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A Drowning Man

When I was young and a Boy Scout, I worked hard to earn, among others, my Lifesaving merit badge.

There may be lots of situations in which a life needs to be saved, but the Boy Scout Lifesaving merit badge focuses on saving drowning people. One of the things you learn is “[h]ow rescue techniques vary depending on the setting and the condition of the person needing assistance.” Along the way to earning the badge, you have to “[e]xplain the importance of avoiding contact with an active victim and describe lead-and-wait tactics.”

As a criminal defense attorney, I’m having to re-learn these things.

When I was a Boy Scout, earning my Lifesaving merit badge, I learned about the ways people got themselves into trouble in the water (“[c]ommon drowning situations and how to prevent them”). Accidents happen, but sometimes the deliberate acts of people got them in over their heads. They wanted something and they thought they knew a way to get it, only to find themselves in deep water.

The job of being a criminal defense attorney is the job of saving drowning people. In the great pool of life, accidents happen; but often it is the deliberate acts of people who want something and go about getting it in the wrong way which gets them in over their heads.

As when I was a Boy Scout, working on that badge, there are things to be aware of when saving drowning people. They’re often scared. They think they know what to do to save themselves.

If you are not careful, they will kill themselves — and you — as they attempt to do those things.

If you get too close, a drowning person will latch onto you with all the fierceness of, well, a drowning person. They will fight to pull themselves up by pulling you down. They will grab you and they will not let go. They will not be thinking that they do not know how to swim and you do. They will not relax. They will not let go. They will not allow you to do what needs to be done.

Your job is to try to save them, without being drowned yourself. You must learn how to approach.

One of the tricks is to move rapidly towards them, ducking underwater (and thence out of their reach) just as you approach. Grab the drowning person’s legs and try to turn them so that they are facing away from you. You can’t let them get too close when you are face-to-face, because they will try to grab you and both of you will go under.

Then it will be a fight to see who, if anyone, is coming out on top.

As a criminal defense attorney, I’m still learning that last trick. One of the most common complaints of clients and their families is that they don’t get enough face-time with their attorneys. I’ve seen this as a failure on the part of those attorneys. The families and clients cry out for help. “Save me!” “Save him!” “Save her!” “Save them!” There is a great temptation to give them as much face-time as possible, letting them see that you are there.

This week, I did not dive under quickly enough. I let myself get too close. For one thing, I became intoxicated over the fact that I managed to muscle my way past the sharks circling my target. I got into a closed police station and stopped an interrogation before it started. This does not happen very often. Too often defense attorneys get there too late. Our clients have already sunk themselves with too many words. The police do not want to let us near our clients; they will block us off. (In this case, they had gone so far as to tell the family that their loved one was not even there, though we all knew he was.) But this week, I was there on time; I got in; I stopped the interrogation. I felt good.

But I forgot that getting through to my drowning client was just part of the job. I made it past the sharks, but I still had to get him to shore. I forgot to turn him, so that he could not grab onto me and drag me down with him. His family screamed from the beach. I let them distract me.

Here is where the analogy breaks down a little bit, but not completely. The drowning person believes he knows how to save himself. His family believes he knows how to save himself (and that they, too, have some good ideas about it).

I got my investigative team started, but I myself was face-to-face with everyone for too long. They were not happy that I did not see things theirway. I “needed” to look at this, and this, and this. How could he be in danger of drowning, when such-and-such — a relatively minor fact that did not really assist his case at all — was true?

When I told them the things they were focusing on would not save him, they thought I did not believe in his innocence. This was important to him, even though I explained that it did not matter to me. I even tried to explain that it was my job to deliberately develop doubts about the case — the same sorts of doubts that a jury might develop — so that I could recognize the problems that needed to be targeted, where more investigation was needed. Part of my job is to question things as if I were a prosecutor, so that I can be prepared for those things which a prosecutor will ask a jury to question.

They decided to look for another lifeguard. “One with more experience.” One who would recognize that he could not have done what he was accused of doing because they said he didn’t. One who believed in him.

I’ll survive. I got away. I — and my team — will not escape completely unscathed, though. There is the pain of seeing a drowning person who will not let you help. There is the knowledge that time matters; the investigation was in full swing; the sharks still circle. We got to some of the witnesses, including the young alleged victim, before the police told them not to talk to us. But now, while they await another lifeguard, the defense investigation has stopped.

There is also the knowledge that, this time, there will be no pay-off. Not only will they likely not keep their word — no small part of our disagreements this week came out of my attempts to convince them that lying to your attorney is not a good thing, because it sends him off in the wrong direction and potentially costs him credibility with courts, opponents and jurors — to pay what is due of my fee, or even the investigative costs that accrued this past week, but there will be no thanks. There will be no good feeling that comes from saving a drowning person. This one is lost (at least to me and my team).

I earn no badge today.

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