Know What? Never Mind.

Why have I been repeating for three years (okay, for a lot longer than that) that lawyers should not waive detention hearings without good reason and that good reason means "because having a detention hearing will prejudice the accused"? Because better representation in a federal criminal case begins with a detention hearing, and for some quixotic reason I want to improve the quality of representation that people charged with federal crimes get.Forget all that. I'm done. From now on, waive all detention hearings when your client has "virtually no chance to be released." Cave in to the magistrate judges' pressure to get your client to waive his rights. And why stop at the detention hearing or in mag court? There are Constitutional rights to be surrendered, and legal arguments to be relinquished. You might as well give those up—everybody gets convicted anyway. I'll never refer a case to you, so you can waive everything for all I care.

Actually, unless you're representing a codefendant, I prefer that you waive everything. The more you give in, the better I look. One of the three big reasons I conduct a detention hearing is so that my client can see me fighting for him. The detention hearing is a preview of what he gets if he chooses to go to trial. When he sees that, he's going to trust me more; if the time comes when he has to decide whether to waive his most important rights, he's going to know—because he has seen it—that I don't give up easily. More than that, he will have seen that, even for its own sake, I love the fight. You, by contrast, will show your clients by waiving every little right from the get-go only that you know how to give up their rights. You might tell them that you'll fight for them, but it's going to take a leap of faith for them to believe it because they haven't seen it and seeing really is believing.

You may be a great lawyer, but I'm going to have happier clients, fewer grievances, and less stress because my clients are going to have seen that I am in their corner. When it's time to advise them about pleading guilty, they're going to know that I love the fight and wouldn't counsel them to give up the fight without good reason.

Oh, and your clients, while you're getting them to sign their waivers, might see me fighting for my clients too. Good luck explaining to the guy sitting in Joe Corley Detention Center how giving up his right to have a hearing right after his arrest made things any better for him. Because you and I both know that it didn't. It just made things easier for you. And for the prosecutor. And for the judge. And for a bunch of other public servants who would avoid the job that Congress has commanded that they do unless you agree otherwise.

Some of them will call me, wanting to hire me instead of you. Don't worry: they most likely can't afford me. I will find out how much they were to pay you, and charge more. Unlike Miami criminal-defense lawyer Brian Tannebaum, I don't mind being the second lawyer on a case (and even Brian probably wouldn't mind taking the case over from you), but without speaking ill of you I will explain to your clients who try to hire me that they get what they pay for. And besides, cleaning up your mess adds to my work.

And magistrate judges, you're doing a swell job. Please keep it up. You might imagine yourself to be the personification of justice, loved and admired by all who come before you, but to my clients you, no less than the prosecutor, are The Man. How do you think it looks to them when I have to butt heads with you from the first appearance to get them a semblance of fairness? They love it. You are not ultimately going to have a thing to say about how my clients' cases are decided, but the harder you work to get me to behave like the waiving lawyers (someone toss me a neologism here) who troop dutifully through your courtroom every day, the more my clients are going to have confidence in me, and the easier my job is going to be. The basis of every lawyer-client relationship is trust, and the strongest trust is born in adversity.

You know what the worst thing you could do to me is? Give me everything I ask for; make my job look easy.

5 Comments

  1. Wait, people waive detention hearings when their clients aren’t prejudiced? What’s the worst that’s going to happen if they have one? Um, their client won’t get released?? I read that article and I cannot believe that someone would not have a hearing, if only for the sake of having a hearing. WTF is happening in this world?

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