Chapter 9 Successful Relationship with a Capital Client: the Paramount Responsibility of the Lawyer

• Library: Tell the Client's Story: Mitigation in Criminal and Death Penalty Cases (ABA) (2017 Ed.)

CHAPTER 9 Successful Relationship with a Capital Client: The Paramount Responsibility of the Lawyer

Margaret O'Donnell

Introduction

This chapter provides defense teams with a conceptual and practical guide to building a successful relationship with a capital client, whose judgment, insight, and thinking are likely compromised by mental illness,¹ intellectual disabilities, trauma, stress, and anxiety as well as by general inexperience and/or distrust of the criminal justice system. Capital defense teams must sometimes overcome the bad experiences that the client had with predecessor teams in other cases and even in the very same capital case (perhaps before it became a death case or perhaps upon a change of the defense team). Establishing a trusting and respectful client relationship, although often challenging, is essential to representation of a capital client.

Although the lawyers are ultimately responsible for the overall direction of the representation, defending a capital client is a team effort. When establishing a successful client relationship, consideration must be given to the roles all team members (attorneys, paralegals, mitigation specialists, and fact investigators) can and must play in building and maintaining that relationship.

A solid client relationship not only facilitates access to the richness of the client's life narrative but also helps a client avoid self-destructive behaviors that can make a death sentence more likely and enables the client to develop a reason to live. Ultimately, such a relationship is key to providing the client with realistic hope.

This chapter is informed by the compassionate commitment of defense teams that have successfully created a client-centered standard of care that allows their clients to envision a future beyond their capital cases.

Forming and Maintaining a Positive Relationship with the Client: Trust, Time, Unified, Client-Centered

The national standard on client relationships in capital cases is well-established. Guideline 10.5 of the American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (ABA Guidelines) and supporting commentary mandate that the lawyer must develop an "essential" trusting relationship with the client, must "maintain close contact" with the client, and must "engage in continuing interactive dialogue" with the client.²

Overcoming barriers to communication and establishing a rapport with the client, however, takes time and requires consistency.³ Even apart from the need to obtain vital information, the legal team must understand the client and client's life story. To communicate effectively on the client's behalf in negotiating a plea or addressing a jury, counsel must be able to humanize the client. This cannot be accomplished unless the legal team knows the client well enough to be able to convey a sense of truly caring about what happens to the client.

Forging a meaningful relationship involves patience, listening, empathizing, and partnering with clients and those who care about them. This effort requires understanding cultural differences as well as the ability to take into account the consequences of a lifetime of adverse events; maltreatment and neglect; abandonment; and likely impaired cognitive, emotional, social, and psychological functioning; self-loathing; and deep mistrust of others, especially authority figures. Even for those clients who are perhaps not as obviously impaired, mistrust is rampant in criminal defense representation, with defendants often perceiving their lawyers (sometimes not unreasonably) as part of the system that is trying to screw them. Establishing a relationship also requires recognition that most clients possess strengths alongside weaknesses.

Given the limitations of this chapter, an in-depth review of culture-related considerations is not possible. It is safe, however, to suggest that the cultural divide between most clients and their defense teams is wide, whether it be race, ethnicity, language, socioeconomic, class, education, gender, sexual orientation, or religion based. Respectfully recognizing these differences, seeking to understand the ethnocultural context, and forming culturally diverse legal teams can go a long way to establishing a trusting attorney—client relationship and then effectively engaging, communicating with, and forming a productive relationship with the client.⁴

Create Trust

If a client is unable to engage meaningfully with his or her legal team, this can create significant hurdles, starting with the client perhaps hindering efforts to conduct life history investigations, which invariably probe the most sensitive aspects of the client's life. It is not uncommon for a client to tell family members and friends not to cooperate with the lawyers. If this roadblock is not addressed early and effectively, it not only can hamper discovery of the client's life story but also can possibly lead the client to bar the presentation of some or even all mitigating evidence and even cause the client to affirmatively seek a death sentence.⁵

Trust is also necessary, often at a much later stage in the case, to effectively engage a client in difficult discussions about the possibility of pleading guilty to a life with no parole sentence. Clients who do not trust their legal teams often have little interest in even discussing pleas. Conversely, teams that have strong relationships with their clients have likely already ascertained what is important to the client, including the client's specific concerns about a life sentence, and have a sufficiently strong relationship to forge ahead with potentially thorny plea discussions.⁶

Treating clients with respect, listening and responding to their concerns, as well as keeping them informed about the progress of the case can evoke both confidence and cooperation. This involves so much more than just clocking time with the client or talking superficially. It involves taking the time to hear what the client is saying and to truly understand.

Working the case earns the clients trust. Filing motions and watching a zealous advocate in action, especially in the courtroom examining witnesses, is inspiring to a client. Many clients care about investigation, and they know through family and friends when members of their legal team are out checking alibis, visiting the crime scene, and talking to witnesses. Pursuing the client's leads and suggestions, even those that seem farfetched, may prove futile, but such efforts build credibility that will likely bear fruit at some later stage in the case.

Time with the Client

All members of the team (lawyers and nonlawyers) are responsible for routinely and dependably spending time with the client. But it is the attorneys who must convey the client's humanity to decision makers, and this is not possible if the lawyers do not even know the client. In other words, the mitigation specialist or fact investigator should never be the primary team member visiting the client and should not be the primary source of information about the client for the attorneys.

Communicate with the client primarily and substantively through in-person visits.⁷ To the extent that jail and prisons impede such contact—whether by failing to provide convenient and confidential arrangements for visits or restricting the access of nonattor-ney defense team members and access to quality legal representation required in capital cases, counsel should endeavor to rectify any such barriers. See United States v. Mikhel, 552 F.3d 961 (9th Cir. 2009) (modification of Special Administrative Measures warranted to permit attorney to use interpreter when meeting with client, to allow attorney's investigators to disseminate client's communications, and to allow attorney's investigator to meet with client).⁸

To facilitate regular communication, consider making a schedule about who (both on and off the team) will visit and when, and then stick to the schedule. Whether the schedule is made weekly, monthly, at the outset of the case, or changes through the life of the case will depend on the manner in which the team functions and the client's needs. Some clients need weekly contact, others not so frequently. The needs of the client and the case should dictate the frequency with which the visits occur. Sometimes, distance from where the client is housed makes weekly visits impractical.⁹ In such cases, routinely scheduled telephone calls (preferably privileged) can bridge the time between visits.

A scheduled routine will keep the team committed to building and maintaining the client relationship rather than getting sidetracked with other matters only to realize that it has been weeks or even months since anyone visited the client. The client will appreciate the dedication and commitment to the relationship. Clients often judge team members by whether they keep small promises—to call a family member, research something on the Internet, or visit again on a certain date. Team members should communicate to the client, in a timely manner, that they have performed the requested task. Remaining mindful about promises made to the client strengthens credibility.

Recognize that all team members will not necessarily have the same type of relationship with the client. This is to be expected, but each team member should endeavor to form his or her own relationship with the client, always keeping in mind the goals of the team for the relationship and for the overall case. The team must speak with a unified voice. The client will often want to hear from all the team members before making momentous decisions, such as whether to plead guilty, and may have greater trust in a nonlawyer who has had better success in building rapport and overcoming divisive barriers. However, it is crucial that there be no mixed messages or inconsistent signals within the team that are conveyed to the client. If the team has issues, do not involve the...