Do the Crime, Do the Time

David, a public defender, still thinks about a confrontation with a rival attorney from years ago. 

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When We Disagree-Public Defender

[00:00:00] When We Disagree is a show about arguments. How we have them, why we have them, and their impact on our relationships and ourselves. Argument is puzzling. I don't mean the experience of arguing, although that can be puzzling as well. I mean the meaning of the word itself. What are we talking about when we talk about arguments?

In an influential essay in the 1970s, the communications scholar Daniel O'Keefe helpfully separated what he called Argument 1 from Argument 2. Argument 1 is a claim, a conclusion one person would like another to accept. Crime is increasing. Pistachio ice cream is gross. Michael Jordan is the greatest basketball player of all time.

The Supreme Court shouldn't overturn Griswold versus Connecticut. We can evaluate these conclusions in isolation, separated from any speaker or writer. We can look at their specificity, their wording, their evidence. We can look at Jordan's titles, his points scored, et cetera, [00:01:00] and stack them up against other famous basketball players.

Argument two, however, is social. It takes two or more people. We had an argument. We were in an argument over household chores. When we evaluate argument two, we can look at moves and counter moves, tones, differences in power and outcomes. In sum, there are lots of argument ones. In an argument too, but there is no argument to an argument.

One I'm Michael Lee, professor of communication and director of the civility initiative at the college of Charleston. Today's guest is David, a lawyer in Kansas city. David, tell us an argument story. Thanks, Michael. Um, yeah, so I'm a lawyer, but more specifically, I spent most of my career as a public defender.

Briefly, what that means is I represent people who can't afford an attorney who are charged with criminal offenses. Some years ago, I had a client who I was appointed to represent. [00:02:00] He was dealing with a probation violation and also a charge for escape from custody. People hear escape, they think it's really exciting, but actually this person was in a, like, halfway house residential re entry type program and left with permission, and then didn't go back.

Don't imagine Steve McQueen or anything like that. But, what happened to this This person was they were arrested in a different jurisdiction for another probation violation. This is actually fairly common for folks with drug problems, and this person went to prison on that violation. And while they were there, they did everything that you might imagine that you would hope someone do.

After they're ordered to serve a sentence, they entered into a intensive drug treatment program. They took a bunch of classes on like decision making, that kind of thing. [00:03:00] And by the time I got this person on those cases, the case was well over a year old. And in a lot of ways, the client was in a completely different position.

So when I met the client, the client was, um, advocating for, Hey, I don't think I should have to go serve another prison sentence. I've already done that. And I've already gotten everything I could get out of it. And so this is, um, a person whose life had changed in a fairly dramatic way, and, and they felt like they should be treated that way in the process, so, um, they already actually had a lot of the information I needed to advocate for them, they had certificates, they had letters of support.

Saying what a great job they did in the program and so based on that I gathered whatever else I could and I went to advocate on their behalf that they shouldn't have to serve a sentence. I understand what they did well over a year ago was wrong, but they've already served a sentence. They've already rehabilitated.

Let's give this person [00:04:00] a chance. So you're probably wondering where the, uh, the argument is is so the prosecutor on the case, um, did not agree with my client or my outlook that this was a person who did not need to go to prison. I tried my best to advocate to the prosecutor to say, hey, look. This is a changed person.

I understand your default position on these would probably be, hey. They were in a halfway house program. They didn't take advantage of that program. Why should I give them another opportunity under some kind of supervision, but you know, here's why it's different. Here's all the letters of support. Here's all the completions of program certificates, all that.

And when we showed up for the 1st hearing, which was the probation revocation. As I mentioned, this person was also facing a new charge for escape. The prosecutor said to me very explicitly. If you do anything other than admit the violations and [00:05:00] agree to go to prison, then I will give you absolutely no plea on the escape case.

I'll do nothing to reduce the charge or give you a reduced sentence. I'm planting my flag. And I explain that to my client. My client did not change their mind. They still wanted to go forward and ask for probation, which honestly I thought was reasonable. And so we went into the first appearance in front of the judge and I put on not even that lengthy of a presentation, maybe 10 or 15 minutes.

Put on the certificates, let the client talk a little bit about all these changes that this person had made in their life. Prosecutor spoke for maybe two or three minutes. Hey, this person escaped. They didn't do the program they were supposed to do. They've had chances at probation before. You need to send this person to prison.

No witnesses were called. No evidence was introduced. It was a brief. You know, 20 minute hearing and in the end, the judge agreed with the prosecutor and, um, set my client to serve a sentence, which [00:06:00] obviously we were disappointed in. I waited a little while because I didn't feel like it was good strategy to then approach the prosecutor and say, okay, I'm ready for a plea on the escape.

But after a few weeks, I went and approached the prosecutor for a plea. And the prosecutor who had apparently a very good memory said, hey, I told you before court absolutely no, please. And I tried to explain, hey, you know, I understand why someone might say that you've got to be consistent in your approach, but, you know, you didn't have to cross examine any witnesses.

You didn't have to do a lot of preparation. You stood up in court and spoke for a few minutes. Um, you know, I thought we had a reasonable point to make and certainly to. Have continue my good relationship with my client, I would need to advocate for them this way. And, um, prosecutor said, hey, I said, no, the answer is no.

So. You know, when you approached people for the podcast, you said, what is an argument that has stuck with you for a long time? You know, I don't know whether this is a traditional example of civility because [00:07:00] this prosecutor was, was polite. Um, didn't yell at me, didn't get angry at me, was calm. Um, so maybe some people think civility is about that.

But this argument has stuck with me for, this case is quite old now, I think maybe even more than a decade. Because it just struck me as being very unreasonable, and I've thought a lot about, like, where the prosecutor's head was for this case, and why they felt they had to take this position, which, which I found to be unreasonable, whether they were sending a message to me or something, or, or to a client.

I can tell you, it didn't change how I practiced or handled myself, but this prosecutor felt like that was quite important. So that was the argument. It stuck with me for a long time, because I just always wondered what was going through their head. And, um. There you go. Did you have a relationship with this prosecutor independent of this case?

In other words, said you had dealings with this prosecutor on multiple cases? Yeah, that's a good question. So part of being a public defender that [00:08:00] I think is actually a good thing is you usually, at least where I worked, practice just in one jurisdiction. And so every case I had was in this jurisdiction.

I knew every prosecutor. We had multiple cases together. We dealt with them on a, you know, if not weekly basis than frequent basis. And so I would have had multiple cases with this person. So yeah, maybe their strategy was, hey, I can't let David think he can, um, you know, run over me if I say something. I have to stick with it.

I have to be consistent. And maybe that was the trade off for what I felt was very unreasonable in the circumstance. I'm hearing kind of a multi layered argument which makes it so ripe to be remembered, to be memorable to you over a course of time. If I'm reading it right and hearing you right, it sounds like it's over the merits of sentencing.

Perhaps an even broader question about what is a just [00:09:00] outcome, both in generally and for this particular defendant. It could also be over professional conduct and what do you owe one another in terms of your conduct and behavior as fellow attorneys. And then finally, over what is reasonable. What is a reasonable, both stance to take and outcome to pursue in this case.

Of those. Which sticks with you the most? I think just the relationship between the lawyers probably sticks with me the most because I mean, we're always going to disagree with a prosecutor about what a just outcome is Maybe not always but in the vast majority of cases. I felt like I approached from a very different angle and I learned as even as a younger attorney that sometimes just their mindset and the whole thing was so different than mine that maybe we couldn't bridge that gap but I never felt like it was productive to be, you [00:10:00] know, rude or in someone's face.

And in this case, I didn't try to do that. In fact, you know, when I followed up with the prosecutor, I approached it as, you know, Hey, let's just work this case out. This isn't the most serious escape ever. They left with permission, just didn't come back, and they weren't even gone that long before they got arrested.

And, you know, there's a bunch of mitigating circumstances here. I, you know, I just, I always want to get in the head of the prosecutor because I'm trying to negotiate good outcomes for clients. And the majority of the cases, very few cases go to trial anymore. Unfortunately, and I. I want to know where the prosecutor's coming from and so that's why I think about this a lot is, I think, do prosecutors need to have this?

Hey, look, I said it, I'm going to stick with it. Or maybe there's a, hey, you know what? In the moment I was thinking that, but. Given further reflection, you know, this isn't that serious of a case and, you know, I'll knock a few months off your client's sentence for that good conduct and good programming that they did and all that.

And [00:11:00] so, um, you know, I haven't had a lot of situations where I was in, like, a screaming match with a prosecutor, we'd go into court, we'd argue, advocate strongly, maybe even aggressively cross examine witnesses, and then, you know, Keep a cordial relationship because that's the professional relationship you have to have.

That's another thing that's interesting about this, this distinction you're drawing between kind of a civil method, a civil procedure, versus an uncivil outcome. In other words, the position, at least as I'm hearing you render it from the prosecutor, is I'll be nice to your face. I'm not going to Call you a name, and we're going to do this in a kind of measured, reasonable tone.

And my position is completely unyielding and unrelenting. And it is do the crime, do the time, period, end of story. There is no room for debate, discussion, anything. There is no mitigation of the circumstance, even though this person has already been to prison and has already done some serious therapeutic [00:12:00] work, it sounds like.

Yeah, I think that's right. And maybe if I dug down deep, I would think of other examples where I felt the same way, but this was just one that seemed more extreme than the average where, you know, if we all believed in the same thing that this process. produces good outcomes and that people should go to prison for a reason.

It seemed to me like this was just kind of an undeniable example of they've already gone to prison for the reason that they would need to. They didn't go for like 30 days. They went for like a fair period of time, had done everything that I think you could imagine you would want them to do, and still your position is And then maybe if I had had some crazy knockdown hearing where I called 15 witnesses and it took half the day and the prosecutor had to super prepare and I filed all these, you know, wild motions that the prosecutor felt were unfounded.

I guess I could see maybe needing to send some counter message, but. Uh, you know, the hearing was was 20 minutes or so. It was not [00:13:00] extensive. Um, the work that they had to put into it wasn't. And, you know, sometimes in in this job as a defense attorney, my job is to make the prosecutor work and to earn a conviction.

Maybe, maybe I don't have much, but at least I could make you do all the work you have to do. To get your conviction, but I didn't feel like that was the case here. Like this was very limited work for this prosecutor. And, um, and still, I thought that it was completely. Unreasonable and maybe that is that is.

Not civil, I think of civil more in the. The method, not the outcome. But maybe I need to change that perspective. It sounds to me like there is this kind of fascinating hidden, unwritten code, almost like a sense of argumentative rules that are unspoken between prosecutors and defense attorneys, where the harder you make somebody work, the less likely they are to make a deal with you.

Am I hearing that right? No, but I think [00:14:00] there. I think of it the other way. That, I want, I want a prosecutor to, to think. Or more really to know that if they are unreasonable with me and if they don't give me something that actually benefits my client in plea negotiations that I could make them work very hard.

I could make them respond to a lot of motions. I could and and not frivolous. I mean, I could litigate to the full extent that the law permits me to do and ethics permit me to do. I could file a You know, all these motions that have legal basis, I can bring in witnesses. I could make you work very hard.

But if you give me a reasonable outcome, and my client says, you know what? I understand maybe I'm giving up some legal arguments, but this is a pretty good outcome for me. And so I'm going to make this choice under the circumstances. Um, and and so, you know, I've seen examples and I could probably think of some where my.

My client took what my what the prosecutor thought was a very unreasonable path and the prosecutor kind of punished them. But this was just 1 where. My [00:15:00] client's path was completely reasonable And you didn't make the prosecutor work at all. And so it was no we they didn't have a lot of skin in the game Right.

Yeah that give and take or exchange just wasn't there And so I I just thought it was kind of an extreme example of maybe yeah Like you say the give and take that's sort of happening in this process along the way But this was just such an extreme version. That's really stuck with me. I think it just seems like there is a norm of reciprocity In the sense of how much labor, how much time, how much emotional investment is this going to take?

You adopted what you think is a very lenient position, which is, this is not going to take very much time. And I have some reasonable cases, reasonable arguments on my side. You won't have to take very much time either, and all you have to do is make some small concessions on sentencing. And then that norm of reciprocity was not, this prosecutor didn't adhere to it.

In any way shape or form and then continue to do so weeks afterwards when you re approached. Yes. And then, you know, to make the point [00:16:00] and maybe in some places, um, there's a, this person, the prosecutor will question my civility because I did take the case to trial. I was given absolutely no concessions. I told my client, why would we plea?

Um, the defense wasn't the best. I kind of came up with what I thought was a unique legal argument and went to trial. But I mean, they brought in the witnesses from the halfway house program that were like, yeah, he signed out. He was supposed to be back and he didn't come back. I mean, it wasn't that hard of a trial, but I, maybe I felt like, And maybe the prosecutor would be on your podcast later telling the other end of the story that the defense attorney was unreasonable.

As we close, I'm curious about what you learned from this. It's another way of asking why this argument stuck with you so much. But what did you learn about yourself as a professional? Maybe what did you learn about this industry, this business? And what did you learn about, not necessarily this particular prosecutor, but [00:17:00] Prosecutors with whom you'll have to deal with for the rest of your career.

I definitely try to be cognizant of who I'm dealing with on the other side and what approach works. And so I think I've spent more time just trying to get to know the prosecutor a little bit and know what's going to be successful with them. I've had instances with prosecutors who felt like I could never get a favorable plea, but then I figured out.

something that they liked. And then I tried to, you know, fashion my cases to fit that criteria. Um, you know, there was one prosecutor I felt like I, I couldn't get along with in anything and then we just found some commonality even just in out of court type things and that allowed us to have a better relationship and work cases out more favorably.

Um, and so I, I do think a lot about that give and take and I think a lot about how I'm litigating and is that strategic as far as trying to get a good outcome for a client. And if I file this motion, is it going to help? Is it going to hurt? [00:18:00] And then I, I work really hard to advocate, um, to explain to my client why I'm advocating in a certain way so that they can make a good decision as how to proceed along the way.

David, thank you so much for being on when we disagree. Thank you.

When We Disagree is recorded at the College of Charleston with creator and host Michael Lee. Recording and sound engineering by Jesse Kunz and Lance Laidlaw. Reach out to us at whenwedisagreeatgmail. com