The Obligations of a Defense Lawyer to Give You “Effective Assistance”
This article came up as a response to a reader’s suggestion that an office should be established to oversee the performance of lawyers. That’s not necessary because defendants who speak up can tell a judge all he needs to know. But you must speak up! This is what you should know about your lawyer’s responsibilities to you.
After your arrest, your attorney should visit you within a few days and speak to you about the complaint or indictment and tell you what is going to happen as each stage of the process continues.
After receipt of your DISCOVERY (the evidence against you) he should meet with you promptly and discuss it and tell you how he thinks you should move forward.
This generally involves three options: 1) trial, 2) plea without cooperation, 3) plea with cooperation. If you need further information about your case to help you come to a decision, ask your lawyer for it. At the end of your meeting your lawyer may recommend a course of action and you should discuss it with him for as long as it takes.
If the option is to plead, the plea agreement should be brought to you at the prison and not at the courthouse just before you go out to meet the judge. It should be discussed calmly in a private room along with a beverage of your choice and perhaps a candy bar to make things more relaxing. You can even ask your lawyer in advance to have the agreement translated for you so you can digest the agreement in the privacy of your cell and not have to be self conscious doing it in front of him. Ask him to send you the plea agreement so you can be prepared for questions before your next meeting with the attorney. By the time you take your plea you should know exactly what you and the government have agreed to so you can avoid the old story of “my lawyer promised me,” or my lawyer did not explain it me.” On the one hand I am tired of these stories and on the other hand it breaks my heart.
Whenever you are going to court or to the prosecutor’s office, or anywhere your attorney should advise you in person or via mail or e-mail in advance. Nothing should take you by surprise. If any of those steps above mentioned are missing: SPEAK UP! YOU MUST SPEAK UP! The judge is going to ask you if “you are satisfied with your attorney?” and “have you had a sufficient opportunity to review your plea agreement. TAKE ADVANTAGE OF that opportunity. SPEAK UP! The Judge will deal with it if only because he wants the plea to go forward and does not want to be accused of not addressing your complaint. So if a judge heard for example that the plea agreement had just been given to you in court and no one had read it to you, or your lawyer had never visited you, or that he did but promised you something, he would want to know about that and address it.
Don’t complain to your Bunkie or family. It’s not going to help. Tell the judge. There is an old saying, “If it is not on the record, it didn’t happen.” The record is the recording or the taking down by a court reporter of everything said that is said in court SPEAK UP! You will be heard. You have to be heard!
After a plea, the judge will order a presentence interview. The lawyer should insist that he be present. The probation office will contact the lawyer to set up a time and date. Prior to the interview, the lawyer should explain to you what questions will be asked of you.
A report will be submitted to the judge. It is called a pre-sentence report (PSR). That report will be given to your attorney, and he should visit you and discuss it with you to determine whether it is accurate and complete and if it isn’t he should promptly correct it. That PSR goes with you wherever you go, and is chiefly relied upon by prison authorities.
Your lawyer should submit his own pre-sentencing report on your behalf.
Then you will be sentenced.
The life you save will be your own. Speak up. Take control of your destiny. It’s too late after sentence.
– David Zapp and Johanna Zapp