Eleven Magic Words

When you’re a public defender, you’re pretty useless — until suddenly, you aren’t

I’m very pleased to publish the first piece by Singal-Minded’s new contributing writer, Yassine Meskhout. If you missed my announcement about bringing him on board, click here. Yassine’s articles will be behind the paywall, but I’m going to offer a partial preview of this one to all subscribers. Premium subscribers are the reason I’m able to continue publishing Singal-Minded, and the reason I’ve recently been able to expand this operation a bit with the additions of Yassine, my assistant editor Troy, and Natalie Ballard, a copy editor who just started working for me last week. If you aren’t a premium subscriber, please consider purchasing a subscription for yourself or for a friend (or enemy!):

As added incentive, I just posted another paywalled article, “On The Sad, Foreboding Tale Of J.D. Vance,” that you might like.

Thanks, and I hope you enjoy Yassine’s debut — I’m thrilled with how it turned out. -Jesse

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I am a public defender.

I am the vanguard of justice. I am the bulwark against tyranny. I am a hoot at dinner parties. I am this author’s Tinder bio. I am venerated by the new progressive zeitgeist. 

I am the corporeal manifestation of professional burnout. 

I am useless. So fucking useless.

There’s a dull reality to my job, which is that my clients have almost always done the thing they’re accused of doing. And usually the evidence against them is overwhelming — not even a close call. Yet I am duty-bound to poke, prod, and bluff my way into exaggerating a weakness with the government’s case. This usually doesn’t work. 

For example, one time a client was picked up for his sixth drunk-driving incident. He had been prohibited from driving eons ago, but that hadn’t stopped him before. In addition to DUI No. 6, he was charged with fleeing the scene after crashing into another car. The fleeing was ineffectual, if only for the fact that he literally imprinted his license plate number onto the other car¹. I saw the picture of the imprint, with a mirrored alphanumeric sequence perfectly legible on the metal body. Cops found his car billowing thick, black smoke in a parking lot in front of a nearby AutoZone. My client hadn’t gotten far from the scene: He was in the driver’s seat, having already passed out and pissed his pants.

So yeah, when I meet with clients I shrug a lot and give the “what-do-you-want-me-to-do?” look. I try to shift delicately into the gentle social worker persona and talk about damage control, which invariably means telling them that accepting a plea deal is the least bad option. This is one reason why almost everyone chooses to plead guilty. Ninety-four percent of state cases and 97% of federal cases are resolved by a plea deal, to be exact.

All this means I inhabit a different role than you may think based on TV shows or the occasional op-ed about the noble role of public defenders. I’m not a special agent who parachutes into the enemy hideout to orchestrate and negotiate an elaborate hostage release; I’m just the widget inspector. I’m there to sit at the assembly line with a checklist on a clipboard and make sure that my client’s rights are not violated too much throughout the process. And we literally used a checklist for DUI cases — six pages of potential rakes we could only pray a cop stepped on: Yes, yes, you have video of the guy swerving all over the road, his speech is as slurred as mud, and he has a small cargo ship’s worth of empty beer bottles in the back. BUT was the temperature of the liquid simulator solution utilized as the external standard for the breath sample machine measured by a thermometer which was properly certified by the state at the time? Hmmm?

It doesn’t happen often, but occasionally the cops do fuck up. Sometimes they don’t notice the thermometer certification lapsed two days prior, and of course you pounce on that. But this almost never happens, and it also underscores how fungible my own contributions are. Anyone plausibly qualified could replace me and it would not make a difference for the most part.

I’m borderline useless, in other words.

But there are terrifying exceptions to this rote monotony that forever haunt me. Like the one time I cast a spell in court with eleven magic words.

***

This happened early, when I was still a baby public defender. My client was an illegal immigrant² from Mexico. He was already on probation for one DUI when he was caught driving drunk a second time, seven years after the first. A judge released him from jail provided that his family fork over a small ransom for bail and that he agree to having his whereabouts monitored by an ankle bracelet. He would have to come back to address his probation issues in two weeks.

The ankle bracelet company sends me an update a few days later. My client had visited their office, informed them that he intended to flee the country because he was scared of jail, then underscored his statement with a flourish by taking out a knife and cutting off the ankle bracelet in front of them. In terms of the ratio between effort and impact, this was easily one of the simplest ways he could have irredeemably fucked himself over. But I did not have time to dwell on this. His actions meant I had one less client to worry about, since clearly he had decided to take his chances on the lam rather than in court.

Two weeks pass and I’m in court. Just a normal day: I review the sign-in sheet to see which defendants, of the cases I had prepped, did me the courtesy of showing up. Our caseloads aren’t always as bad as advertised because many of our clients don’t come to court, for reasons ranging from malicious (they’re reenacting a certain 1993 thriller starring Harrison Ford) to banal (the notice was lost in the mail). 

Then I see his name — Bracelet Cutter. I turn and scan the row of benches in the gallery and he’s quietly sitting in the back, apparently oblivious to the shitstorm of his own creation he has walked into.

I motion for him to step out in the hallway and my first question is “What the FUCK are you doing here?” He looks down, ashamed, and explains he realized that if he had fled, his family would have remained liable for the bond they put up to get him released. “I am here to take responsibility,” he says.

There was no need for me to pillory him any further. He panicked and fucked up, but that was done. Unfortunately, I was completely ill-prepared to handle his case, as I had reasonably assumed he had successfully peaced out of the country (and out of the justice system’s grasp) by now. We went in front of the judge and I announced that my client was turning himself in to jail so that I could better prepare for his case. We’d be back in court in another two weeks. 

***

In part because of those aforementioned stats on the frequency of guilty pleas, public defenders have garnered a reputation for being trial-averse, for pressuring clients to cop a plea just to keep the machine humming along. I think this reputation is ill-deserved. It’s completely counter to my own experience, at least, as few things are talked about with as much awed respect among one’s public-defender peers as the number of trials you have accumulated. It’s the functional equivalent of an attorney’s XP level.

Jury trials are sexy and cool and exciting, even despite the abysmal prospects for acquittal. But the understandable focus on dramatic moments can cause people to lose sight of potentially far more consequential proceedings that lack the luster and allure. Like probation hearings. 

I hate probation hearings so much.

The gravitational center of the criminal justice system is not the judge, but the prosecutor. Prosecutors can summon criminal charges from the aether or dispel them into nothingness, if they so choose. The Trial Tax is real, so if you want to avoid getting resolutely fucked at sentencing, your best bet is to play nice from the start. This is what makes accepting a plea deal so irresistible to so many clients. Judges say they ultimately decide — sure, whatever — but in practice, a prosecutor’s offer recommendation is virtually guaranteed to be adopted. Judges are busy, and the vast majority used to be prosecutors themselves. A current prosecutor’s blessing on a deal is generally all the oversight a judge cares to invest. If the deal recommends no jail time, you’ll get no jail time. This is what I told all my clients, and it was always true.

But there’s a caveat, in that many little- or no-jail deals are paired with a laundry list of legal obligations that are monitored by the courts for many years. In addition to not committing new crimes, the obligations can be as simple as attending a class about how drugs are bad. Courts enforce this scheme by imposing the statutory maximum amount of jail time (a year for most misdemeanors), but simultaneously suspending nearly all of it. Think of it as setting aside a bucket of jail days that can be doled out as needed if a client didn’t adhere to the agreement.