“They’re offering you 40, I think you should take it.” This was Kwaneta Harris’s first interaction with her lawyer. Forty years in prison for protecting her life from a man she once cared for deeply. She declined the plea offer, and her lawyer promptly left.
Writing about criminalized survivors often focuses on the harms inflicted by prosecutors, judges, prisons and parole commissions. But the work of defense attorneys must be carefully scrutinized as well. Many defense attorneys receive no training on gender-based violence, how trauma affects their clients, or how to introduce evidence of gender-based violence at trial. When defense attorneys fail to understand the dynamics of gender-based violence and how trauma impacts their clients, or fail to use that information to help decision makers understand the context within which criminalized survivors committed their crimes, they deprive survivors of what can be powerful arguments against their criminalization.
During his next visit, Harris’s lawyer introduced himself and a female attorney who would second chair her case. Harris waited for either attorney to ask her what happened. They never did. Eventually, around the third visit or so, the male attorney told Harris his trial strategy would be to suggest that she discovered the victim after his death. Harris asked about arguing self-defense. The lawyer was not receptive.
Harris told the second chair about how her victim had become violent when she tried to end their relationship as the lawyer looked repeatedly at her watch. The male lawyer told Harris, “I can’t sell you as a victim. You’re articulate, educated. The jury won’t buy it. If you want to play that game, you’re gonna end up with a life sentence.” He asked, “Why didn’t you call the police? You weren’t in imminent danger.” Harris explained that her former boyfriend had put spyware on her computer, contacted her employer and accused her of selling drugs; that he had strangled and spit on her. The attorneys bombarded her with questions: Weren’t you having an affair? Why didn’t you leave? Did you scream, yell, tell him no? You’re too pretty; why did you put up with this? Why were you so trigger-happy? They told her that they could not disparage her boyfriend (or her abusive first husband) because both were veterans.
Throughout trial preparation, they continued to pepper her with questions. Any new detail or change in the sequence of her story and they would pounce: “The prosecutor’s gonna eat you alive on the stand!” Harris began experiencing severe self-doubt. After she described the abuse that she endured in her second marriage, the lawyers asked, “You like bad boys?” The male attorney said, “You come from a good law-abiding family. Why do two out of three of your exes have criminal records? What’s wrong with you? You like rough sex? Why do you keep putting yourself in these situations?”
These issues aren’t unique to Kwaneta Harris’s case. Defense lawyers have told women incarcerated with Harris that their drug use or their “promiscuity” makes them not credible, and asked why they have additional children with the partners who abused them. A Texas woman described to Harris how her defense lawyer lectured her about dating and marrying white men. The lawyer, a Black woman, told her Black client that the client wasn’t attractive enough and that no one would believe that she was too afraid of her husband to leave.
One of Goodmark’s clients, a woman incarcerated in Maryland, was shocked when her trial lawyer simply failed to appear for a hearing on her motion to modify her sentence, though maybe she shouldn’t have been; his earlier work was riddled with errors and he failed to explain key concepts to her. She says, “If I had understood that an Alford plea (requiring a person to admit that the state had enough evidence to convict but not conceding her guilt) would mean that people saw me as guilty, I would never have taken the plea.” Another of Goodmark’s clients, serving time in federal prison, discovered that her trial lawyers had misstated key facts in her case because they never actually discussed what happened with her.
Criminalized survivors routinely encounter defense lawyers who don’t explain their options, who urge clients to take pleas they don’t understand (pleas that play a significant role in perpetuating mass incarceration), who don’t meet with their clients before trial, who are skeptical of survivors who are not “perfect victims,” who belittle and disbelieve their clients, who are dismissive at best and abusive at worst.
The anti-violence movement has long recognized the harm caused by defense attorneys’ failure to understand gender-based violence and the impact that ignorance has on the cases of criminalized survivors. In 1997, the American Bar Association published “When Will They Ever Learn? Educating to End Domestic Violence: A Law School Report,” which argued that domestic violence should be taught throughout the law school curriculum, a recommendation that few, if any, schools took up. Sandra Babcock, a clinical professor at the Cornell Center on the Death Penalty Worldwide, has provided training for death penalty lawyers on trauma-informed, gender-sensitive mitigation. But “training of defense teams is just the first step,” Babcock says. “Ultimately, public defender offices should have specialized, gender-sensitive units. We know that gender-based violence is a pathway to incarceration for the great majority of incarcerated women, particularly those charged with crimes of violence. They deserve representation from lawyers who can explain their actions within a larger context of gender oppression.” For the most part, defense attorneys still don’t have the information or experience they need to represent criminalized survivors effectively.
After Harris learned that her co-defendant’s brother was making threats toward her family, she told her attorneys that she wanted to take a plea. The second chair lawyer asked as she signed the plea deal, “What could you have done differently?”
Harris simply said, “Died.”
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