January 21, 2020 Boot Camp, Esq.

Ask Allison

Allison Jackson Mathis

Dear Allison,

How do I negotiate with a prosecutor? I know that sounds like a dumb question, but I’m still kind of new to this and, even though I’ve handled a good amount of cases, I just feel awkward when I’m negotiating—like I either get too loud or I’m too much of a pushover, and I get upset when they give me what I think is a bad offer. When I don’t have anything to negotiate with, when the law and facts are both against me, how am I supposed to ask for a better deal? What do I do?

Yours,

First Offer Freddie

Dearest, Darling Freddie,

I once knew a wise older prosecutor who told me not to take a young, overzealous prosecutor’s ridiculous first offers personally. “What do you mean?” I sneered, “It’s always personal if it’s my client.” And then I stormed off, feeling righteous and indignant.

Yes, Freddie, it is your client, but no, it’s not personal. There is a difference between being our client and being our client’s advocate. We don’t want to be our client. Our clients, many times, are not good decision makers, but we should strive to be. Part of being able to make good decisions and advise someone about good decisions is that we can’t be too emotionally involved. Your darling Allison understands, though, that this is a thin line to toe—developing a good relationship with a client and not getting too swept up in the feelings involved—but it exists and comes with time.

Sometimes it’s easy to get insulted when someone is being unreasonable. That’s especially true when we’ve bonded with our clients and we don’t want bad things to happen to them. But the way we handle that, dear friend, is not to walk away fuming, it’s to try to make the prosecutor understand why we don’t want bad things to happen to our client.

When you walk into a first appearance, the prosecutor has probably seen the following things about your client: a mugshot, a criminal history sheet, and an offense report. “Seen” is probably too strong a word. “Skimmed” or “gleaned” may be better. Your job is to depict a person who is more than the sum of those things. There are different ways to do this that work better or worse with different prosecutors.

Sometimes it’s enough to say, “Oh, gosh. I see your offer is six months in jail. My client has three kids and is the only one working. That would just totally devastate them. Is there anything we can do with this?” If the answer is no, you can keep pushing. Sometimes it’s best to walk away for a little while before you do that, though. Reset the case, get some mitigation together. (Proof of employment? A letter from her church saying that she’s there every Sunday and leads the choir and please don’t send her to jail? A picture of her taking care of her sick mom?) Sometimes it’s not just about playing to heartstrings, it’s about helping a low-level prosecutor pad the file with enough mitigation that he or she can justify a really sweet deal to a supervisor.

I get it. We don’t come from a culture where you haggle. It feels cheap and weird to negotiate with someone’s freedom. But here we are in the midst of this peculiar situation, and our client suffers for our awkwardness and bad attitude.

Also, I know you may be surprised to hear this, but prosecutors are people too. I thought about this the other day as I sat in a courtroom next to a pretty, young prosecutor pleasantly chatting, both of us waiting to approach the judge. Suddenly, a defense attorney popped up in front of her, breathing his fetid, sour breath into her face and demanding that she dismiss a case while staring directly at her chest and grimacing. Uh, yuck. Double yuck. Brglfffyyyyyick (that’s the sound of me involuntarily shuddering and saying “yick”).

She was polite but firm, and he had zero grounds for dismissal other than the fact that I would have probably signed the stinking nolle right then just to get his nasty, leering ass away from me forever. As he lumbered away, knuckles delicately grazing the carpet, I said something to the effect of, “That was super gross. I apologize on behalf of all people ever that you had to deal with that.” Without batting an eyelash, she said, “Oh, he’s not that bad compared to some.”

Dear Freddie, at age 19, your darling Allison was a diner waitress for the late-night crowd. Picture her in a cute maid uniform, significantly more svelte and bubbly, bringing drunkards endless patty melts and strawberry cheesecakes at 3:00 a.m. Your darling Allison knows what it’s like to be grossed out by the mouth-breathers and butt-slappers. This was that bad. Worse, even, it felt like. This was not a late-night diner. This was a courtroom.

Yes, I disagree with the incarceral system in general. No, I don’t think that I have much in common with most people who devote their lives to putting my clients in that system. But oh my gosh, let’s keep our manners and a civil tongue (and eyeballs) in our heads. Prosecutors have a lot of discretion, and I can’t imagine that even the most regimented and professional among them aren’t somewhat more or less inclined to negotiate more or less favorably with attorneys who treat them like people and not like pork products.

When you go meet with prosecutors, give them a chance to be reasonable. Smile. Don’t walk in with a sword (or worse . . .) in your hand, ready to hack or poke anything that gets in your way. Listen to them talk. People feel the need to fill in silence with justification. Let them fill in the silence. Listen to their reasons for not wanting to give you a good deal. Then calmly, surely, make as many of those reasons go away as you can. It’s just like playing Jenga. Almost.

Fond regards,

Allison

Dear Allison,

I’m having trouble with one of my clients. He’s saying he’s not guilty, but he wants to take jail time instead of taking the case to trial. The case has serious flaws in it, and I think if we went to trial we would probably win, but the prosecutor refuses to dismiss. There’s no way the jury would give my client more time than the offer, so even if we lost, there’s nothing to lose. He’s insistent on taking the jail time offer, though. The prosecutor has also offered a (longer) term of deferred adjudication probation, which would mean the offense wouldn’t even be on his record if he would do the probation and complete it, but he’s saying he wants the time. I have talked to him about this for hours, but he won’t change his mind. I am sick about this. What should I do?

Yours,

Candid Cameron

Dear Cameron,

One thing your darling Allison wasn’t really ready for when she first started practicing criminal defense was the fact that she has different priorities than some of her clients do. It seemed we all probably had the same priorities—get them out of jail, keep it off their record, fight to the death against steep odds at trial if necessary. Unfortunately, though, it doesn’t start or end there.

A huge part of your job, Cameron, is to be a counselor. We advise our clients to the best of our ability, and, when it comes to how to plead and what deal to accept or reject, they make the decisions. Sometimes our clients do not listen to us. Sometimes they don’t understand what we’re telling them. Sometimes they listen and don’t like what we have to say. A lot of times they listen and don’t think we’ve listened to them so how could we possibly advise them?

A lot of my clients, guilty or innocent, are bad decision makers. Yeah, some of them were really just in the wrong place at the wrong time, but a lot of the time, being in the wrong place at the wrong time also involves making bad decisions. Some of my clients make bad decisions because they never really learned about how to think things through critically and rationally, some of them have impulse-control problems, and some of them have behavioral disorders or problems with addiction. Other than navigating the intentionally opaque language of the law, part of the reason our clients need us is to help them make good decisions. That’s a really difficult thing to be tasked with.

I think there could be a lot of reasons why your client maintains his innocence but does not want to go to trial, even with you advising him that trial would likely turn out favorably. Aside from spitting facts and bravado at your client, have you listened to why he doesn’t want to go to trial? Those reasons are glaringly absent in your letter, friend. Are you sure your client understands what you’re telling him? I have found it an invaluable tool to ask my clients to tell me what they think I just said. “Hey, I’m worried that I wasn’t coming across very clearly. What do you think I meant when I said that?”

In order to really be able to counsel your client, you need to have developed enough of a rapport with him that you can address his real concerns. Being accused of a crime is really embarrassing for a lot of people, and I’d imagine it’s pretty awful to have to discuss a bunch of truly intimate things about yourself, especially things you’re really not very proud of, with a total stranger. If you’re just walking into meetings with him telling him why you would go to trial, you’re not doing your job.

But maybe you have developed a close relationship with your guy. Maybe he’s told you everything. Maybe you’ve listened and he’s just still insisting that he wants to do the jail time. In my experience, these are the clients who have different priorities than I do, and it’s a struggle. The clients whom I have had like this are generally fairly self-aware. They know that they will not be able to meet the requirements of probation, and they don’t want to keep hassling with trying to keep something off of their record. Largely, in my experience, these clients are drug users who are not ready to stop using drugs.

Here’s the problem, sweet friend. We are not here to judge. We are not here to wrangle and control. We are here to advocate for our clients. It’s great when a client wants treatment and we get them help instead of punishment. It’s a wonderful feeling to see your client doing better and feeling better and starting a more productive life—and gosh, I want everyone who seeks that kind of help to be able to access it. But not all of our clients want that.

Aside from issues of competency and mental health, which are, of course, big issues, we have to give our clients the dignity to make their own decisions, even if we think they are bad decisions. If you have talked about all of the consequences of taking this conviction, explained the reasons why you think this case would be successful at trial, talked through all of the resources and programs your client is eligible for, and had a meaningful conversation about the reasons why your client wants to do the jail time, your job is not to convince him to make the decision you would have made.

Talk to your client one more time. Make sure he understands what you are telling him. Make sure you tell him everything. Ask him why he still wants to do this. And then (and this is the hard part), honor his decision.

Kind wishes,

Allison

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Allison Jackson Mathis

Allison Jackson Mathis is a public defendrix in Houston, Texas. She has held a variety of criminal defense jobs, including Chief Public Defender of the Republic of Palau, Tribal Advocate for the Swinomish Indian Tribal Community in LaConner, Washington, and even defended the public while living in a yurt outside of Aztec, New Mexico.