call “factual guilt” means that you committed the offense you are charged with. A good defense attorney does not much care if this is true. “Legal guilt” means that the prosecution proved, beyond a reasonable doubt, that you committed the offense. There is often a wide gap between factual guilt and legal guilt, and effective defense attorneys exploit that gap to win your case.26
At the same time, your attorney cannot allow you to testify in court to something that you have told her is not true. She risks losing her law license if she sponsors perjured testimony.27 So, for example, if you have previously told her that when you saw the police coming, you threw the weed out of the car window, you cannot, at trial, testify that you never had any weed, unless, for some reason, the facts have become clearer in your mind. If that is the case, let your lawyer know that what you told her at first was inaccurate. But even if you did toss the weed, this does not mean that you have to plead guilty. You can still go to trial. Your lawyer would probably advise you to exercise your Fifth Amendment right not to testify, and she would try to poke holes in the government’s case, for example by attacking the credibility of the police. This is the good part about the criminal justice system not being an actual search for truth, and you may as well make it work for you.