August 2011 • Volume 99 • Number 8 • Page 382
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“What happened?” How to talk to a found-guilty defendant
What do you say to the criminal defendant who wonders why the judge or jury found him guilty? Two seasoned lawyers offer their thoughts.
As the series of "guilty" verdicts was read at the conclusion of the retrial of former Illinois governor Rod Blagojevich on federal corruption charges in June, journalists reported from the courtroom that Blagojevich turned to one of his attorneys, Sheldon Sorosky, and mouthed the words "What happened?"
Though lawyers know well that trial outcomes are never guaranteed, it seems safe to say that the news of the convictions surprised few of those following the trial. Blagojevich's own reaction, though, appeared genuine.
Imagine that you're sitting at the counsel table with your client, who's just been convicted on charges that carry serious time in prison. Like Blagojevich, your client is stunned, and turns to you to ask the same question that Blagojevich put to Sorosky. How would you answer him, once you and he were out of the courtroom and had the opportunity to speak privately?
Cook County lawyers Robert Loeb and Michael Ettinger provided LawPulse with some thoughts on that question. Both are experienced defense lawyers who have represented many defendants in criminal matters in state and federal court; Ettinger, in fact, represented the former governor's brother in the first trial.
"I'd first want to know what he meant by his question," Loeb says, noting that questions from any client may be open to more than one interpretation. "Is there a chance he was asking where am I, what's going on, what am I doing here? I would also ask specifically if there's something he truly doesn't understand."
The more likely interpretation of Blagojevich's question, in both attorneys' view, is that he was taken by surprise. "He's a lawyer. He knows what happened - it just didn't sink in," says Ettinger. "Probably every trial lawyer, and every client, has hopes for a favorable result," Loeb says. "The more time that goes on in the deliberation" - nine days, in Blagojevich's case - "the more those hopes go up."
Once they were able to speak with their client in private, Loeb and Ettinger would go over the verdict, making sure to find out and address all of their client's questions and concerns, and then turn their client's focus to the future. "I would like to think that I don't lead my clients down the primrose path so that they're shocked with a verdict," says Loeb.
"Hopefully I've told him everything, so whatever I've told him now is reiterating. I might tell him we gave it our best shot. I might tell him how tough it is to beat the government. If I truly believe it, I might tell him we never had a shot once the judge kept X out of evidence or allowed Y into evidence, and that's what our appeal is going to be all about."
For any convicted criminal defendant, filing post-trial motions to preserve arguments of trial error is one of the first steps forward. Ettinger noted at presstime that the former governor's defense team had begun that process, asking the court to preserve all juror questionnaires.
In a long trial such as Blagojevich's, which involved many pretrial rulings, he estimates that a motion for judgment of acquittal or new trial is likely to consume 100 pages or so. Though clients will inevitably have different levels of understanding of the issues involved in their cases, defense counsel will need to discuss them. "Rod's a lawyer, so he'll comprehend them," Ettinger says.
Too late to cooperate
Cooperating with the government may sometimes be an appropriate subject for discussion with the convicted client, Ettinger says. Usually, however, the time for discussing that issue is before trial.
"Cooperating isn't going to work when you've gone to trial and lost," he says, discounting any possibility that the former governor might be able - even were he willing - to negotiate favorable treatment in exchange for testifying at, for example, the October trial of William Cellini. Exceptions to that rule may exist for smaller fish in the event of an upcoming prosecution of larger quarry, he says.
Sentencing is an important area for strategizing with the convicted client, Ettinger says. "You can put a sentencing hearing together where you can help your client." To do so, the lawyer must thoroughly explore the client's position. "Does he accept that he got found guilty and probably did something wrong? If he does, proceed to a sentencing hearing with a strategy of showing acceptance of responsibility."
But, in Ettinger's experience, that doesn't often happen. "To take on the government and go to trial, clients have spent a lot of money, a lot of time, and a lot of effort. Generally they want to appeal. At the sentencing hearing, they want to show what good they've done" by way of mitigation. In those cases, "You don't want them to make statements about accepting responsibility if there's hope for a new trial."
Loeb and Ettinger agree that the defense attorney must show their convicted clients compassion and understanding. For clients who ask, "How can I go on? How will my family survive?" Loeb offers, "You can, and they will. They need you."
He cites examples of other criminal defendants who have served their time and gone on to live meaningful lives. "If you can be with your family and friends, raise your kids, and have a job," whether as a truck driver, a department store clerk, or a reality show star, "that's a meaningful life."