Suddenly
Unregistered
S
One of the more interesting parts of my occupation is when I get a new file and get to go to the prison and meet a new smiling face. Some of the cases I get are where an inmate is petitioning for a Writ of Habeas Corpus, a legal fiction the upshot of which is that the prisoner is arguing that he (Clients trend 99% male) is being held illegally, as his trial had constitutional error.
These things generally start with a skeleton petition, where the prisoner lays out his case. If the judge thinks there is any merit to the claim, counsel is appointed to handle the claim. Usually this sort of thing takes several tries. Often the case ends up in my hands after a prisoner has filed 6 or 7 of these petitions over on average 10 years. So it has been a while since the trial and the events leading up to the trial.
My point? The disconnect between what these clients believe happened at trial vs. what the transcripts, orders, and correspondence say. Sometimes it is amazing. At first the inclination by the attorney is to believe that the client is flat lying, and badly at that. Some examples.
-Client pleads guilty. Sentenced to 40 years. Claims up and down there is a binding deal to no more than 20. There are transcripts, letters, pleadings and even a signed agreement that the prosecutor would recommend 40 years, which is not even binding, as the offense in question has no maximum term.
-Client says nobody has yet, in the 25 years he's been in jail, given him a copy of the transcript of the trial. Attorney goes to the courthouse, has the transcript copied from the file and hands it to client. Client goes into a blind rage, screaming that the attorney "is in on it too" because this is another doctored transcript.
-Client claims that person X would have delivered testimony that would prove his innocence. Person X, when asked, says client is nuts, and that he doesn't doubt for a second client is guilty.
I could go on, but the point is that these people are speaking contrary to established reality. The rookie mistake for a lawyer is to go in, guns blazing and accuse the client of lying. This is wrong as even if the client is lying, what makes you think he will admit it? This is a good way to make a mess out of the case and poison all future attempts at communication. In my experience most of these people are not "lying" in that they are being willfully untruthful. They actually tend to believe what they claim. This led me to the following theory.
One of the bedrock concepts in epistemology is "Occam's Razor", which in general holds that one should accept as true only the simplest valid explaination for a collection of data.
Thus, if the prisoners above used this principle, when confronted with the choice between mistaken memory, and a statewide conspiracy to hide the truth and keep them wrongfully in jail, would chose the former as it is simpler, and fully explains the difference between belief and evidence.
However, this is not what happens. What happens is "Macco's Razor" is applied. This holds that one should accept as true only the explaination for a set of data that leads to relief from confinement. Thus the conspracy is taken as true.
It occurs to me that this will happen any time there is a profound emotional investment in a particular outcome. The person honestly believes the facts according to utility, rather than reality.
So, how do you go about telling such a person that the path they want to follow, proving the existence of the conspiracy, is not in their best interests and an argument using the facts they contest is the better approach?
I've always followed the same approach. I tell the client that I am not concerned with the truth of the matter, rather I am only concerned with what I can prove by evidence. I think it important to remove the issue of credibility from the equation at the begining, without professing belief in the clients delusions. The latter is both for ethical reasons (don't want to lie to a client) and just in case the client is a manipulative liar he will understand that he does not have emotional control over you. When a client pleads with me that it is important for me to believe him, I respond by stating that I am assigned to do the best job I can to represent him, and that forming a belief that he is right will not allow me to do what I need to do, that is objectively look at the reality of the situation and give him what I believe to be in my expert opinion the best chance of getting out (Not always in those words, I tailor my comments to the clients educational level). I then get him to agree that his having the best chance to get out is the most important thing.
Thus I create a sort of a necessary fiction in which the client and I can discuss actual provable events rather than wild theories. I do some basic investigation and show why I can't prove the conspiracy, and we then move on to what is reality for me and a necessary fiction for the client, without confrontation about his veracity or epistemological shortcomings.
Just something I was thinking about regarding my visit to the pen tomorrow. Any comments or ideas? I'm trying to develop a coherent reasoning behind the many encounters with absurdity I have.
These things generally start with a skeleton petition, where the prisoner lays out his case. If the judge thinks there is any merit to the claim, counsel is appointed to handle the claim. Usually this sort of thing takes several tries. Often the case ends up in my hands after a prisoner has filed 6 or 7 of these petitions over on average 10 years. So it has been a while since the trial and the events leading up to the trial.
My point? The disconnect between what these clients believe happened at trial vs. what the transcripts, orders, and correspondence say. Sometimes it is amazing. At first the inclination by the attorney is to believe that the client is flat lying, and badly at that. Some examples.
-Client pleads guilty. Sentenced to 40 years. Claims up and down there is a binding deal to no more than 20. There are transcripts, letters, pleadings and even a signed agreement that the prosecutor would recommend 40 years, which is not even binding, as the offense in question has no maximum term.
-Client says nobody has yet, in the 25 years he's been in jail, given him a copy of the transcript of the trial. Attorney goes to the courthouse, has the transcript copied from the file and hands it to client. Client goes into a blind rage, screaming that the attorney "is in on it too" because this is another doctored transcript.
-Client claims that person X would have delivered testimony that would prove his innocence. Person X, when asked, says client is nuts, and that he doesn't doubt for a second client is guilty.
I could go on, but the point is that these people are speaking contrary to established reality. The rookie mistake for a lawyer is to go in, guns blazing and accuse the client of lying. This is wrong as even if the client is lying, what makes you think he will admit it? This is a good way to make a mess out of the case and poison all future attempts at communication. In my experience most of these people are not "lying" in that they are being willfully untruthful. They actually tend to believe what they claim. This led me to the following theory.
One of the bedrock concepts in epistemology is "Occam's Razor", which in general holds that one should accept as true only the simplest valid explaination for a collection of data.
Thus, if the prisoners above used this principle, when confronted with the choice between mistaken memory, and a statewide conspiracy to hide the truth and keep them wrongfully in jail, would chose the former as it is simpler, and fully explains the difference between belief and evidence.
However, this is not what happens. What happens is "Macco's Razor" is applied. This holds that one should accept as true only the explaination for a set of data that leads to relief from confinement. Thus the conspracy is taken as true.
It occurs to me that this will happen any time there is a profound emotional investment in a particular outcome. The person honestly believes the facts according to utility, rather than reality.
So, how do you go about telling such a person that the path they want to follow, proving the existence of the conspiracy, is not in their best interests and an argument using the facts they contest is the better approach?
I've always followed the same approach. I tell the client that I am not concerned with the truth of the matter, rather I am only concerned with what I can prove by evidence. I think it important to remove the issue of credibility from the equation at the begining, without professing belief in the clients delusions. The latter is both for ethical reasons (don't want to lie to a client) and just in case the client is a manipulative liar he will understand that he does not have emotional control over you. When a client pleads with me that it is important for me to believe him, I respond by stating that I am assigned to do the best job I can to represent him, and that forming a belief that he is right will not allow me to do what I need to do, that is objectively look at the reality of the situation and give him what I believe to be in my expert opinion the best chance of getting out (Not always in those words, I tailor my comments to the clients educational level). I then get him to agree that his having the best chance to get out is the most important thing.
Thus I create a sort of a necessary fiction in which the client and I can discuss actual provable events rather than wild theories. I do some basic investigation and show why I can't prove the conspiracy, and we then move on to what is reality for me and a necessary fiction for the client, without confrontation about his veracity or epistemological shortcomings.
Just something I was thinking about regarding my visit to the pen tomorrow. Any comments or ideas? I'm trying to develop a coherent reasoning behind the many encounters with absurdity I have.
