Behind Bars, Law Students Find Their First Clients

I didn’t think my first cross examination would happen before my 1L Fall exams.

On a brisk December morning, I and my 3L supervisor drove the almost 40 miles to the maximum security Souza-Baranowski Correctional Center to defend our client, an inmate, at his disciplinary hearing on behalf of Harvard’s Prison Legal Assistance Project (PLAP). We practiced for much of the car ride, going over the Department of Correction’s evidence and our possible lines of argument. We edited and tinkered with my closing argument so much that by the time we arrived, the paper it was written on was a maze of cross-outs, scribbles, and underlines.

And then, six weeks before I first stepped foot in Criminal Law class, I walked into prison.

There are few things as humbling as having your client sit in shackles beside you even as you argue his case. At Souza-Baranowski, prisoners have even their hands shackled, loosened just enough so that they can sign documents. In a small visiting room, I, my supervisor, our client, the prison’s disciplinary officer (who can function as a prosecutor), and the judge-like hearing officer sat closely together. The hearing officer, himself an employee and former guard with the Department of Correction, started his tape recorder and we were off.

A hearing is a very fast, somewhat intense procedure. The hearing officer ran down the list of charges and asked our client for a plea to each of them: not guilty was his to response to all charges. Then the disciplinary officer summoned in a guard as a witness, asked him a few basic questions and turned him over to me.

The legal scholar John Henry Wigmore once called cross examination the “greatest legal engine ever invented for the discovery of truth.” That guy was on to something.

In disciplinary hearings, cross-examination is the engine that can bring accountability to the normally un-scrutinized operations of a correctional facility. The banal sounding language of an official report can fall apart with a few well-crafted questions that point out its absurdity or contradictions. The examination becomes a subtle game of thrust and parry: press too hard and the guard may clam up; go too softly and he will have space to detail the many wicked deeds he is sure your client has done.

After the witness, the disciplinary officer ran down the case against my client. Finally, I had a chance to deliver an oral argument directly to the hearing officer, using any themes or arguments I could think of.

I’d like to say that I handled it as Atticus Finch might have. In reality, I just did the best I could for my first oral argument ever. Then it was back to the car, to Cambridge, and to Contracts.

This is the work of the members of PLAP. As student-attorneys, 1Ls, 2Ls, and 3Ls alike travel to prisons and represent clients at their disciplinary and parole hearings. There is no right to an attorney at these hearings, so it’s PLAP or nothing. It’s embarrassing how much each inmate deeply appreciates the work PLAP does for them. Receiving gratitude from a person in prison is tough to swallow. But there’s precious little else 1L year that can so clearly and deeply remind you of the tremendous power that the law can have, and of our responsibility to wield that power responsibly.

Whether you’re more inclined to the defense, or to the prosecution (yours truly included), or even if you’re not sure you’d like to practice criminal law at all, PLAP is a powerful and perspective-shaping experience. To return to your home and to realize that your client will be in the same cramped space a third the size of your bedroom for the foreseeable future, while you go about your day, is a lesson in the value of freedom. In Criminal Law class, the cases we read usually end when the prison door slams shut. PLAP forces us to remember that that is not the end of the story, only the beginning of a new chapter in the life of the incarcerated human being. And that these human beings don’t stop being humans, or American citizens, when the prison door slams. The nature of our duty to help them as fellow humans, to love thy neighbor, changes when they enter prison; the duty does not end.

We lost the case. Disciplinary officers often throw every possible charge at prisoners, expecting some to stick. Our client had every charge dismissed except one, but that one was the most serious. We lost.

We appealed on multiple grounds, and were surprised when the Deputy Commissioner of the Department of Correction actually upheld our appeal because of a lack of a key witness and ordered a rehearing. In February, we did it all over again in Round 2. We lost.

But the resulting sentence was one month shorter than from the first hearing: one fewer month spent in the Disciplinary Detention Unit (DDU), Massachusetts’ version of solitary confinement, where inmates are usually kept in their cells for 23 hours a day.

I probably spent about 40 hours on the case start to finish, writing motions, travelling to prison, preparing and delivering arguments, and appealing. For being able to help another human being in a moment of need, for being able to represent my first client, for one month fewer of solitary, it was the best time I spent in my first year at Harvard Law School.