The Lawyer’s Critical Advocacy at First Appearances
Note from Ed Monahan: NAPD invited Maryland Law School Professor Doug Colbert to share his ideas and suggestions for public defenders’ and assigned counsel’s effective representation of indigent clients at their first appearance before a judicial officer. Doug founded and directs the Gideon Initiative for Representation at Pretrial, www.GideonIRAP.com, which partners law school clinics with public defenders and trains lawyers to present persuasive arguments. Doug has been a leader in pretrial justice reform and to the constitutional guarantee of early representation. We are pleased he is helping us. His introductory blog follows.
It truly is a pleasure to be invited to share ideas about ways that we can become more effective advocates for indigent and low-income clients’ when they first appear before a judicial officer. But before I go any further, you must be wondering what a law professor knows about early representation.
That is why I take a moment to explain that my passion for believing in counsel’s essential role at the outset comes from having spent my first 11 years after law school defending people’s freedom as a criminal defense lawyer with the NYC Legal Aid Society. There I witnessed the difference a lawyer often made for people with few financial resources at this early stage of prosecution. I listened to colleagues and private lawyers’ present brilliant and creative arguments that persuaded judges to order a defendant freed whom few would have given a chance. I came to appreciate the difference a good lawyer made and the many people who benefitted from a client’s release. Most important, I embraced freedom as my most precious human right and vowed to honor that right for others, too.
Of course, I came to learn what many of you are already familiar with, namely that jurisdictions function without lawyers for the accused poor person at first appearances and for lengthy periods thereafter. Other localities may assign a lawyer to perform the herculean task of representing too many people without adequate time or resources to prepare arguments.
That is why I find myself identifying pretrial injustice as a most important systemic deficiency in remedying states and local justice systems. Certainly I am aware of the draconian and rigid sentencing practices, including imposition of the death penalty, and the importance of re-entry work, where advocates have brought needed attention to the back-end of criminal prosecutions. But I prefer to shed light upon people first entering their local justice system, when defense lawyers are scarce and when people without financial resources are often denied their liberty. I offer a truism from that great philosopher, Yogi Berra, whose baseball wit is often cited for stating the obvious. When asked by a reporter after a close game whether the last inning was the most important moment,” Yogi shook his head. “Nah, it all begins at the beginning.”
That’s the way I view justice for the poor or low-income person accused of crime. Fair and equal justice – – or injustice – – begins at the beginning, where the judicial officer first decides liberty and orders a money bond that many defendants cannot afford, leading to their incarceration before trial. That’s where an accused learns whether the State provides legal representation or leaves the defendant alone to self-advocate. That’s where the bar can evaluate whether existing conditions impair or permit the defense lawyer’s effective advocacy and ability to influence a judicial determination.
Simply put, a defender’s zealous representation and use of law and available facts at first appearances can give the indigent, low-income defendant a decided advantage and a much better chance of regaining defendants’ liberty before trial, particularly for the more than nine out of 10 people typically charged with non-violent crimes.
You are likely familiar with the rest of the story. Once freed, your released client becomes an excellent candidate for a more favorable outcome. Frequently, you find charges dismissed, not prosecuted, or resolved without a plea of guilty; when guilty pleas occur, they often include non-jail sentences and reduced charges. Trial acquittals are more likely to occur. Defendants in jail usually fare worse and are deprived of freedom considerably longer.
I do not suggest that your zealous representation will succeed in obtaining release for every client. Detainees facing serious, violent felonies will likely remain in jail, as will defendants who repeatedly offend and fail to return to court.
Yet even when argument fails to persuade a judicial officer to order pretrial release, both the lawyer and the represented client are aware of the many benefits that typically result from early representation. Vigorous, committed advocacy creates an improved attorney-client relationship than what occurs when assigned counsel appears long after the defendant has remained in jail. A defender’s timely initial appearance often results in a better prepared lawyer, one who has investigated and evaluated the charges, interviewed witnesses, conducted research and developed a meaningful defense that makes the right to trial a viable option.
I bring this long-held belief in the lawyer’s critical importance at the outset of a criminal prosecution. This becomes a necessary first step for reform in jurisdictions that currently delay a defender’s arrival for periods ranging from 3 to 70 days. At the same time, where a lawyer is present within the first 24 or 48 hours, conditions vary in counsel’s effectiveness depending upon access to clients, gathering and verifying information, and managing a sizeable client docket at first appearance hearings. That’s where your participation on this blog can prove helpful.
Changing a local or statewide culture that relies on money bail or a practice of detention requires many lawyers engaging in pro-active, creative and persuasive advocacy. This blog seeks to provide the vehicle for exchanging ideas and strategies and for supporting challenges to unlawful bail rulings. We can learn and assist one another becoming the best advocate possible at clients’ “freedom hearings.” Here’s hoping we make maximum use of our network.
Note: Future blogs will allow us to talk about 1) the law favoring pretrial release; 2) interviewing techniques for gathering facts quickly; 3) verifying information; 4) developing a winning argument and successful theory; 5) defendants’ limited resources and the least onerous rule; 6) using the unsecured bond; 7) challenging improper or erroneous rulings. Please indicate other topics and issues you want included in the comments to this post here or on Facebook.