It's not just that my clients lie to me a lot, which will only hurt them --- it's that they're really, really bad at it.
[Originally posted on Singal-Minded]
My job as a public defender puts me in a weird place. I am my clients' zealous advocate, but I'm not their marionette. I don't just roll into court to parrot whatever my clients tell me --- I make sure I'm not re-shoveling bullshit. So for my sake and theirs, I do my homework. I corroborate. I investigate.
A significant portion of my job ironically mirrors that of a police detective. Every case I get requires me to deploy a microscope and retrace the cops' steps to see if they fucked up somehow (spoiler: they haven't). Sometimes I go beyond what the cops did to collect my own evidence and track down my own witnesses.
All this puts some of my clients of the guilty persuasion in a bind. Sure, they don't want me sitting on my ass doing nothing for their case, but they also can't have me snooping around on my own too much. . . because who knows what I might find? So they take steps to surreptitiously install guardrails around my scrutiny, hoping I won't notice.
You might wonder why any chicanery from my clients is warranted. After all, am I not professionally obligated to strictly maintain client confidentiality? It's true, a client can show me where they buried their dozen murder victims and I wouldn't be allowed to tell a soul, even if an innocent person is sitting in prison for their crimes. Part of my clients' clammed-up demeanors rests on a deluded notion that I won't fight as hard for their cases unless I am infatuated by their innocence. Perhaps they don't realize that representing the guilty is the overwhelmingly banal reality of my job.[1] More importantly, it's myopic to forget that judges, prosecutors, and jurors want to see proof, not just emphatic assurances on the matter.
But clients still lie to me --- exclusively to their own detriment.
Marcel was not allowed to possess a firearm. And yet mysteriously, when the police arrested him --- the details are way too complicated to explain, even by my standards --- in his sister's vehicle, they found a pistol under the passenger seat.
"The gun is not mine. I don't even like guns. I'm actually scared of guns." He told me this through the jail plexiglass as I flipped through his remarkable résumé of gun-related crimes. Marcel spent our entire first meeting proselytizing his innocence to me. Over the next half hour he went on a genealogy world tour, swearing up and down on the lives of various immediate and extended members of his family that he never ever ever touched guns.
I was confused why he perseverated so much, but I just nodded along as part of my standard early precarious effort to build rapport with a new (and likely volatile) client. What he was telling me wasn't completely implausible --- sometimes people are indeed caught with contraband that isn't theirs --- but there was nothing I could do with his information at that early stage. Maybe he thought if he could win me over as a convert, I'd then ask for the case to be dismissed on the "he says it's not his" precedent.
Weeks later, I got the first batch of discovery. I perused the photographs that documented the meticulous search of his sister's car. I saw the pistol glistening beneath the camera flash, nestled among some CDs and a layer of Cheetos crumbs. And on the pistol itself, a sight to behold: to this day the clearest, most legible, most unobstructed fingerprints I have ever seen in my legal life. If you looked closely enough, the whorls spelled out his name and Social Security number.
Public defenders are entitled to ask the court for money to pay for private investigators, digital forensic specialists, fingerprint examiners, or whatever else is needed to ensure a defendant in a criminal case is provided with his constitutionally guaranteed legal bulwark. The photographed prints here were so apparent that an examiner could easily rely on the photos alone to make a comparison.
Marcel had earned himself some trolling from me. I went back to see him at the jail, faked as much enthusiasm as I could muster, and declared, "Good news! They found fingerprints on the gun!" He stared at me stunned and confused, so I continued.
"Well, when we first met, you told me that you never touched the gun," I reminded him with an encouraging smile. "Obviously you wouldn't lie to your own lawyer, and so what I can do is get a fingerprint expert to come to the jail, take your prints, then do a comparison on the gun itself. Since you never touched the gun, the prints won't be a match! This whole case will get dismissed, and we can put all this behind you!"[2]
He was still reeling but realized I was waiting for a response. "You. . . don't need to do that," he muttered. I had the confirmation I was looking for, but I pressed him while maintaining the facade of earnest congeniality.
"But why not?" I sang in staccato, smile wide. "You told me. That. You. Never. Touch any guns."
Turned out Marcel might have accidentally touched the gun. So his prints could be on it. I had made my point, so I dropped the act. I explained to Marcel that the only thing lying to me accomplishes is to slow things down and worsen his own prospects --- how could I pursue any potentially helpful leads for his defense when I couldn't be sure I wasn't about to bumble into an incriminating revelation?
Marcel nodded sagely and claimed to understand, but he went on to lie to me many more times over the next two years that I remained his attorney. Marcel has and will spend the majority of his adult life in prison --- not necessarily because he lied to me but that certainly didn't help.
My first meeting with Kyle was useless. He insisted throughout that it wasn't him, that he wasn't even there. Now, personally speaking, if several witnesses claimed to have seen someone who looks like me, in my car, with my girlfriend in the front seat, commit a drive-by shooting in broad daylight, I would summon slightly more curiosity about who this apparent doppelganger might be. But Kyle gave me no leads, pantomiming an internal agony about not wanting to be a snitch, clutching at his stomach as if the mere thought was physically unbearable.
His tune eventually changed. "I need you to tell the prosecutor who was driving my car," he said."His name is Richie Bottoms." If the name hadn't given it away, I already knew where this was going,[3] and I was excited for the coming entertainment. I pretended to be enthused by his revelation, and let Kyle know that I had a "really great" investigator who's phenomenal at tracking "anyone" down --- even the elusive Dick Bottoms.
Based on his reaction, that wasn't the response Kyle expected; another illustration of a myopic theory of mind (not uncommon among the interpersonally inept) incapable of simulating anything but affirmation. He tensed up momentarily, but realized that he'd already committed himself to acting out a demeanor congruent with the "innocent client responds to helpful attorney" fantasy. Yet the only excuse he could muster up in the moment was that Richie wouldn't be found because he fled to Los Angeles.
I maintained what must have been an obnoxious level of optimism, explaining how "perfect" that was because my investigator "knew lots of people" there. My job affords me few if any moments of joy, and so forgive me if I overindulged in Kyle's vexation. I'll spare you a full accounting of the myriad reasons he gave why tracking down Sir Bottoms was a lost cause. Suffice to say that in addition to being out of state, Richie had maybe fled the country; also, Richie happens to look almost identical to Kyle, but also we might not even know his real name since he went by "Arby," and no one had his phone number, et cetera. . .
Even when we moved on to other topics, Kyle couldn't let it go, interrupting whatever we were talking about to repeat warnings about how tracking down Richie was going to be a total waste of time for my investigator and me. He was palpably angry, but had no viable outlet for his frustration, and so he just stewed, stuck with his lie. I kept my poker face. It's a stark contrast to my factually innocent clients, who cannot help but drown me with leads to pursue in the hopes that any are helpful.
The whole thing reminded me of Carl Sagan's parable of the dragon in his garage as a critique of certain unprovable religious beliefs. Can I see the dragon? No, it's invisible. Can I detect its fire's thermal image? No, the fire is heatless. Can I find Dick in Los Angeles? No, because now he fled the country.
There's always some excuse --- there's always some eject button allowing my defendants to evade specific evidence demands. No matter how ridiculous.
It's banal for my clients to deny the accusations, but a special breed takes denial to the next level by waging total jihad against their accusers. It's a sort of a reverse counterpart to the Narcissist's Prayer:
If they claim I was driving during the hit-and-run, they're lying. And if they're liars, then they exaggerated their injuries. And they're exaggerating because they're after an insurance payday. And we know they're after a payday because they sued their dry cleaners in 1993. And they're framing me to get money, which is how we know they're lying.
In these clients' telling, nothing is their fault. The random bystanders who randomly drew the unlucky witness card become a convenient scapegoat. Yet these clients are so myopically overwhelmed by the desire to bounce the rubble on a witness's credibility, they don't notice how implausible their story becomes with each new clause they tape onto their fabulist's scrapbook.[4]
Sometimes clients are self-aware enough to couch their denials in innuendo. Ivan, who was accused of [redacted], was waging the same Total War approach against Cindy, a social worker at the homeless shelter where Ivan regularly stayed. Cindy was a dangerous witness --- an uninvolved, respected professional who severely undercut Ivan's alibi defense about having never left the shelter to go on his [redacted] spree.
In yet another of our jail rendezvous, Ivan expounded at length about how Cindy's testimony was invalid because, as a social worker, she would be violating HIPAA.[5] The glaze over my eyes must have gotten too obvious for me to hide, so he switched tack, shuffled through his jail-sanctioned filing system (read: pile), and slid a flyer across the table about trash cleanup day at the shelter, with a smiling cartoon trash can picking up a baby garbage bag while announcing "Pick up a little trash, talk a little trash." It's cute, but what the fuck was I supposed to be looking at? Ivan stared at me grinning and expectant, but his demeanor quickly turned into disappointment at my ongoing silence. He snatched the flyer out of my hand and jammed his finger at the "talk a little trash" clause. "This!" he shouted, and then just stared at me again. I looked at the words that meant so much to him and nothing to me and just said, "Huh?"
His disappointment transmogrified into astonished anger. "Do I have to fucking spell it out for you?" he screamed. "I thought you were the lawyer here!" We had been ping-ponging across various aspects of his case for the last hour or so and I gave up on any posturing and reiterated my ignorance at the significance of the cartoon flyer. Ivan snapped, "Cindy is encouraging people to trash talk!" For, you see, she wrote the flyer. "I'm trying to show you that she's a fucking punk! And a liar!"
I immediately understood why Ivan was so attached to remaining within the realm of innuendo. Because as soon as he gave his claim some body ("We should infer lack of credibility from individuals when they author flyers that include garbage-related puns"), he knew how much of a dumbass he would sound like out loud.
Ivan moved on from the flyer, and instead asked how to disqualify a witness "for being a liar." I tell him that's not a thing,[6] which sent him into a further rage. "I need you to be on my side here but all I hear from you is 'NO.' Why are you working for the prosecutors?"
The manipulation attempts we just cataloged were comically inept, and fell apart with far less effort than it took to create them. Slightly more polished versions of these charades are regularly deployed within the Discourse™ but they're equally hollow and just as pathetic. So those are some of my clients --- individuals who cannot rise to the level of your average internet troll.
[1] There is a kernel of an exception that is almost not worth mentioning. The Rules of Professional Conduct 3.3 obligates me with the duty of candor. I am not allowed to present evidence that I "know" is false, which encompasses witness testimony. Some jurisdictions make exceptions to this rule for defendants testifying in their criminal trial (correctly, IMO) but not all. So assuming that a client truthfully confesses to me, assuming we go to trial, assuming they decide to testify, and assuming I "know" they're going to lie, then yes, this could indeed spawn a very awkward situation where I'm forced to withdraw in the middle of proceedings.
[2] I'm told I put on a good poker face.
[3] There was no Richie Bottoms.
[4] For example, Kyle asked if it was possible to present self-defense evidence on behalf of "Richie Bottoms," just in case.
[5] Does this sound familiar to anyone?
[6] During the editing process, Jesse was skeptical of this. "Wait," he asked me in a Google Doc comment, "there's NO way for one side to prove to a judge that a witness is so untrustworthy the jurors/judge shouldn't consider their testimony?" Correct. The closest rule is disqualifying a witness as incompetent, either for being too young, severely mentally ill or mentally retarded, or too intoxicated (on the witness stand!). Credibility is up to the judge/jury to decide, and if a witness has a history of lying, then it makes for a very easy credibility impeachment. Theoretically, in extremely rare circumstances, a judge could strike the testimony of a witness or find them in contempt, but they'd have to be seriously flagrant about their lying under oath. I have never heard of this happening.
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Notes -
Denials - even very stupid denials - might be an adaptive strategy in most circumstances. Denials can stop a fact (especially a negative one) from becoming legible to institutions.
The way I'm thinking about this, organizations (eg, "the local high-school" / "Starbucks" / "the hardware store") aren't people. They can't see stuff or draw 'obvious' conclusions the way that a human could draw conclusions. Instead, organizations - particularly big ones - need to have formal or semi-formal fact-finding processes where reality is summarized in an 'official' report.
Trials are just one instance. When the government wants to learn a fact ("Did Kinoite steal a sack of roofing tiles from the hardware store?") there needs to be a process. The government collects a record of facts. Maybe it presents them to a judge. The judge looks over the record and fills out a form saying "Guilty" or "Not Guilty." Going forward, as far as the government is concerned, the 'truth' of my guilt comes down to whatever was written on the form. God, all of his angels, and the entire tabernacle choir could have seen me walking out of the store with those tiles, but if the judge checks "Not Guilty" then every future government interaction will proceed as if I'm a good, innocent person.
Trials are also a little unique in that the government is motivated to drive the process to completion. The court system is also unique in its willingness to stick to decisions once they're made, absent rare and difficult appeals.
I think a lot of other institutions might not bother to complete their "fact-finding" process. Going back to the hardware store, if I'm an employee, there's a potentially huge different in outcomes for me along the following gradient:
In the moment, the difference seems to be "fired' vs "not fired." But, consider what happens if I re-apply for a job a few years down the road when my ex-manager has quit. In the second case, ("fired on the spot") the ex-manager might have been 100% certain that I stole roofing tiles. The evidence that existed at the time might have me dead-to-rights. But, if all that's left of our exchange is a series of emails reading:
What's the hardware store to do with that information?
My old manager is gone, and the choir members have returned to Salt Lake, the new store manager is left with a He-Said/She-Said dispute and some text where an ex-manager claimed to have once possessed video. In terms of institutional legibility, the hardware store doesn't know I'm a thief, they know I'm an alleged thief. Maybe the new manager will make a decision that I'm unhireable. Maybe they won't.
Contrast that with a world where I admitted, in writing, to the theft. In that case, I've stipulated to the truth of the accusation and, for whatever reason, institutions seem to like accepting that kind of stipulation.
While my hardware store example might be a bit silly, consider a more realistic scenario where some kids are sent into a principal's office for fighting. If the kids admit to having been in a fight, then they'll get punished for fighting.
If the kids invent a lie - even a very stupid lie - there's a chance they could evade or mitigate punishment, particularly if they have the backing of their parents. When the parent arrives at the school, the direct evidence (Mrs Grundy saw a fight) has gone through at least one level of indirection (Principle Skinner is meeting with the parents and reporting his conversation of Mrs Grundy). If the parents escalate the issue, then the attenuation gets worse; the school board might be reading a report, in which Principle Skinner records that Mrs Grundy claims she saw the kids fighting.
In the moment, a stupid lie ("We weren't fighting! He just slipped on some playground equipment. I was helping him up") won't convince Mrs Grundy. She knows what she saw. The school board, in contrast, has a written report that summarizes a memory of a conversation. As far as they know, maybe Mrs Grundy was mistaken.
Again, if institutions really wanted, they could do mini-trials and call in witnesses, and make a proper record of each of their factual determinations. But trials burn weeks of time to get to a single Yes/No decision, so most often, institutions don't bother and allegations live in some weird half-determined state unless someone is dumb enough to admit to wrongdoing.
So, this sort of obvious lying might be adaptive and only becomes a problem in the very counter-intuitive world of courts.
I have a formative childhood memory of exactly that sort of thing happening. I was roughhousing with a friend of mine, in the type of way that it was very unlikely either of us would get seriously hurt, but was still very much against the school rules. I remember then a parent volunteer caught us in a way that she didn't didn't directly witness it but it was very obvious to everyone what happened- I don't remember exactly how, but it was probably something like hearing a yelp and then turning the corner to see my friend with a bruise. When she interrogated us, I stayed quiet and my friend insisted he just walked into a pole- despite no poles being nearby. We both got off scott free.
John, an old friend if mine, once answered the door for a bill collector who asked him, "are you John Doe?" He claims he replied, "My name is Bruce Wayne."
While wearing a Batman tee shirt.
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You're on point with this. This is also why many states offer the ability to "seal" and/or "expunge" your criminal records... conditional on not committing particularly severe offenses.
With an expunged record you can truthfully state that you "have no criminal record" and have no convictions or even arrests that might turn up on a background check. And indeed, a standard background check would not turn up any such incident.
This matters a lot if you're a young person who got pinned for a misdemeanor and doesn't want to have this interfere with your attempts to kick off your career. Also why Judges sometimes employ leniency with young persons even when the offense is rather heinous, because someone is unlikely to return to the straight-and-narrow ever again if an early conviction cuts off most legitimate employment.
The next best thing is to have a plea of 'not guilty' on your record and as you say a consistent pattern of denials even if ultimately you get found guilty. You can at least claim that there was some crooked prosecutor or corrupt cops who fabricated evidence (it happens) and railroaded you for [reasons] and that you genuinely to this day protest your innocence.
This stops working very quickly the longer your rap sheet gets.
The other practical reason to stay in denial mode is because if you get caught on tape or within earshot of a reliable witness admitting guilt, that confession mostly torpedoes your ability to negotiate with the prosecutor because that confession, if admissible, simplifies their job immensely and means they are more willing to take the case to a jury and use your own words against you.
So if you risk possibly incriminating yourself by uttering a confession in any context, its safer to lie to every single person you interact with so none of them turn up on the witness stand later, and ONLY be willing to admit guilt after a favorable plea bargain has been obtained.
Incidentally, there's your logic for why the fifth amendment enshrines a right against self-incrimination.
The problem is, if every guy says he's innocent even as he's five years into his jail sentence, and everyone knows that "all prisoners claim to be innocent", then it poisons the chances in the cases where the guy really is innocent. Everyone from cops to judges knows that the guilty guys all claim to be innocent, so why should they take your assertion that no you really did not do it seriously?
That's how we get caught with "just plead guilty, even if you really didn't do it, and the prosecutor will cut a deal but if you insist on going to trial, they will throw the book at you" procedures to clear backlogs and keep the court system working in some fashion, and why people who deal with the public at these levels quickly become hardened and cynical. Yeah, yeah: you claim you need a wheelchair for mobility purposes, you're number three hundred in the list of people who want wheelchairs even though they can walk perfectly well, but if they have a disability diagnosis they get special accommodations/extra benefits. Even if that person does need a wheelchair for times when they can't walk, but other times they manage to be mobile without it, they get lumped in with the rest of the liars. All due to "it's better if you start lying to keep lying to everyone and never admit anything even when you're caught out" practical reasoning.
There’s the old joke of a governor interviewing prisoners, determining why they were incarcerated. After prisoner after prisoner professed their innocence, one prisoner said he was in jail for theft. The warden quickly proclaims, release this man from jail, before he corrupts all these innocent men.
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I mean, there's a reason the most classic of game theory 'traps' is called "The prisoner's dilemma."
There are points on the payoff matrix that make sense for individual facing down a possible jail sentence when they can't trust anyone else in the system to cooperate with them. Even if there is clearly a better overall point you can get to (Guilty people cop to it immediately, innocent people keep denying and hopefully get released) there's very little incentive for any individual player to try to move the matrix there.
The incentives are what the incentives are. Moloch goes brrrrrrrrrr. I can say that when I was working as a Public Defender I told people who seemed vehement in their protestations of innocence and had some valid defense that they really ought to push their case all the way to trial and FORCE the state to really consider the strength of the evidence when offering a plea.
Perhaps the worst problem is that there's very little evidence that jail time has a rehabilitative effect and thus we'd only want to send the very worst persons who need to be separated from civil society there, but we aren't that great at selecting, via the justice system, ONLY the people who are too dangerous to leave free.
The last little thing that we DO have in the U.S. that at least provides a release valve: The presumption of innocence and the right to remain silent.
If you are indeed innocent, it actually makes more sense to hold your peace and refuse to comment one way or the other and force the state to attempt to put together a case to convict you completely de novo. If you make no statements, then there's no way for them to catch you in a lie or contradiction.
If we could magically make it so that EVERY single criminal defendant would shut up and remain silent about their charges for the duration of the case, then IN THEORY the state should end up convicting, on the surrounding evidence alone, only those who are actually in fact guilty, whereas those who are innocent will also avoid accidentally making a statement which harms their case and thus are more likely on average to be found innocent.
This assumes there aren't actually corrupt cops or prosecutors in the mix.
Trick is, people with that level of self-control and conscientiousness probably won't be committing crimes in the first place.
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Well yeah, if criminals had the moral wiring and foresight to dodge "tragedy of the commons" scenarios, they wouldn't be criminals.
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