Criminal Defense of Immigrants
§ 11.42 iii. The Client is Out of Custody
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In criminal court, a client who is currently out of custody has twice the chance of acquittal or dismissal of the charges and has a far greater chance of being seen as a human being by court and prosecutor in addition to having a far greater chance of remaining out of custody in the future through the momentum that present liberty exhibits. Such a client is far more likely to be believed as a witness and to be successful in obtaining post-conviction relief.
It is therefore urgent to get the client out of custody if at all possible. If the client is released, s/he can then dress up and come to court with child in arms, accompanied by spouse and family, to make a good impression. The client can meet with counsel, actively assist in the investigation of the case, and participate fully in the persuasion and litigation. While post-conviction negotiation or litigation is not utterly hopeless if the client is in custody, the chances of success are at least doubled if the client is free.
Even if the client is in custody — as long as s/he is in this country — it is possible, though more difficult, to consult with the client, obtain declarations from the client, and obtain court orders to bring the client to court during post-conviction litigation.