Another tale from a previous life

This was the only time, to date, that I was ever accused of ineffective assistance of counsel.

Before moving back to Michigan, I was a public defender in Keene, NH (home of the Pumpkin Fest). While you might think that Keene was an idyllic small town, there were still a fair amount of crimes, and indigent people, requiring my services.  There was a fair amount of DWI, some domestic assaults, and a large share of heroin possession/trafficking-  in large part because of the proximity to Interstate 91, which was the north-south conduit from Montreal to New York City.  Additionally, the impact of Oxycontin on the rural population (about which more in a different post) contributed to the drug problems.   We covered 2 counties, and were fairly busy.

One particular day I get a call to go meet with a client who’d been charged on very serious charges, and was a guest of the state.  I roll up to the jail, zip into my usual meeting room, and meet my client, Mr. C. He’s a 20 something kid, who’s facing 14-16 serious felonies. He’s looking at the rest of his life behind bars if this goes badly.

The story is this:
My client is a “nonconformist”. NH gets a lot of over the top libertarian types- guys who trust the government not one whit. On the date in question, he’s at home. Not far away, across the border in Massachusetts. in the town of Winchendon, a murder’s been committed. The Winchendon cops think they know who did it, and they think they know where the person is. They think that the shooter is at my client’s house. So, Winchendon PD calls Keene PD, and says, “we’re looking for John Brown, for this murder.” The Keene cops go and get a warrant to find this alleged shooter.

The warrant says that they’re looking for “the person of John Brown.” That’s it. This will be important later. The warrant is for Mr. C’s address.

So, the Keene cops go to Mr. C’s house, knock on the door. After a while, Mr. C comes out, with his hands up. He sits by the cop car. When the cops ask him about John Brown, Mr. C says “I’m not resisting, I’m not hindering, but I won’t help you. I’m a nonconformist.”

The cops have the place surrounded, all staked out.

Before anything else can happen, a guy comes out of the house, pulls the door shut behind him, puts his hands up, and says, “I’m John Brown.” He shows ID confirming that he is, in fact, John Brown. The Keene police now have John Brown in custody, and Mr. C is sitting quietly next to the cop car with his hands on his head.

Now, remember the language of the warrant? “the person of John Brown”? Keep that in mind.

What the cops SHOULD have done:
told Mr. C that he was free to go, and left the property.

What the cops COULD have done:
had a warrant for “the person of John Brown, and a gun”.

What the cops DID do:
Went into the house to “secure the premises”.

What did they find in there? The largest seizure of drugs that had ever occurred in Cheshire County to that point. Multiple pounds of cocaine, and heroin, and I think 50-60 giant marijuana plants, plus multiple illegal guns, and a couple of bombs, for good measure. This is a BIG story out there- it’s the biggest bust in forever.


That’s when I get involved.
So, after meeting with Mr. C, and getting the details and the documents from the cops, I realize that they screwed the pooch. BAD. This was all an illegal search.
Once John Brown comes out of the house, the purpose of the warrant is fulfilled. Anything else they do is beyond the scope of the warrant. It’s all illegal, and it isn’t really close under NH law.

I spend the entire night writing the best fucking suppression motion of my career, and file it with the court the next day. I hand deliver it to the prosecutor, because I’m an asshole like that. We’re scheduled for hearing at the end of the week, and I go to my client in jail, and tell him to be cool, because I really like our chances for getting him out.

While waiting for the hearing, I get a call from the prosecutor, who suggests I come visit him in his office. He sounds really, really happy.

I go and visit the prosecutor in his office, and he tells me that I have a problem with Mr. C’s case. I say, “what?”

He says that it’s probably true that I’ll win the suppression motion. Unfortunately for me, Mr. C has expressed his displeasure with his confinement in an unproductive manner.
How’s that?

Well, I’m glad you asked. It seems he jammed one foot in the toilet, and another over the drain. He then started flushing the toilet, and the sink, flooding his cell.
When the guard came down the hall to see what the fuck was going on, Mr. C reacted poorly.

Apparently, telling the guard that “my lawyer’s going to get me out, and I’m going to come back here and cut your fucking head off and use it to play soccer up and down the hall of the jail cell” was frowned upon in that establishment.

In addition to making one a poor guest, it also makes one susceptible to felony “threatening a law official” charge. Particularly when one repeats it to the second guard who came down the hall afterward. So now we have multiple counts, with witnesses.


It’s “let’s make a deal” time. I wind up working out a really great deal for the guy- the prosecutor wants him to plead to some of the possession charges, but the ultimate deal is time served, and probation. He had to plead to 2 felonies, but all in all this is a SWEETHEART deal.  This guy will be getting time served.  This is excellent lawyering on my part.

Here’s where things go off the rails.
In NH, as with many other jurisdictions, there’s a gap between a plea and sentencing, so that probation can do an investigation and issue a report. We do the plea, and during the colloquy I ask him if anyone is coercing his plea, and if he’s satisfied with my representation, and if he understands the consequences of the plea. Yup, yup, yup.
Now all he has to do is wait 3 weeks, and he’ll be sentenced and out of jail.

Anyone wanna bet on how well this is going to go?

In the meantime, Mr. C is mostly being cool. I visit him a couple of times, to make sure he’s staying cool. He’s so thankful for the job I did for him

Then his father visits him in jail. His fucking father.

Daddy dearest convinces him that “a real lawyer” could do better than his public defender, who’s a tool of the state, man. Daddy dearest thinks that I’ve sold him down the fucking river.

Problem: the only way to vacate the plea? To allege that I’ve provided ineffective assistance of counsel. At the time of the plea, he acknowledged it was knowing and voluntary. So, he’s gotta throw me under the bus.

Fine, whatever. I withdraw, and one of the private attorneys gets appointed. The plea is withdrawn, and because new attorney doesn’t know the case, everything is pushed back like 3 months. While Mr. C sits in jail. I show up at his ultimate sentencing, at which time he gets a deal that’s worse than what I got for him (including the extra three months of custody).


There’s a coda;

Like 6-8 months later, I’m in court, and I see that he’s in custody on a probation violation. Now the Keene District Court at that time was on the second floor of a multi-use facility building- the kind that has those folding walls so that the room can be multiple sizes. It’s not a secure facility. Anyway, I can’t represent him on the probation violation, because of the prior ineffective claim. So I say, hey, Mr. C, what’s up? and then leave.

I get a call from Pat, the clerk of court, as soon as I get back to my office. Keene is a classic New England town- there’s a white steepled church, and a public square. The church is at 12 o’clock on the dial, the court is at, say 2 o’clock, and my office is at 8 o’clock across the square.

Pat says, “JASON. GO TO THE FRONT WINDOW OF YOUR OFFICE, NOW.” And promptly hangs up.

What do I see when I get to the window? Mr. C, dressed in his orange detainee jumpsuit, shackled at the wrist and at the ankles, trying to run across the square, his feet going as fast as they’ll go. In hot pursuit was Smitty, the bailiff, who was about 5’9″, 320 lbs. Smitty would get closer and closer to Mr. C, and just when he was gonna jump, Mr. C would zig. Smitty’d go down, and then the process would repeat itself. Finally, they caught Mr. C.

Last I heard, he was in state prison.



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