The Legal Equivalent Of A Potted Plant

What do you do when someone you’re tasked with helping out of a legal jam is trapped in a fantasy land in which he is not super-obviously guilty?

As a public defender I am, ostensibly, in the business of persuasion. Ultimately, nothing I do or say in the course of my work will matter if it is not, in some manner, directed toward convincing someone of something. Persuasion is a difficult skill to impart. Some people just have a supernatural knack for it. But unless you’re Muhammad, Donald J. Trump, or Anasûrimbor Kellhus, persuasion parlor tricks can get you only so far. And they’re probably not going to carry the day throughout an entire jury trial.

Mere mortals necessarily have to rely upon their natural ability to conjure up a persuasion simulation space — basically a theory of mind. This is what allows you to project a simulacra of your audience, like figurines in a diorama, and see what happens when you push, prod, and topple them with different arguments.

I’ve previously written about how defendants who choose to represent themselves (known as pro se) don’t necessarily tend to have the most… collected of temperaments. A well-functioning theory of mind is essential to everyday living, and the pro se defendants I’ve encountered tend to be deficient in this department.

When you first ask to represent yourself, the judge gives you a form to sign. The message it conveys basically amounts to some variant of “I recognize that I have a right to an attorney. I understand that an attorney can speak on my behalf. I understand that my attorney has specialized training in the field of criminal defense. I understand that I may not do a good job representing myself.” Et cetera, et cetera.

It’s a crystal clear warning intended to communicate a polite version of the question “Are you fucking sure you want to do this? Really? Are you seriously triple fucking sure you fucking want to waive this free fucking service? For real? Holy shit.” Courts are required to accept self-representation unless the defendant is somehow incompetent, and that’s a very low bar to clear.

As you may recall from my story about Randall, he could barely get through a simple cross-examination of a witness without causing some sort of courtroom uproar. This is just one reason why everyone involved hates dealing with pro se defendants so much. The last thing a judge wants is to get stuck endlessly discussing the minutiae of the appropriate template for pleadings and the like. And because of all that, and despite all the warnings given to pro se defendants about how they’re on their own, courts desperately try to make sure a lawyer is still somewhere in the picture by appointing — sometimes over the defendant’s objection — the bizarrely undefined role of “standby counsel.”

The cleanest description of standby counsel’s role is something akin to a full-fledged attorney squished into the shoes of a paralegal. The defendant can choose to consult them, or not. Even federal court rules struggle to describe the duties of the role, opting for the hopelessly aspirational “to protect the integrity and ensure the continuity of the judicial proceedings.”¹ The most refreshing candor on this issue describes the role as “only one rung higher on the evolutionary ladder than a potted plant.”

I was appointed to be that potted plant once.

The first case I had with Boris,² he was accused of shoplifting a machete from Ross (yes, the discount clothing store. Yes, they sell machetes. Yes, everyone asks) and drunkenly swinging it around in the parking lot before passing out on the ground. No one was around during the machete swinging, so he faced only a simple shoplifting misdemeanor.

Boris’s next case treaded similar ground. He once again shoplifted a cutting implement while he was shitfaced again (notice a pattern?) — kitchen shears, far less dramatic than a machete — but this time he ended up stabbing a bystander. The prosecutor’s theory on the felony assault was straightforwardly evident: He was drunk and randomly stabbed someone. Boris wanted to argue he was defending a friend from attack. He also wanted to pursue an insanity defense, based on the theory that he was suffering from severe alcohol withdrawal at the time of the shears attack. Plausible, given his history.

His medical records were a depressing read, an inexhaustible series of discharge notes with the exact same plotline — Boris found passed out from alcohol poisoning, varying only by time and location. Every week or two, same rerun.³ His history was severe enough that his brain was visibly smaller on successive medical scans — “cerebral volume loss” was the medically sterile terminology. The highest BAC they measured on him from a blood draw was a blistering 0.543%. Not a typo. The legal limit is 0.08%, and 0.40% is considered the threshold for severe risk of coma or death. I have no idea how he lived through this cycle.

Part of my job as the potted plant was to help him find expert witnesses he could use in his defense. A psychiatrist initially confirmed that, given his history, it was perfectly plausible that Boris could experience alcohol withdrawal severe enough to prompt a violently delirious fugue state. It seemed like the insanity defense might actually work.

That is, until we all saw the video from the scene.

The kitchen shears massacre took place on a busy street corner full of witnesses, and every one of the dozen or so responding police officers at the scene had a body camera running. Police body cams can certainly make law enforcement more transparent, but it can also paradoxically hinder accountability because the volume of footage can become too overwhelming to review. Up until very recently, prosecutors in states like New York routinely dumped a garbage pile of evidence on the eve of trial, leaving defense attorneys scrambling to sort through the haystack. If ten officers respond to a call and take about two hours to clear and investigate the scene, there are now twenty hours of footage (perfectly normal figures even for petty offenses). Granted, most of the footage is useless and duplicative, especially because police cameras start rolling after an incident has already taken place. So even if you get video footage ahead of time, it tends to sit there, neglected, because there are only so many hours in the day. Whatever hurdles defense attorneys face in reviewing evidence is magnified for pro se defendants held in jail. Boris could review the video only by scheduling a weekly session with the jail-owned laptop.

The psychiatrist watched one minute of the video and changed his mind completely about the alcohol “withdrawal” theory. “Boris was just drunk as fuck” was the new diagnosis. Intrigued, I watched more of the footage and brought back my findings to Boris.

When cops arrive at a scene, their first goal is to immediately fan out and get contact information from any eyewitnesses. After Boris’s attack, they found a friend of the victim who happened to have seen the whole thing. The friend also mentioned he had noticed Boris earlier standing at the corner, drinking beer and smoking a cigarette. He helpfully pointed, on camera, to the crushed beer cans on the pavement.

Boris interrupted me: “He said I was smoking a cigarette?” I could tell he was unhappy that the cops had a cooperating witness who would be used against him, but I had no idea why Boris perseverated on the cigarette issue. Turns out, according to Boris, that was the key to obliterating the witness’s credibility.

Whether as a potted plant or a real-life attorney, I try to remind my clients gently that I have a duty to be bluntly honest in my assessment of their case. It doesn’t help if I lie and put on a happy face when their prospects are actually quite bleak. Nevertheless, they have a tendency to shoot the messenger. So my other tactic for getting them to hear what I’m trying to tell them is to slightly deflect. I remind them that it doesn’t matter what I think or believe, and instead focus on persuading a judge or jury, because that’s ultimately whose decision matters. I tell them to keep in mind their theory of mind.

Boris had a plan to discredit the victim’s friend. He was going to subpoena the jail nurse that examined him after his arrest following the kitchen shears assault. The nurse, Boris insisted, would dutifully testify that he told her at intake that he never smoked cigarettes. In Boris’s mind, the fact that a nurse would say that he said that he never smoked cigarettes would be conclusive proof that the victim’s friend who claimed he saw Boris smoke cigarettes was totally lying. And if he was lying about Boris smoking cigarettes, that means he was lying about everything else related to the stabbing! Case closed.

If you have any familiarity with the rules of evidence, set aside for the moment that Boris was confusingly intending to introduce his own statement within hearsay (a hearsay calzone, if you will). I had to admire the sheer chutzpah of proudly standing on a dais of your own statements as though they were a monument to refutation. It’s true — the jail intake did have Boris listed as a nonsmoker (the un-smoking gun apparently), but the intake nurse also wrote down that Boris told her “I drank as much as I could today,” which naturally would torpedo his entire defense. Boris claimed the nurse was setting him up. Obviously. After all, she worked for the jail. Nevermind that he had heralded her as a key witness in his defense just thirty seconds prior.⁴ I shrugged and continued explaining my findings. Boris had shoplifted the kitchen shears used in the stabbing from a nearby grocery store — ripped them right out of the clamshell packaging inside the store. Cops had interviewed the store’s security guard and he told them, “I had recognized the guy from when he bought beer earlier that night.” Boris claimed the guard was lying, perhaps bribed by the cops. I explained to Boris that cops had interviewed his friend on the scene, and he casually told the cops how he and Boris were drinking beer all night. Nope, according to Boris, his friend had cognitive impairment and didn’t know what he was talking about.

I kept going and mentioned the coup de grâce. As soon as the cops arrived, the many eyewitnesses immediately pointed them to Boris, who was still on the scene. Moments later, Boris was on the ground surrounded by cops with guns drawn shouting “Show me your hands!” Boris couldn’t help but yell loudly — all on camera, of course —  to everyone within earshot:

“They took our beers! They took our beers!”

I gently explained to Boris — who was now seething — that between the crushed beer cans, the grocery store purchase, his friend’s admission, the admission to the jail nurse, and his own alcoholic cri de guerre, et cetera, et cetera — a jury would likely conclude that he was actually drunk that night, and not suffering from any kind of withdrawal. Blame the jury, not me.

He looked me right in the eyes and said, “Did you see me with a beer in my hand?”

Touché, Boris. Touché. He got me good.

There was never any video of Boris physically holding an alcoholic beverage container, that much is true. Somehow that allowed him to envision a mental model where twelve jurors were swayed by his overall argument, conveniently ignoring the pile of crushed beer cans (and other evidence) large enough to get landmark designation.

What I find particularly tragic about this whole situation is that Boris had a perfectly viable defense. His life was a sordid nightmare, with chronic homelessness and a steadily degrading existence on the street that is common to many of my clients. It was replete with abrupt and heinous acts of violence. He was the victim of countless assaults (as evidenced by his multitude of scars), and he also bore witness to friends getting murdered. Just unrelenting horror.

At a trial, the jury would be instructed to put themselves in Boris’s place, to determine whether he acted “reasonably” given the limitations he was burdened with. I had a plan to invite the jury members to appreciate fully how a life of unadulterated trauma would color their perception of the world. Given his history, it is perfectly reasonable for him to have been extra-vigilant in ambiguously threatening situations. That he stabbed an innocent bystander was undeniable, but whether or not it was a criminal act would be determined by the jury, after consideration of the facts and instruction on the standards of culpability. It mattered not whether he was drunk. His stubborn stand on the “alcohol withdrawal” hill was needlessly foolhardy.

But he was the boss. The same traumatic history that made him a pain in the ass to work with also gave him the courage to be his own attorney, despite clear deficiencies in the art of persuasion. There was nothing I could do to intervene. He had the right to drive his car over the cliff. He eventually fired me as his potted plant, much to my relief. He changed his mind constantly about representing himself on this case over the next couple of years and cycled through about a half-dozen attorneys in total before eventually being found guilty. He’ll spend several years wasting away in prison before going out and likely doing it again. Rote cycle repeats.

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Yassine Meskhout is a contributing writer at Singal-Minded. You can read more about him here. Questions? Comments? Plea deals? Email him at ymeskhout@gmail.com or me at singalminded@gmail.com. Image of a potted plant via Getty.

1. See how well this standby counsel’s facial expressions accomplish this goal.

2. Names have been changed to protect the guilty, because of course he was found guilty.

3. Boris represents an archetype well-known to emergency room physicians.

4. For similar chutzpah, recall how Donald Trump reacted to Gordon Sondland’s testimony during the 2019 impeachment investigation involving Ukraine. Sondland was apparently lying when he said something unfavorable to Trump, but telling the truth when he said something helpful for Trump. Convenient.