Time

Spending time with the client and the client’s family is the most important component of plea negotiations. It provides the framework of a relationship between the client, his family and the attorneys that becomes the context within which the client can make a decision to save his own life. Much of the time initially spent with the client may seem frivolous or futile because it is devoted to topics far outside the realm of legal issues: "How ‘bout them Cubs?" as one lawyer oft repeats. Yet, time speaks to clients where words fail. Time allows the client to "test" the lawyers. Many client behaviors are tests silently administered to unwitting attorneys -- tests of commitment, intelligence, skill, compassion, etc. Clients are impaired in many ways, especially with regard to relationships. Their childhoods left them unable to believe that anyone would consistently and sincerely act in their interest. The only way they can learn to trust is to watch what their attorneys do over time.

Time allows the story to emerge. Many times a plea comes only after the client has had an opportunity to make sense of his own suffering. This requires that he fully narrate his story. Attempting to put into words what has only been a hollow sensation of pain and confusion allows the client to understand some of his experiences and assuage his shame and guilt. Rarely does the story come out all at once. It is told by teaspoons, a slow ebb and flow of images and words. Listening to the story is perhaps the greatest contribution made by attorneys and other team members. Good listening takes time and skill; it involves the ability to hear without judgment, relinquish control, and allow the other person to struggle out loud with his demons. Often the client doesn’t know the causes of his own pain. Educating him and providing him the means to understand the sources of his confusion and his behavior are important. Creating a space for the client to observe his inner world can reduce his self-loathing and develop the seeds of self-worth, which in turn gives him permission to live.

The client needs to know that the attorneys didn’t just throw up their hands and give up. He must know that the plea resulted from hundreds of hours of painstaking investigation and analysis of the case. This entails following up on each "lead," -- no matter how pointless it may seem -- and discussing with him every avenue that could be pursued, regardless how irrelevant these efforts may appear to the rest of the team. Discussing issues over time allows for repetition of facts and concepts that are obvious to the attorneys, but which the client may not be able to grasp without hearing and having explained to him many times. An understanding of why the case is unwinnable, combined with trust in the attorneys’ intentions, often results in a successful plea.
 
 

Dynamics: the Client and the Team

It is important to think about who comprises the team. Typically, the nucleus of a capital team includes counsel and co-counsel, a phase one investigator and a mitigation consultant. It is essential not to forget that the client and his family also are important members of the team, even when they are impaired, difficult to work with or resistant to the rest of the team’s best efforts. The client’s and his family’s roles must be made explicit early on in the team building process. They must be helped to understand that the primary goal is to save the client’s life and that they are the most important people in that process. All along the way the mantra, "What are your thoughts?" should be repeated to the client and his family. The rapport that is created by including the client and his family later can become the currency with which the plea is negotiated.

One of the most common traits seen among capital defendants is the compulsion for self-defeating behavior. The ability to "snatch defeat from the hands of victory" permeates most aspects of the client’s personality and relationships. This often manifests as "splitting," which means that the client mentally and emotionally divides the team into categories of "good" and "bad," and attempts to develop alignments with whomever he perceives as "good." These categories can change daily, resulting in drastic changes in the client’s behavior toward various team members. Along with primitive "black and white" thinking comes the propensity to blame, go on irrelevant tangents, and attempt to co-opt team members into fault-finding with each other. Nothing undermine the team’s efforts to effectively resolve the case more quickly than the client’s -- and his family’s -- unconscious divisiveness. There is often an increase in splitting and other self-defeating behaviors as the case comes to closure. Miscommunications, tension and conflict within the team are generally diagnostic of the client’s ambivalence and anxiety and should handled immediately.

The Client’s Wounds: Trauma and Decision Making

It must be assumed that the client is emotionally and intellectually impaired. Most of the damage is done in early childhood. There is no end to the horror that is visited upon our clients: They are rejected, abandoned, beaten, sexually abused, degraded, starved, forced to submit themselves to unspeakable humiliation, and isolated from sources of support and solace. This disrupts their development and causes them to re-enact throughout the course of their lives what they experienced as children. Nowhere are the effects of trauma more evident than in the client’s consistent inability to make decisions in his own best interest. Obviously, if the client were a good decision-maker he would not find his way to us.

Clients generally use very primitive thinking. They see the world in broad contrasts: Life is "either/or," not "both/and." Thus, they adamantly demand to "free me or fry me," and see any attempt to find a middle ground as a form of betrayal. Their limited ability to reason effectively and know who and when to trust renders the usual approaches used by attorneys ineffective.

While clients cannot think well under any circumstances, increased stress causes further regression, which is why they can become completely irrational at the most critical junctures. There is little that can be done to repair developmental damage. However, the team can be mindful of how the client responds to stress, observe patterns in his thinking, and find the ways that he can save face and honor important relationships. Most important is the capacity of the team to reduce and help the client modulate his response to stress. Unrelenting stress during childhood caused him to remain internally aroused and hypervigilant. He sees danger where it doesn’t exist. He alternates between acting out and shutting down. He doesn’t understand his body or his emotions. Making the relationship with the team as safe a place for the client as possible is one of the best means to manage his stress. Safety translates into predictability, patience, and benevolence. It includes demonstrating reasoned responses and systematic problem solving skills. Over time, the client may become less anxious and therefore be able to use more complex thought.

Because the client’s thinking is so impaired and he is under so much stress, "reasoning" with him -- e.g. laying out the facts and presenting a "case" -- may not be an effective means of arriving at a plea agreement. Sometimes a different tack is necessary. Instead of explaining to the client why the case is unwinnable and why a plea is his best option, try having him explain the case to the attorneys (without fear of being cross examined), and how a decision to go to trial is consistent with who he is and how he wants his life to be. Sometimes the process of talking slowly and calmly, and eliciting his view on a variety of matters enables the team to identify hidden fears and an underlying agenda. Once the real issues are uncovered they can be re-interpreted in light of a plea. A client often accepts a plea when it is no longer seen as inconsistent with the ways in which he defines himself.

Nobody likes to be pressured into anything. It deprives a person of his or her dignity. There sometimes comes a point in a case when the team is working too hard, assuming too much responsibility, and is replicating the client’s childhood experiences of being cajoled, coerced or pressured into doing things he didn’t want to do or didn’t have the capacity to understand. When the client feels pressured he often "polarizes;" i.e. he starts to see the battle as "you against me" instead of "me against the state" or "me against myself." When the client is more concerned with not getting pressured into taking a plea than he is with saving his own life it is usually time to step back and release the tug-of-war rope. Here the balance of effort should be switched so that the client is doing at least 51% of the work. Occasionally it is useful simply to say, "I’m really not sure what you’re going to do. You have a tough decision to make. You have all the tools and resources necessary to make that decision and I know you will do not only what is in your best interest, but what is in the best interest of your children (wife, etc.). I am honored to have worked with you and to have been a part of this process. Let me know how I can help you." This can have a powerful paradoxical effect on the client. Once he is free of the external pull, he is left with his own thoughts and with his anxiety. He can now turn his attention away from his attorneys and deeply consider whether he wants to roll the dice with his own life. When he knows it is his decision, he is free to make it.

Please feel free to contact Rick Kammen or Lee Norton if you have questions or want to discuss these topics further.
 

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