Everybody Gets Convicted Anyway


Today I was hired to represent a young man in federal sentencing proceedings whose “trial” lawyer had advised him to plead guilty without explaining why, tried to withdraw from the case because the client wasn’t uncritically taking his advice, and then finally on the eve of trial, unprepared, convinced the man to plead guilty because “everybody gets convicted anyway.”

I don’t yet know whether pleading guilty was the advice that I would have given the man. But I do know that if I advise anyone to plead guilty, it’s because I’ve got good reasons that I can articulate to the client — good reasons beyond “everybody gets convicted anyway.”

Everyone most emphatically does not get convicted. Everyone who pleads guilty gets convicted, of course, but if more federal criminal-defense lawyers took cases with an eye to actually defending them rather than telling the clients, “everybody gets convicted” and running them down to the U.S. Attorney’s Office to sing, fewer people would get convicted. Not only would some of the people who otherwise would have pled guilty be acquitted, but also many of the people about whom they would have sung would elect to go to trial, and some of them would be acquitted.

There’s a saying among criminal-defense lawyers: If nobody talks, everybody walks. That’s not always entirely true, but it is true that the more defendants stand fast and make the government prove their case, the better it is for the other defendants doing so. The prisoner’s dilemma applies, though. Defendants in federal drug conspiracy cases are sometimes not the most community-minded people, and it’s easy for a lawyer to convince a client that there is some advantage to him in being the first to cooperate with the Government, especially when the lawyer’s official line is, “everybody gets convicted anyway.”

Once the first defendant has started to cooperate, the proof against the others looks more convincing, and they can be convinced, one by one, to follow suit, since “everybody gets convicted anyway.”

I don’t doubt that these lawyers believe what they’re selling their clients. Somehow (confirmation bias?) they disregard the plentiful evidence that defendants can try their federal drug cases and win. Every other lawyer’s win is chalked up as special situation that, for some reason, will never occur again.

If every lawyer had the trial experience to know how the Government’s proof would likely withstand the crucible of a jury trial, there would be cases in which nobody would be the first to cooperate. Everybody would go to trial, and some — possibly all — would be acquitted.

But “no,” they say, “everyone gets convicted anyway.” This is as near a self-fulfilling prophecy as there is in the courthouse. If you believe that your client is going to be convicted anyway, he’ll be convicted, and he’ll probably take everyone else down with him.

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0 responses to “Everybody Gets Convicted Anyway”

  1. I’ve lost plenty of trials. However, I’ve won cases I should have lost. You have to believe your own bullshit first to sell it to a jury. You must believe you will win. See it happening in your mind’s eye. Enthusiasm is contagious.
    One of the problems with federal criminal court is few lawyers fight. I’m talking about detention hearings all the way to trial. Why would you ever waive your right to cross the agent at a detention hearing? Even though it’s usually not the actual agent – you get Jenks material.
    Many times the feds gotcha by the balls. If they do, tell the client specifically why they do and the advantage of taking a plea, e.g. acceptance of responsibility (which I still had a judge give after trial once-but not the norm).
    Grey

  2. The days of juries blindly buying into the fed’s b.s. are over. A much wider range of cases are now most definitely winnable. Clients need to be given a little encouragement and be told that, in many instances, victory is far from impossible.

    We are now in an environment which is unusually sympathetic towards defendants and quite hostile towards the federal government. Use this for your clients’ advantage!

  3. There are certainly attorneys who phone it in, urge a plea, and become angry and frustrated if the client’s doesn’t rush to the Rule 11 colloquy.

    But on the flip side, there are lawyers who promise the moon and the stars to land a case and get that fat fee deposit or flat fee, without offering the client a realistic assessment of his or her chances at trial. No doubt you can’t win a case without trying, and a fatalistic attitude will make victory less likely. But it’s a disservice to a client to blow sunshine up his butt. An honest and realistic assessment — combined with an explicit promise that if the client wants to go to trial, you will fight like hell for him — is the best policy, I think. It’s not necessarily the policy most likely to land the case, of course.

  4. Mark,

    You are probably right, Mark.

    I’d say about a quarter of the time when I meet with a potential client and give him a reasonable scenario, and someone else gets him through an oversell, I later get a desperate call from the potential client telling me it’s all turned to ashes and asking me if I can fix it for, effectively, nothing — as he’s blown all his family’s money on the overseller.

  5. Mark,

    Thank you for your stance. It is our client’s 6th amendment rights that we are defending; his right to trial and his right to know all of his options so that he can intelligently, and based upon sound reason, make his decision take a plea or go to trial. It’s up to us to require the fair administration of justice. To me that means prefer trial but let him chose plea if that is in his best interest. For the trial every detail must be studied, reviewed and prepared so that we, as trial lawyers, will do our best each time. then the verdict is in the hands of the jury.
    I don’t think we should spend alot of time being salesmen. The key to liberty is the jury trial.

  6. Gentlemen,

    I get that the feds can be heavy handed and a select few prosecutions might even be considered unfounded. As an average citizen, one who not only pays his taxes and follows the law but sets his personal bar for integrity at a high level, I can’t help but think that most of your clients are probably guilty. Please don’t tell me that we have a justice department that routinely operates with nefarious intentions.

    I understand the right to defend oneself. I agree that it’s the bedrock of liberty. But I will never understand how you can defend somebody you know to be guilty. The general public can be excused for feeling frustration when they witness the manipulation of law to help a truely guilty person walk. I suppose most defense lawyers don’t view someone as truely guilty. They need to be convicted to be guilty.

    It might be a conflict of belief, but I applaud the neccessary service you provide
    and at the same time wonder how there can be something noble in defending the typical defendant. I also wonder how innocent an individual might be when I hear you say “he’ll probably take them all down”.

    By the way, who’s got Maddoff?

    • J.,

      Nefarious intentions? Please! It’s a government agency, with an inherent imperative to increase its power at the expense of our freedom. No matter how righteous its employees are, it will seek the path of more power (which means less freedom even for men of high integrity like us).

      Please read this.

      Our government is about as competent at prosecuting factually guilty people and not prosecuting innocent people as it is at most things it does. If you put the burden on defense lawyers to defend the innocent and not defend the factually guilty, some innocent people will not be defended, and the bedrock of liberty is mud. Every person who makes it easier for the government to put them in prison makes it easier for the government to put those of us who follow the law in prison.

      There are people in the world who would say anything about anyone for a buck or a day of freedom, and federal prosecutors are not terribly picky about who they believe, as long as there is a conviction in it for them. Even a factually innocent defendant can take everyone else down if he’s willing to sing the government’s song for a reduced sentence. You would be truly amazed at how close you are to being indicted and sent to prison.

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