F. Help your attorney

1.  Introduction

Not every criminal defense attorney is bad, and not all of these generalizations apply to every attorney, but odds are your attorney suffers from one or more of these problems.

If you come to understand some of your attorney’s problems, you may be in a better position to help your attorney help you.

a. Your attorney has too many cases.

Even the United States Attorney General has acknowledged that “Too often, defenders carry huge caseloads that make it difficult, if not impossible, for them to fulfill their legal and ethical responsibilities to their clients. Lawyers buried under these caseloads often can’t interview their clients properly, file appropriate motions, conduct fact investigations, or spare the time needed to ask and apply for additional grant funding.”[1]

As an example, “The American Bar Association and the National Advisory Commission on Criminal Justice Standards and Goals recommends caseload caps at 150 felony cases or 400 misdemeanor cases per full time attorney. But the 60 public defenders on Fresno’s staff carry caseloads of more than four times that amount.”[2]

According to the American Constitution Society, at least one public defender’s office spent on average less than one hour per defendant, and the average caseload at another public defender’s office was 2,225 misdemeanors per attorney per year.[3]  These attorneys are clearly grossly overworked.

b. Your attorney is poor.

The Attorney General has also acknowledged that “When lawyers are provided to the poor, too often they cannot represent their clients properly due to insufficient resources… public defender programs are too many times under-funded.”[4]

A subscription to a major legal search engine, such as Westlaw or LexisNexis, can cost $300 or more per year per user.  A book of sample pleadings can cost more than a $1,000 per year.  Most, if not all, public defender offices have access to these essential resources, but the cost of these necessities is simply too much for many criminal defense practitioners.  Even if the resources are available to public defenders, through a local law library, or through another source, a heavy caseload (as described above) may prevent the attorney from having time to use these essential tools.

Further, an attorney is not the only member of a criminal defense team.  An effective defense may require an investigator, a paralegal, and a myriad of scientific experts in fields such as DNA, fingerprint analysis, blood alcohol testing, ballistics, or accident reconstruction.  Support personnel expect to be paid, but sometimes there simply isn’t money for them, so the case proceeds without the necessary support staff.

c. Your attorney is inexperienced.

Every attorney has a first case.  Should it be yours?  It would be best if a new attorney were allowed to assist an experienced attorney on multiple trials before being thrown into the fray and defending his client alone, but this is often not done.  Sometimes a person will graduate law school, pass the bar, and find themselves to be an attorney, standing in front of a jury, defending their client against a veteran prosecutor, without having previously even sat through a trial.

d. Your attorney has personal problems.

Many attorneys are overworked, underpaid, and constantly under stress.  Their everyday decisions can lead to other people spending a lifetime in jail, losing their children, or even being executed.  It is a high-stress job which has led to a large number of attorneys having personal and family problems and a large number of attorneys turning to alcohol or drugs to cope.  The problem is so widespread that there is an organization completely dedicated to the problem.

“The Other Bar is a network of recovering lawyers, law students and judges throughout the state, dedicated to assisting others within the legal profession who are suffering from alcohol and substance abuse problems. We are a private, non-profit corporation. Our organization is founded on the principle of anonymity and provides services in strict confidentiality. The program is voluntary and open to all California lawyers, judges and law students.” (www.otherbar.org)


2.  Don’t sabotage your defense

Don’t walk, don’t talk, don’t write, don’t fight.


Don’t Walk

When you have a scheduled court hearing, show up and be on time.  Too often a defendant will post bail, forget to come to court, and end up getting another charge added – failure to appear.

For those who do not post bail, escape is sometimes easy – an inmate is allowed to simply walk away.  An injured inmate may be taken to the hospital for treatment.  If the inmate is not facing serious charges, he may be left alone with medical staff.  The temptation is great to walk away, but this could result in an additional charge – escape.

Be where you are supposed to be when you are supposed to be there.


Don’t Talk

The most common way defendants sabotage their defense is by talking.

Don’t talk to your family or friends about the case or anyone involved in the case.  Most jail calls are recorded.  Concerned family and friends naturally ask a defendant about the case.  The answers are often played in court and used to convict.  Defendants often ask family members to contact the victim and attempt to reconcile.  This can lead to an additional charge for witness intimidation.

Some defendants try to trick guards by talking in coded messages, trading phones with another inmate, or using another inmate’s phone codes.  The recordings of these calls are even more damning because the jury hears not only incriminating statements made during the call, but also that the defendant was trying to hide his actions.

Some defendants talk to other inmates about their cases.  Often fellow inmates strike a deal to testify against one another in exchange for leniency.  The jails are full of snitches.

To quote Attorney Bill Slocumb, “If you’ve been arrested, STFU.”  This appears to be an odd spelling of Shut Up.


Don’t Write

Letters sent from jail are subject to search.  Notes passed to other inmates can be intercepted or the inmate may give a note to a guard in hopes of gaining favoritism.  These letters and notes are often used against the defendant.

Out-of-custody defendants have been known to chat about their case on Facebook or other social media.  Some have even posted photographs of themselves with known gang members throwing gang signs.  Such antics can destroy a defense or lead to additional charges.


Don’t Fight

Jail is hard.  Some inmates have little to lose because they have already been convicted and are awaiting transfer to prison where they will spend the rest of their life.  If they attack a fellow inmate, it may raise their prestige.  Fighting is rampant in jails and prisons.

If an inmate is already serving a life sentence, the prosecution often doesn’t bother filing charges against the inmate.  However, a defendant facing a short sentence may find himself facing a very long sentence if he is charged for a jail fight.


3. Cooperate with your defense team

Odds are, you know more about your case today than your attorney will ever know.  You probably know your best defenses, and you probably have a pretty good idea about how to get in touch with witnesses that might help your case.  If you are sitting in jail, you probably have some pretty good ideas about who might post bail, who might help with security for bail, and who might give you good character references to help secure a lower bail.

You can talk to your attorney about all of these things, but the odds are he either won’t listen or he will forget something important.  Your attorney will never care about your case as much as you do, but you can make him care more by putting your thoughts in writing and letting your attorney know that you’ve kept a copy of what you’ve written.

If you put something in writing, your attorney will almost always respond.  If he does not respond, he runs the risk of being admonished by the court or the bar for failing to do so.

Any letter to your attorney should be short and to the point.  The letter should be neatly printed and it should not contain gang symbols or characters, such as crossed out letters.  It should not contain threats or harsh accusations.  A long letter that is difficult to read will probably be considered unreadable and receive little attention.  Letters to your legal team should be designed to get a favorable response, not to vent your anger about an unfair system.

Don’t keep secrets from your defense team.  If you know that your DNA will be on a piece of incriminating evidence, let your attorney know.  If you know that your fingerprints will be at the crime scene, let your attorney know.  If you know you are going to be seen on incriminating video recordings, let your attorney know.

You don’t want your defense team to collect evidence that will harm your case, but if they don’t know where the bad evidence is, they may accidentally uncover it while looking for good evidence.

Several sample letters are found in this book in the section entitled “Sample Letters.”


[1] Attorney General Eric Holder February 18, 2010 speech.  Available at https://www.justice.gov/opa/speech/attorney-general-eric-holder-addresses-department-justice-national-symposium-indigent

[2] Can a Public Defender Really Handle 700 Cases a Year?, Gabrielle Canon, July 27, 2015, available at http://www.motherjones.com/politics/2015/07/aclu-lawsuit-public-defense-fresno-california

[3] When Excessive Public Defender Workloads

Violate the Sixth Amendment Right to Counsel

Without a Showing of Prejudice, Laurence A. Benner, March 2011, American Constitution Society for Law and Policy

[4] Holder speech, supra.