2003-07-24 - 5:55 p.m.
ENEMY OF THE PEOPLE, PART II
Today, I am not in jail. Most days being in jail would be so unlikely as to be unworthy of note, but not today. Today, for the first time ever, I needed my own lawyer when I appeared in court. Today was my turn to be an enemy of the people in the specific, rather than in the abstract. Today, it got personal. But somewhere in the middle of the afternoon today, the state blinked�and came to its senses----and I was home free. At least for now.
I am a public defender, a postconviction public defender. I defend people who not only have been accused of crimes but actually have been convicted of them. For me to do my job effectively, clients have to be able to talk to me. They have to be able to talk about what happened on the day of the crime they were convicted of. They have to be able to talk to me about what happened between them and their trial attorney. They have to be able to talk to me about what happened in court. Most of all, they have to be able to talk to me freely, as long as they are not talking about a crime they plan to commit or are currently committing. The law long ago acknowledged the importance of this need by recognizing a privilege: the attorney-client privilege. Ethical codes governing attorneys also acknowledged this need by strict prohibitions on revealing client confidences in most circumstances. Those codes govern my life and I am subject to discipline if I violate them.
The mess began, as such messes do, with a client who pled guilty. After pleading no contest, he began insisting that he had been pressured and that he had not known was he was doing. He was so upset with the lawyer his mother had exhausted her money to hire that he fired him immediately after the plea and accepted an attorney the Office of the Public Defender appointed for him for sentencing. Before sentencing, he unsuccessfully tried to withdraw his plea. After sentencing, I was appointed.
While some states require an immediate appeal, Wisconsin requires motions in the trial court before appeals in many circumstances. So, several months later, I filed a motion for the client in the trial court. I asked for him to be allowed to withdraw his plea and, if that portion of the motion was not granted, for re-sentencing. We lost the motion for plea withdrawal. We won the motion for re-sentencing and I handed off the client to a trial -level attorney appointed for him. That attorney again moved for plea withdrawal and the fun began.
At the outset, the prosecutor was upset the case was back. Prosecutors do not like it when cases come back. A few believe that surely any attorney that convinces the court to make any part of a case a do-over must be dangerous. At the very least, such a person must be watched. But even fewer of them ever take any action. Unfortunately for me, this prosecutor was not such a person.
When the court granted a hearing on the motion, the prosecutor saw his chance. Maybe it wasn�t personal but it certainly felt personal. Maybe he just saw an appealing shortcut. Why assess what happened at the time of the no contest plea just by using the transcripts, assessing the defendant�s testimony, and using the testimony of the attorney at the time of the plea. (The attorney at the time of the plea could testify because he was accused of being ineffective and making a claim of ineffectiveness waives attorney-client privilege.) �Maybe,� he thought. �This guy told his postconviction attorney something that might be useful to me.� Or maybe he did not think at all.
And then he issued the subpoena, the one that sought to have me testify not to events I was a part of but to what I was told by my client. Knowing about privilege and knowing about confidentiality, he went ahead and put me in a difficult situation. Worse, this same prosecutor did something like the issuance of this subpoena once before and our Wisconsin Supreme Court ruled that the client�s attorney should not have testified against him. In that case, the Wisconsin Supreme Court noted with disapproval that the state had subpoenaed the defense attorney and it had not even exhausted all other avenues. As for the poor subpoenaed lawyer, the Court said that she �should have continued to protect the attorney-client privilege in her testimony by declining to give her opinions.�
Sometimes knowledge makes things more difficult. Given this case, a more naive individual might assume that, of course, the trial court would quash the subpoena. Having spent enough time with trial (and other) judges who failed to grasp the law, particularly when the law seemed inconvenient, I took no refuge in that thought. I hoped, but I did not expect. And I knew that my duty, if it came to that, was to refuse to follow a trial court order if the court ordered me to testify. I hoped, but could not expect, that if it came to that, the trial court judge simply would grant enough time to appeal the refusal. But I knew that there was a small chance that the trial judge would just hold me in contempt.
So, I sat in the courtroom and held my breath. When we first got there, the trial court was not ready for us because it had other cases to hear. My lawyer talked to the prosecutor. The prosecutor did not budge. He did not even blink. He did, however, asked me how I was. �I�ve had been days,� I told him�and sat there with my arms folded and, according to another lawyer I know, with my jaw set. The most the prosecutor agreed to do was read the motion to quash and he left the courtroom for a bit.
An hour and a half later�a very long hour and a half later�the prosecutor came back. He looked at my lawyer. He looked at me. Then, he changed his mind. �I�m not agreeing I�m wrong,� he said (or something to that effect). �But I have decided that this case is not the one to pursue this issue in.� He released me from the subpoena and I was free to go.
Would I have gone to jail if necessary? Yes, I would. I am at heart a law-abiding person but sometimes who you are and what you stand for require saying �no,� recognizing that �no� has consequences. Sometimes right does not win, at least not in the short-run, and good deeds are punished.
But I�m still an enemy of the people, Ashcroft-style, and I�m still at large. And that�s a victory for the good guys.
LAST YEAR: Dreaming
TWO YEARS AGO: Man v. Raccoon �the Saga Continues
IN CASE YOU MISSED THEM:
Terrorism in a Small Town
Who Wants to Marry My Husband?
Bath Time
THEY
Finding My Ladder (Yuck!)
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Copyright 2006 by Ellen |
