I’m a criminal defense attorney and a criminal investigation crashed into my family
Excerpt from Almost Innocent: From searching to saved in America’s criminal justice system by Shanti Brien (Amplify Publishing, 2021)
I knew the bleak path through the criminal justice system. In my work as a criminal appellate attorney, I witness hope and resilience; I see gratitude and self-awareness. But mostly, I lose, and my clients lose. When people hire me, they have lost at trial; they have been sentenced to prison or are already incarcerated. They write to me on scraps of paper with nubs of pencils, hoping I can create an argument strong enough to succeed where another attorney failed. The system is set up so that their convictions are upheld, and we lose. Convictions should be upheld, or else the justice system would explode with re-trials. So, I defend a young kid who’s been put away for life for being in the wrong car at the wrong time. I work really hard, and then, almost always, we lose. With this mindset, I found my family faced with a subpoena from the United States Justice Department that could lead to years of investigation, a criminal trial and maybe even prison for my husband.
This collision of my personal and professional lives happened like this. In 2011, I represented a young man from the Central Valley where I also grew up. As a late teen, Nick drove a car to a park on a sunny day to play basketball with some friends. Almost immediately upon pulling up to the park, the passenger in Nick’s car shot and killed two people. The passenger took a plea deal and served 10 years in prison. Nick went to trial, where because the prosecutor argued he was the shooter and prevented witnesses from testifying to the contrary, Nick lost and got a sentence of 77 years. I represented him in the appeal of his habeas denial in the Ninth Circuit, just one small step before the US Supreme Court. Basically, I was his last chance.
At the same time I was representing Nick, my husband’s company received a subpoena as part of an investigation by the Department of Justice into a Northern California bid rigging conspiracy around buying foreclosed homes at auction. To have the criminal justice system — and its intense power and paralyzing fear — invade my home and my family like that, threw me into a professional and personal crisis. Nick’s 77 years became unfathomable when I thought about my husband spending even a few months in prison.
I had been to prisons many times before as an attorney. Even then, they filled me with nerves and worry. My first visit as an attorney, with my own client, was to Folsom State Prison. I remember waiting in a tiny interview room, no bigger than a small bathroom. A metal door led to the general visiting room; it had a window with wire mesh. I guess the officers need to see if he attacks me, I thought.
The officer instructed me to sit in the rear of the room, my back almost against the wall; my client would sit with his back to the window. Strange, because I could get trapped there in the corner by a hulking, lunging prisoner.
I had asked the correctional officer for privacy. Most people know that sex offenders are the dregs of the prison. Child molestation would be the worst offense imaginable, in terms of an inmate’s safety, but a prior rape or two could also lead to serious, violent attacks by fellow inmates. I wanted my new client to open up to me about his history and his rape convictions without fear that others in the visiting room might hear. I imagined that he had told others he was in for mur- der, since his sentence was twenty-five-to-life.
My client appeared in the window. He was handcuffed in front of his body; the handcuffs attached to a chain around his waist. He looked down after a quick glance at me, then watched the guard struggle to find the key to the little room. It must not have gotten used much.
Honestly, I was surprised that my client was White. I didn’t have all the previous records from the case, but I knew that he had two prior convictions. His most recent conviction for possession of methamphetamine landed him in prison for twenty-five-years-to-life under the three-strikes law. I guess the meth conviction should have been a clue: it was rampant in California, especially the Central Valley and other poor white areas.
But I also knew that people of color accounted for more than 70% percent of people in California prisons. (“Offender Data Points for the 24-Month Period Ending in June 2018” California Department of Corrections and Rehabilitation. January 2019). Overall, one in three African American men can expect to go to prison in their lifetime, compared to about one in seventeen White men. (See https://www.aclu.org/issues/smart-justice/mass-incarceration).
Here stood that one in seventeen, framed by the wire mesh window, looking like a truck driver with no big rig or a cowboy without his horse. My client’s gray hair grew long over his ears and complemented a well-groomed, almost-handlebar mustache. He was tall, well over six feet. When the guard finally opened the door and Tuggle came in, I stood up and he looked down at me.
“Just give me a wave if you have a problem,” the guard said. Then he shut the door behind him — and locked it.
I felt a quick rush of fear. I was locked in a tiny room, backed into the corner, with a convicted rapist who was 6’4” and weighed 220 pounds. I stood a bit straighter, trying to look bigger than my 100-something pounds.
Tuggle extended his hand; it was stopped suddenly by the chains only a few inches from his body.“Good morning, ma’am,” he said. And suddenly, it was just so awkward. I was thirty-four. David Tuggle was old enough to be my father. He had been waiting for the Ninth Circuit to appoint him an attorney to attack the three-strikes law. I imagine that when he received the news that it had finally happened, he’d been elated. Prisoners mark even the tiniest of victories.Then I showed up — young-ish, skinny, and just passed the California Bar.
Plus, I must have looked nervous. I had handled appeals for several other clients in prison, but we’d communicated by mail. I had been in many prisons before as a student or with a senior lawyer, but this was the first time, as a lawyer, that I’d met my own client alone. I looked nervous because I was nervous.
But the tall man before me spoke softly and courteously. He seemed old, almost shy.
We talked about the legal case he had been handling himself for years. I urged him to narrow his legal claims down to only the arguments that the Ninth Circuit had expressed some interest in. They had appointed me because they saw potential merit in a few of many, many claims my client had been litigating. Like the claim that the three-strikes sentence was unconstitutionally applied because it was not proportional to the crime of possessing one dose of a drug. And more importantly, because the prior strikes were based on crimes that Tuggle did not commit. My client was in prison for the rest of his life for a very minor third strike. He swore he was innocent of the first two strikes. And he could prove it.
Innocence is tricky. People always ask me,“Doesn’t everyone say he’s innocent?” or “Don’t you get sick of your clients saying they didn’t do it?” Most of my clients don’t talk about innocence. Rather, they make legal claims:“That piece of evidence shouldn’t have been allowed.”“That juror shouldn’t have been excused.” “The police searched me or my property without good enough reason.” Most legal claims have nothing to do with innocence. To me, and to the United States Constitution, those claims are just as important, if not more so. Of course innocence matters — but it’s equally important for the courts to follow the rules, for juries to make decisions based on evidence, not emotion, or race, and for judges to impose fair, reasonable sentences. These rules protect all of us.
As impossible as it might seem, every one of us stands the chance of getting entangled in the system. Every one of us wants those rules followed. We should pray at night for fairness, because innocence might not be that clear cut. It wasn’t clear cut for Tuggle. In fact, his case would eventually upend all of my assumptions about guilt and innocence. Innocence was not clear for my client, Nick, either. And it would not be clear for my husband and me.