FACING THE CRIMINAL JUSTICE SYSTEM
When I meet a client, or a client's family member or friend, they are a combination of scared, incarcerated, restricted, and separated from and missing those they love. The incarcerated are oppressed by a physical cage filled with stale air that smells of everything horrible. Germs run rampant. Food is without taste or choice. In jail, illness and violence are common. If they've been in and out of the criminal justice system, they are sad. If they are new to it, they are frightened. Family members have heard horrible stories as well as fear in the voices of loved ones.
PUBLIC DEFENDERS AND PRIVATE COUNSEL
People who are new to the criminal justice system are shocked and angered by its apparent lack of fairness. Right from the start, the accused can retain private counsel or put faith in a Deputy Public Defender (a “DPD”). But because DPDs are provided at no expense, people incorrectly think they aren't competent. This misperception, and the DPD's time limitations, can lead to tension and distrust between the DPD and the client. But DPDs can be exceptionally-skilled, and they try over 90% of all trials, and they know the law and bench officers and prosecutors more so than most private counsel. Private attorneys get early access to the problem (which is immensely helpful), and this is prior to when DPDs are appointed (which only happens at arraignment). In many cases this is an invaluable advantage -- especially in drug cases, DUIs, sex crimes and anything that may end up in federal court. Witness statements can be locked in, inconsistencies can be timely ascertained, negotiations (if beneficial) can be made, and much-needed advice as to what to do or not do, or say or not say, can be given. Most importantly, the process and options can be explained -- returning power and control to the client.
BAIL
To get out of custody, someone frequently must pay a bail bondperson a horrid some of money that is usually just within the ability to pay off the accused and their friends and family. They will never see this money again. And if the client is already on probation, she will likely go back into custody at the next hearing, with her bail money gone (something rarely explained by a bondsmen). Moreover, several Bond companies engage in unlawful or predatory practices;.
At the Law Offices of Ian Wallach, PC, we work with the most respected, compassionate, and effective bondspersons in the country, who understand the system, are prepared for 1275.1 hearings (that show that funds were not from ill-gotten gains) and have no issues re-assuming bonds in the case where a client is late and a warrant is issued. Plus, our bondspersons explain every step of the bond process to the client. And they are fast, and we can frequently secure a release in a matter of hours.
THE FIRST MEETING WITH THE CLIENT
When I meet my clients, they have either been arrested or told they are going to court, and they know that they may be arrested. They are scared. They are justifiably angry. If they were recently in custody, they have experienced jail and never want to return. If they are in custody, they are tired and scared and sad and hungry and weak and likely ill. In or out, stress is interfering with every aspect of their life.
I show up and listen. I hear their version of events. I hear how they've been mistreated, by officers or inmates or complaining witnesses. I explain where they are in the process of criminal justice. I advise them on what to say and, more importantly, what not to. Working together, we create a chronology of the events so that we understand what transpired and, initially, what actions need to be taken immediately. Clients are relieved to know where they stand and that someone cares. They are relieved to be reminded that they are human.
TRIAL PREPARATION
During most of a trial, I work for my client. But during trial preparation, my clients work with me, as we dig for every bit of helpful information. The client will know the players. The streets that were crossed. Where cars were parked. What witnesses have had prior contact with the law. What has been said about them that is patently false. I need my assistants clients in as good shape as possible. Doctors can help with stress management. And a criminal action can function as a wakeup call for someone to address areas in their life that they've been avoiding -- such as relationships, finances, employment, exercise, and fulfillment.
Site visits help understand what's been accurately reported, and (more importantly) what has not been. Information about the life history of every potential witness is paramount in proving (or disproving) credibility and in building grounds for a lenient disposition or alternative sentencing.
The client, the investigation, and I develop a theme. What happened. Why it happened. Why the case should end and the client should go home unburdened, or, alternatively, why a less-restrictive disposition is appropriate.
PRE-TRIAL DISPOSITIONS
There usually comes a time when the client wants to plea. When people suffer that amount of stress, desires run a fascinating and horrible spectrum of pride to fear to shame to common-sense to indestructibility to total vulnerability. A well-considered plea may very well be in a client's best interests. But some lawyers wait for the vulnerability to appear and then settle the case. It's a clean escape. But not fair. Ten minutes later, the client's desire may likely change. If my client allows, we set our parameters before any hearing where a disposition will be offered, so no choices are made without ample consideration.
TRIAL
And then there's the trial. On one side is an advocate for punishment. The prosecutor gets to call themselves "the People" and sit alongside to the jury, which suggests that they are aligned. We are usually forced to sit far away, on the other side of the courtroom. My client is forced to sit even further away, next to the bailiff and his gun, and next to a steel door that leads to custody. I am not even allowed to refer to my client by their first name. The jury is set up to receive an inhuman presentation of life. So from the outset, my job is to educate the jury that the playing field should be even. Our jury must see that I am not just representing a "defendant", but an "accused" -- a person. A fellow human being that is entitled to every right that every juror shares. My job is to make sure that the jury never forgets the client is one of them, a member of their society, not someone to be harmed so that they can feel good. This is so even if the walked out of that metal door and wearing cotton slippers (in other words, in custody). Even if the client's past precludes them from telling their story (in which case, I do). The prosecutor's goal is to make a jury hate the defendant. Mine is to make the jury respect the client and the rights the client has that were vested by our forefathers.
Everyone who is part of a system accepts that it's flawed and is open to learning that it can be improved. People are quick to assume that there is a filter that keeps weak cases from being tried. Jurors are empowered when they learn that the filter is actually the jurors themselves. Juries are the great protector. My job is to remind them of that.
If the matter proceeds to trial, then the events, the witnesses, and I tell a story (if there is one to tell), and question the story told by the prosecutor. My client's story will be tangible and relatable. The jury will see images and places and people and ask the unanswered questions we've identified. At the end of the day, if I've done my job right, my client will know that he was protected. Potential outcomes will have been explained. The client has seen that this imperfect system – which at one time seemed only punitive -- is also protective.
DEFECTS IN OUR CRIMINAL JUSTICE SYSTEM
Personally, I find our system of justice offensive. We use the word “rehabilitation” as a mask to cover our systemic issue of sanctioned torture. There are no efforts to meaningfully “rehabilitate” anyone anywhere. The concept that punishment can be a precursor to assistance is fundamentally flawed – who would be open to assistance from the hand that hurt them? Our nation collectively uses someone's status as a convict or accused to justify causing that person pain. And the national desire is not to “rehabilitate” a defendant, it is to harm them. And profit from them. We spend between 2 and 8 times more to incarcerate a juvenile than it would cost to send them to our finest private school.
Take an action movie (the formula is usually the same) -- something bad happens to a capable good person, and this even then justifies his killing or beating of those connected to the harm he was caused. The hero can do atrocious wrongs to people he has never met before, in the name of revenge (or, even worse, in the misapplied name of “justice”). Miriam Webster's defines Justice as “the process or result of using laws to fairly judge and punish crimes and criminals” – but there is no connection between a reasonable response to misconduct and prolonged sentences (which have been shown to only increase the chance of recidivism), incarceration for non-violent offenders (and imprisonment is even more disturbing), same-sex incarceration (done in the name of safety, but without asking people if they would rather be incarcerated in a same-sex or mixed-sex prison), and the death penalty. Our nation purports to be the “land of the free”, though we incarcerate a higher percentage of our population than any other nation in the world. “Justice” has become the antonym of “freedom.” Retribution holds no position in a world of true justice. In the words of Martin Luthor King, Jr., “an eye for an eye leaves everybody blind.”
WHAT'S TO COME AND WHAT I DO
Our system of justice is destined to change. One day, our society will be sufficiently enlightened to properly respond to criminal accusations with thoughtfulness, compassion, understanding, fiscal common-sense, and intelligence. One day our “corrections” system will actually become rehabilitative. But until that day arrives, I will do everything in my power to keep that system away from those who have trusted me with their protection.