Yassine Meskhout
My job as a public defender puts me in a weird place. I am my clients’ zealous advocate, but I’m not their marionette. I don’t just roll into court to parrot whatever my clients tell me — I make sure I’m not re-shoveling bullshit. So for my sake and theirs, I do my homework. I corroborate. I investigate.
A significant portion of my job ironically mirrors that of a police detective. Every case I get requires me to deploy a microscope and retrace the cops’ steps to see if they fucked up somehow (spoiler: they haven’t). Sometimes I go beyond what the cops did to collect my own evidence and track down my own witnesses.
All this puts some of my clients of the guilty persuasion in a bind. Sure, they don’t want me sitting on my ass doing nothing for their case, but they also can’t have me snooping around on my own too much. . . because who knows what I might find? So they take steps to surreptitiously install guardrails around my scrutiny, hoping I won’t notice.
You might wonder why any chicanery from my clients is warranted. After all, am I not professionally obligated to strictly maintain client confidentiality? It’s true, a client can show me where they buried their dozen murder victims and I wouldn’t be allowed to tell a soul, even if an innocent person is sitting in prison for their crimes. Part of my clients’ clammed-up demeanors rests on a deluded notion that I won’t fight as hard for their cases unless I am infatuated by their innocence. Perhaps they don’t realize that representing the guilty is the overwhelmingly banal reality of my job.1
There is a kernel of an exception that is almost not worth mentioning. The Rules of Professional Conduct 3.3 obligates me with the duty of candor. I am not allowed to present evidence that I “know” is false, which encompasses witness testimony. Some jurisdictions make exceptions to this rule for defendants testifying in their criminal trial (correctly, IMO) but not all. So assuming that a client truthfully confesses to me, assuming we go to trial, assuming they decide to testify, and assuming I “know” they’re going to lie, then yes, this could indeed spawn a very awkward situation where I’m forced to withdraw in the middle of proceedings.
But clients still lie to me — exclusively to their own detriment.
***
Marcel was not allowed to possess a firearm. And yet mysteriously, when the police arrested him — the details are way too complicated to explain, even by my standards — in his sister’s vehicle, they found a pistol under the passenger seat.
“The gun is not mine. I don’t even like guns. I’m actually scared of guns.” He told me this through the jail plexiglass as I flipped through his remarkable résumé of gun-related crimes. Marcel spent our entire first meeting proselytizing his innocence to me. Over the next half hour he went on a genealogy world tour, swearing up and down on the lives of various immediate and extended members of his family that he never ever ever touched guns.
I was confused why he perseverated so much, but I just nodded along as part of my standard early precarious effort to build rapport with a new (and likely volatile) client. What he was telling me wasn’t completely implausible — sometimes people are indeed caught with contraband that isn’t theirs — but there was nothing I could do with his information at that early stage. Maybe he thought if he could win me over as a convert, I’d then ask for the case to be dismissed on the “he says it’s not his” precedent.
Weeks later, I got the first batch of discovery. I perused the photographs that documented the meticulous search of his sister’s car. I saw the pistol glistening beneath the camera flash, nestled among some CDs and a layer of Cheetos crumbs. And on the pistol itself, a sight to behold: to this day the clearest, most legible, most unobstructed fingerprints I have ever seen in my legal life. If you looked closely enough, the whorls spelled out his name and Social Security number.
Public defenders are entitled to ask the court for money to pay for private investigators, digital forensic specialists, fingerprint examiners, or whatever else is needed to ensure a defendant in a criminal case is provided with his constitutionally guaranteed legal bulwark. The photographed prints here were so apparent that an examiner could easily rely on the photos alone to make a comparison.
Marcel had earned himself some trolling from me. I went back to see him at the jail, faked as much enthusiasm as I could muster, and declared, “Good news! They found fingerprints on the gun!” He stared at me stunned and confused, so I continued.
“Well, when we first met, you told me that you never touched the gun,” I reminded him with an encouraging smile. “Obviously you wouldn’t lie to your own lawyer, and so what I can do is get a fingerprint expert to come to the jail, take your prints, then do a comparison on the gun itself. Since you never touched the gun, the prints won’t be a match! This whole case will get dismissed, and we can put all this behind you!”2
I’m told I put on a good poker face.
He was still reeling but realized I was waiting for a response. “You. . . don’t need to do that,” he muttered. I had the confirmation I was looking for, but I pressed him while maintaining the facade of earnest congeniality.
“But why not?” I sang in staccato, smile wide. “You told me. That. You. Never. Touch any guns.”
Turned out Marcel might have accidentally touched the gun. So his prints could be on it. I had made my point, so I dropped the act. I explained to Marcel that the only thing lying to me accomplishes is to slow things down and worsen his own prospects — how could I pursue any potentially helpful leads for his defense when I couldn’t be sure I wasn’t about to bumble into an incriminating revelation?
Marcel nodded sagely and claimed to understand, but he went on to lie to me many more times over the next two years that I remained his attorney. Marcel has and will spend the majority of his adult life in prison — not necessarily because he lied to me but that certainly didn’t help.
***
My first meeting with Kyle was useless. He insisted throughout that it wasn’t him, that he wasn’t even there. Now, personally speaking, if several witnesses claimed to have seen someone who looks like me, in my car, with my girlfriend in the front seat, commit a drive-by shooting in broad daylight, I would summon slightly more curiosity about who this apparent doppelganger might be. But Kyle gave me no leads, pantomiming an internal agony about not wanting to be a snitch, clutching at his stomach as if the mere thought was physically unbearable.
His tune eventually changed. “I need you to tell the prosecutor who was driving my car,” he said.“His name is Richie Bottoms.” If the name hadn’t given it away, I already knew where this was going,3
There was no Richie Bottoms.
Based on his reaction, that wasn’t the response Kyle expected; another illustration of a myopic theory of mind (not uncommon among the interpersonally inept) incapable of simulating anything but affirmation. He tensed up momentarily, but realized that he’d already committed himself to acting out a demeanor congruent with the “innocent client responds to helpful attorney” fantasy. Yet the only excuse he could muster up in the moment was that Richie wouldn’t be found because he fled to Los Angeles.
I maintained what must have been an obnoxious level of optimism, explaining how “perfect” that was because my investigator “knew lots of people” there. My job affords me few if any moments of joy, and so forgive me if I overindulged in Kyle’s vexation. I’ll spare you a full accounting of the myriad reasons he gave why tracking down Sir Bottoms was a lost cause. Suffice to say that in addition to being out of state, Richie had maybe fled the country; also, Richie happens to look almost identical to Kyle, but also we might not even know his real name since he went by “Arby,” and no one had his phone number, et cetera. . .
Even when we moved on to other topics, Kyle couldn’t let it go, interrupting whatever we were talking about to repeat warnings about how tracking down Richie was going to be a total waste of time for my investigator and me. He was palpably angry, but had no viable outlet for his frustration, and so he just stewed, stuck with his lie. I kept my poker face. It’s a stark contrast to my factually innocent clients, who cannot help but drown me with leads to pursue in the hopes that any are helpful.
The whole thing reminded me of Carl Sagan’s parable of the dragon in his garage as a critique of certain unprovable religious beliefs. Can I see the dragon? No, it’s invisible. Can I detect its fire’s thermal image? No, the fire is heatless. Can I find Dick in Los Angeles? No, because now he fled the country.
There’s always some excuse — there’s always some eject button allowing my defendants to evade specific evidence demands. No matter how ridiculous.
***
It’s banal for my clients to deny the accusations, but a special breed takes denial to the next level by waging total jihad against their accusers. It’s a sort of a reverse counterpart to the Narcissist’s Prayer:
In these clients’ telling, nothing is their fault. The random bystanders who randomly drew the unlucky witness card become a convenient scapegoat. Yet these clients are so myopically overwhelmed by the desire to bounce the rubble on a witness’s credibility, they don’t notice how implausible their story becomes with each new clause they tape onto their fabulist’s scrapbook.4
For example, Kyle asked if it was possible to present self-defense evidence on behalf of “Richie Bottoms,” just in case.
Sometimes clients are self-aware enough to couch their denials in innuendo. Ivan, who was accused of [redacted], was waging the same Total War approach against Cindy, a social worker at the homeless shelter where Ivan regularly stayed. Cindy was a dangerous witness — an uninvolved, respected professional who severely undercut Ivan’s alibi defense about having never left the shelter to go on his [redacted] spree.
In yet another of our jail rendezvous, Ivan expounded at length about how Cindy’s testimony was invalid because, as a social worker, she would be violating HIPAA.5
Does this sound familiar to anyone?
His disappointment transmogrified into astonished anger. “Do I have to fucking spell it out for you?” he screamed. “I thought you were the lawyer here!” We had been ping-ponging across various aspects of his case for the last hour or so and I gave up on any posturing and reiterated my ignorance at the significance of the cartoon flyer. Ivan snapped, “Cindy is encouraging people to trash talk!” For, you see, she wrote the flyer. “I’m trying to show you that she’s a fucking punk! And a liar!”
I immediately understood why Ivan was so attached to remaining within the realm of innuendo. Because as soon as he gave his claim some body (“We should infer lack of credibility from individuals when they author flyers that include garbage-related puns”), he knew how much of a dumbass he would sound like out loud.
Ivan moved on from the flyer, and instead asked how to disqualify a witness “for being a liar.” I tell him that’s not a thing,6
During the editing process, Jesse was skeptical of this. “Wait,” he asked me in a Google Doc comment, “there’s NO way for one side to prove to a judge that a witness is so untrustworthy the jurors/judge shouldn’t consider their testimony?” Correct. The closest rule is disqualifying a witness as incompetent, either for being too young, severely mentally ill or mentally retarded, or too intoxicated (on the witness stand!). Credibility is up to the judge/jury to decide, and if a witness has a history of lying, then it makes for a very easy credibility impeachment. Theoretically, in extremely rare circumstances, a judge could strike the testimony of a witness or find them in contempt, but they’d have to be seriously flagrant about their lying under oath. I have never heard of this happening.
***
The manipulation attempts we just cataloged were comically inept, and fell apart with far less effort than it took to create them. Slightly more polished versions of these charades are regularly deployed within the Discourse™ but they’re equally hollow and just as pathetic. So those are some of my clients — individuals who cannot rise to the level of your average internet troll.
