When I was working arraignments, after examining the court papers, I would head to the holding cell behind the courtroom and call out the name of my client. That person would move to the bars where I stood. I would introduce myself and present my card. I would tell him that I was the lawyer who was going to represent him. I would tell him the allegations in the court papers and explain his rights and what would happen in the courtroom.

A brief interview followed. This was legally problematic. Conversations between a lawyer and client are privileged; that is, the government cannot force disclosure of privileged conversations from either the client or the lawyer. However, normally the privilege applies only if the conversation has been conducted in a confidential manner, that is in a way that other people do not hear what is said. The person I would interview, however, was not alone in the holding cell. There might be a half dozen or more other arrested people waiting to be arraigned; court officers who staffed the holding cell area were present; and other attorneys also meeting clients were around. These people could easily hear what was being said; there was no true privacy. Even so, it was often important to try to get some information from the client.

If the rap sheet indicated a criminal record, I would ask the client about it to get his version of the dispositions that were not recorded. I would go over the information from the pre-trial agency report and ask whom I might contact to verify anything that could aid the client. I would ask whether any of his family or friends were in court so that I could talk to them.

I would also ask his version of the charged crime. I did this for several reasons. The judge would only have the prosecution’s version, and for plea-bargaining and bail-setting reasons, I might want to indicate the defendant’s alternative as to what happened. And getting the client’s version could be important for starting an investigation. If the arrested person indicated that he had an alibi–that is he was at some other place than the scene of the crime–it would be important to seek out and interview witness who might confirm that alibi. If the crime arose out of some sort of altercation, it was important to interview those who witnessed the altercation to learn their version of the event. Time mattered. Witnesses became harder to find the longer the search for them was delayed, and their memories often became less useful as time elapsed. For example, if I asked where you were and who you were with yesterday at 6PM, you could probably tell me. If I asked where you were and who you were with at 6PM three weeks ago, your answer might not be as certain. Add to that the fact that many people who might be witnesses lead what might be called irregular lives that make it difficult to recall actions from weeks or even days before. In short, prompt witness interviews were essential. A delayed investigation might lose evidence entirely. For example, many surveillance cameras erase or record over what had been recorded in the last week or so.

If an investigation seemed beneficial, I would ask investigators that were on staff to do so in the coming days, or if I had the time, I would do it myself or in conjunction with an investigator. But that depended on what the client said, and clients were seldom fully forthcoming in these initial interviews. That was hardly surprising. The client had met me only moments ago. He had not selected me. He had little reason to trust me. I could tell him that anything he told me was confidential, but surely few of the clients were aware of the attorney-client privilege. And somehow talking with bars between us with others around was hardly conducive to building up the bond often necessary for forthright conversation.

Now add to these difficulties what the client had gone through in the day before we had met. He had, of course, been arrested, and, whether deserved or not, an arrest is traumatic. This meant a person was handcuffed, often in a public place or in front of family or friends, also traumatic. He was ordered and moved around—into a police car and into several different police stations. He had been placed in one cell and then moved to another and probably another. He had not been alone in these lockups but with others who may have been weeping softly or who appeared threatening. If he had to have a bowel movement, he would have had to pull down his pants in front of strangers and sit on a seatless toilet. (I have known some arrestees who soil their pants instead of doing this.)

From the time of the arrest until arriving incourt, the arrested person probably desired sleep, but sleep could only have been grabbed in a cell without beds. A metal bench or the floor would have been the only place for sleep, but that rest was unlikely with others around who may have been violent or mentally disturbed or simply talkative. After a day like this, when fear and anxiety and degradation have been ever-present, it is not surprising that many arrested people are not exactly loquacious when they first meet their appointed attorney.

(continued March 8)