What Do You Do When A Client Scares You?
Thankfully this situation is rare, but one case in particular recently came to mind.
I generally don’t get scared of clients. Whatever the crimes my clients are charged with, I give everybody the benefit of the doubt. If they’re nice to me, I’m nice to them. No matter the offense, there’s a shred of humanity in everyone. In fact, I actually like most of my clients. Not that it’s common for me to invite them out for a coffee (our worlds are too different), but lawyers I know have hired the people they’ve gotten out of jail, and even married them.
Sometimes, however, a client stands out as truly scary. My code of ethics still requires I represent him to the best of my abilities, but it can be tough when I’m worried about how close he is to me at counsel table. Thankfully this situation is rare, but one case in particular recently came to mind.
I was assigned to a man being prosecuted for kidnapping. He was already being prosecuted in a different county for murder. The People wanted to have him put in a lineup on my case and, although he was in jail, he simply refused to go. The lineup was unnecessary. There already was a ton of evidence — DNA, video — but the prosecutor insisted and obtained what’s called a “force order” from a judge to compel the defendant’s attendance. A force order lets police use whatever force is necessary to get the defendant out of the holding cell and into the lineup room.
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Nobody wants this — not me, not the defendant, and not even the detectives. Somebody always gets hurt, usually the defendant. Worse yet, if he hurt the cops in the process of getting to the lineup, he’d be charged with yet another crime, Assault in the First Degree against a police officer.
It was my job to see if I could persuade the guy to go peaceably. The problem was I hadn’t yet met him. I’d been assigned just to get him to the lineup and had no idea what he was like. I’d read about his alleged crime in the media, and it was ugly — rape, running down the street after the naked victim as she tried to escape, then shooting her. I called the lawyer on that case, a seasoned public defender, who told me, “This guy is bad, one of the worst I’ve seen. Don’t get too close to him.” Naturally, when I got to the 12th floor bridge at 100 Centre to meet him, I was a bit nervous.
First thing I learned was that the defendant would not see me in the designated area where attorneys meet their clients (a room where defendants sit on one side of a plexiglass partition with their lawyers on the other). He’d refused to come out of his pen. Corrections then permitted me to go to that back pen in order to speak to him, something I’d never seen Corrections do before.
I was led through a labyrinth of cement hallways and metal cells with locks the size of fists into a back, corner space. There, sitting on the back bench, was my client. I was expecting to see Hannibal Lechter, but he was only a guy, muscled from his years of working out in prison, still and hunched over. His feet were joined loosely by a chain, but his hands were free of handcuffs and the orange muffs that usually cover the fists of inmates suspected of being dangerous.
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He sized me up silently, as I did him. He suffered strabismus, the eye disorder when one eye looks the opposite direction of the other. It was difficult to know where to focus my attention. I introduced myself and asked how he was. I noticed razor-thin scars, tiny etchings, covering the insides of his forearms. I began to read the lineup order to him, explaining why the prosecutor believed she had probable cause to force him to attend. He sat silently. He would not engage in conversation as I asked him about his age, background, his favorite sports team — anything to break the ice.
Building trust with a criminal defendant takes time, especially when you’re appointed to the case as opposed to retained. Many defendants see you merely as an extension of the D.A.s office or the court itself. I didn’t expect him to be open or forthcoming this first time, but I had at least hoped for some dialogue. Finally, as he looked toward where I was stood, he muttered, “I won’t cooperate with the police. They can go whatever they’re gonna do.”
I pride myself in being able to deal with “difficult” clients and have been called in by judges to do just that, so I approached the bars to speak to him further. I wanted to leave my card and let him know I cared. Within a split second, he jumped off the bench and moved quickly toward me. The swiftness of the change in his demeanor, and the speed with which he moved, startled me. I jumped back from the gate and took a breath. It was a move I couldn’t take back. Probably unfair, but also instinctive.
He reached his hands through the bars. “What, did you think I was gonna strangle you?”
“I had no idea what you were going to do,” I responded. “I don’t know you, and you don’t know me. It was a reaction, that’s all.” I didn’t say I’m sorry, although I added lamely, “I’ve been doing this a long time. I’ve got kids.”
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His response: “How can you be my lawyer if you’re too afraid to even speak to me?”
Good point. Not a good way to start a relationship. If I had been a 6’2” bruiser of a lawyer, I might have stood my ground, but maybe not. I don’t know if he’d intentionally tried to scare me or if he’d meant nothing by his quick approach. I’ll never know. I simply reacted.
He stuck to his refusal to be part of the lineup and I dutifully gave the news to the detectives, waiting in the hallway, court order in hand.
The lead detective — a well-dressed guy out of central casting, supervising two younger detectives — spoke. “You know what, f**k it. The D.A. doesn’t really need this lineup anyway. I’m not risking my people getting hurt.” He walked away. He didn’t want to tangle with my client any more than I did. Of course he couldn’t say that to the prosecutor. When I heard later from the prosecutor, she said she’d changed her mind about the lineup. It wasn’t really necessary after all. Apparently the detective had told her the defendant had threatened to spit on them and not knowing his medical condition, nobody wanted to get roiled in that.
On the next court date, the defendant asked for a new lawyer. I stuck with the case for a while, but eventually conceded we weren’t a good fit. After that kind of beginning, it’s hard to pick up the pieces.
He’s since had three lawyers, and I hear is now applying to represent himself.
Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached by email at tonimessinalw@gmail.com or tonimessinalaw.com, and you can also follow her on Twitter: @tonitamess.
