This Is What They Teach at Georgetown?


Austin criminal-defense lawyer Dax Garvin laments in a comment to my Advice to a Young Criminal Defense Trial Lawyer post, “I just wish more cases would go to trial… it seems most clients just
don’t want to take the risk, and I fully understand and respect that.”

Miami criminal-defense lawyer Brian Tannebaum, fresh out of a federal drug conspiracy trial, shares his thoughts on trials, including this:

None of us try enough cases. I certainly don’t. My clients are scared like everyone else’s. They may want to go to trial, but the economy of scale tells them otherwise.

With sentencing guidelines causing clients to believe that the 3 level acceptance of responsibility reduction is as good as it gets, or maybe some cooperation resulting in a 1/3 reduction, most clients decide to plead guilty and play nice with the judge, or the government, or both.

As criminal-defense lawyers we can lament this all we want, but it is not us in the hot seat.

After being in trial this week I reaffirmed that trials are the only way we test evidence. Sure, we can file motions to suppress and motions in limine, and we should. The only way evidence is truly tested, witnesses are truly explored, though, is with a jury present.

We know that cops and agents won’t talk to us, but when a jury hears that, it’s different. We know that deceit is legally used to gain confessions, but when a jury hears this, it’s different.

Evidence looks and sounds different to a lawyer than it does to 12 lay people. So many people plea guilty that the public is left with the notion that the system is working. When innocent people are released, they yawn.

We need to try more cases.

I agree with Brian. We need to try more cases. And Brian and Dax are both right: it’s the client’s risk, so it’s the client’s decision. The client makes the call (with the lawyer’s best advice) and the lawyer has to respect that.

But we are advocates, and we can have a great deal of influence over whether a client pleads guilty or goes to trial.

I’ve lost at least my fair share of jury trials (more than most lawyers outside the criminal courthouse will ever try), but in every one it’s been my client’s choice to try the case, and in every one my client has been thankful for the opportunity to have his story told. I have had second thoughts about some of my decisions in some of those trials, but there are no cases I regret trying. Not one.

I don’t regret a single jury trial, but there are cases that I regret: those in which I encouraged the client to plead guilty, and he gave up his constitutional rights when he might have had a fighting chance with a fair jury. Those cases — the pleas that just maybe shouldn’t have been — are the ones that haunt me sometimes, ghosts of clients past; those cases affect how I advise clients today, and so I try more cases every year.

In contrast to my experience is this, from Georgetown lawprof Abbe Smith (H/T Jeff Deutsch):

I’ve been doing this work for nearly 22 years now, and the only regrets I have as a lawyer are the instances in which I think I didn’t lean hard enough on a client to take a plea. Those are my regrets . . . .

I have to wonder what I’m doing wrong that I don’t regret trying cases as much as Professor Smith. But it seems like Professor Smith and I might have other differences of opinion:

Had I been the lawyer advising Kelly at the time, I don’t know how to put it any more plainly than this: I would have made her plead guilty. It’s the job of criminal-defense lawyers to make our clients plead guilty. It’s not our favorite part of the job, and it’s not pretty when you have to put it that way. But it is an enormous part of the job of criminal-defense lawyering to make our clients plead guilty when it’s in their interest to do so.

It’s very difficult to try to make an avowedly innocent client plead guilty. Most of us don’t become criminal-defense lawyers because we want to make innocent people plead guilty. But the system stinks, and here’s somebody who had been locked up for 10 years in a maximum-security prison, and everybody knew that the Court of Appeals was going to reverse. There is this one moment, this one opportunity to free her, and I would have done everything within my power to get her to plead guilty.

(She’s talking about a case in which her client’s previous lawyer had “deferred to her client’s will” and let the client decide to retry her case after an appellate reversal instead of pleading guilty to time served. Hindsight is 20/20.)

You won’t generally hear a lot of Law Day boosterism from the criminal defense bar. Yes, the American criminal justice system definitely stinks less than China’s or Iran’s (woohoo!), probably stinks less than any other you could name, but Professor Smith is correct: it does indeed stink. Innocent people are convicted and sent to prison. Innocent people plead guilty, and criminal-defense lawyers get to stand beside them when they do. Innocent people go to trial, and sometimes juries find them guilty; we get to be there when the jury is read. A stinky system gets stinky results.

Does it stink less for an innocent person to be found guilty by a jury and sentenced to life in prison, or for an innocent person to plead guilty and be sentenced to a decade in prison? It’s hard to say. Both stink differently.

When the innocent person pleads guilty, the lawyer (I’m not attributing this thinking to Professor Smith) can, no matter how hard she’s twisted the client’s arm, say to herself that it was the client’s choice. When the innocent person is found guilty by the jury, though, the lawyer has to consider what she could have done differently, what tactical decisions might have been made that would have set the innocent person free.

And life in prison is much worse, cetera paribus, for most people than ten years.

But there’s something to be said for sticking up for one’s principles. Is the truth worth forty extra years in prison? Some truths are worth dying for.

I think that Jeff (who is not a lawyer, but who seems to have a better grasp of the ethics of the business than some lawyers) nails it when he says, “if clients need to be nudged, more of them need to be nudged to fight for their rights than to plead guilty.” If Brian, Dax, and I want to try more cases, we can nudge our clients a little more to try their cases.

And if we truly and objectively (and setting aside our own egos, which don’t generally like losing trials) think that our clients should plead guilty, we can nudge them a little more to plead guilty — I will lay out the stinky alternatives in the starkest of terms for the client who I think is going to get screwed at trial, but I don’t believe in making innocent people plead guilty.

Even if we can, we shouldn’t make our clients — even the innocent ones — plead guilty. It is unprofessional, unethical and immoral. If you’re going to go to law school to get lessons to the contrary, you might as well be going to Marquette.


0 responses to “This Is What They Teach at Georgetown?”

  1. I agree. The older I get, the more I see that we are not advocating the jury system hard enough. Sure there are cases where the client ought to plead guilty. That is never true however for the innocent client. OTOH that has to be there choice. What is interesting is how many trials we win or win partially when pleading would have resulted in far worse a result.

    I think Defense lawyers and even trial judges are becoming better at understanding laws of evidence and trial. We are becoming better trained at trial techniques and the science of Juries. Maybe some day we will require a specialty for trying Criminal cases. That ought to even the playing field substantially.

    • Tony, lawyers and judges are becoming worse at understanding evidence and trial because a dwindling proportion of cases are being tried.

      Russ, do you find that things are better in the free world?

  2. As an asst PD, after some seasoning, I felt that I was using more of my modest persuasive skills on stubborn clients than on juries. Time to quit…

  3. I do. Most of my work is still appointed, but I get to spend more time on my cases and don’t have to do the PD triage required in a busy office. I have learned that my bit-more-sophisticated, paying clientele share many of the same characteristics as my poor clients and need just as much re-education on the facts of the courthouse. My poor folks need to be disabused of their notions gained by watching Judge Joe Brown and having been to misdemeanor court themselves, and my rich folks need to unlearn all that CSI and cop-worshipping Law & Order crap they have imbibed.

  4. As you establish a name for yourself the plea offers get better and better to where you couldn’t in good conscience advise a client to go to trial, but every so often you get a case where they aren’t offering squat and trial is your only option.

    I had two different murder cases where I thought we had serious problems. In both I would have given anything for a manslaughter but the DAs thought the same about the cases as I did and it was “plead as charged”. Tried them both to “not guilty” verdicts. This is not to boast of my prowess but to remind us all that even the deadest cases often have some life in them AND you never know what’s going to happen in a trial. Priosecutions witnesses fail to show, get confused and screw up their testimony, someone contacts you because they read about the trial and they provide incredible testimony, etc.

    Another war story re the above: Unless I have a lot of money in a case (and even then) I tend to do my own investigating. If I need to preserve testimony I will do it again in front of an investigator. I have discovered that the more time you spend with the prosecution witnesses (if they will talk to you) the more of the prosecution case weaknesses get exposed. In one of the above homicides it took place in a rural county (Calaveras – home of the jumping frog contest). A very bad witness agaiinst us was a 17 year old kid. I had a new Beamer at the time and saw how the kid was salivating so I asked him if he wanted to drive it. I moved to the passenger side and he got behind the wheel. He soon realilzed that the longer he talked to me the longer he could drive those incredible roads. I saw him on 3 or 4 different occasions when I would be up there talking to others. Each time I let him drive. Each time I learned more. Finally at trial he “got confused” and didn’t hurt me at all. At the recess I went outside for a smoke. He and his wife (she was 16) came out and started arguing. She kept telling him to “ask Dennis” and he kept saying “no, I don’t want to bother him.” So I went up to them to see what it was all about. TUrns out he had found the victim’s pants in a shed on the property (he had rented it after the victim “disappeared” – my guy gave him a lease which had an option to buy clause which said something like, ‘if pop doesn’t show up in 7 years you can buy the place’. Prescient, no? In truth the “missing pants” didn’t matter but it gave me an opportunity to argue that he was killed by a “gay motorcycle gang out of SF” and that carried the day. Another lesson: Rural juries don’t like San Francisco homosexuals, especially those who ride mototcycles.

    dennis

  5. Had to comment

    I am a British Barrister and, what with our Ministry of Justice talking about following the American model so frequently, and having a bit of time to look around the blawgs, I thought I would take a look at what my fellow Criminal hacks across the pond are talking about.

    First impressions. Horrified. I have heard of plea bargaining of course but for it to be such that there is any thought that you would advise an innocent person to plead guilty is alien to me.

    It never occurred to me that a reason for advising a guilty plea would be that a guilty plea is their choice and therefore their responsibility whereas running a trial relies on your ability and is therefore your responsibility…. If your ability is not at least good enough for you to have faith in it… how do you square claiming a professional fee for it?

    And Dennis – over here we don’t speak to opposition witnesses before the trial (save under particular ‘special measures’ in a court like scenario for child sex cases and the like) – indeed it was only recently that us barristers would even talk to our own witnesses outside of court for fear of contamination – and whilst it is no bad thing that those days are gone… am I to understand you to be saying that you improved the chances of your client by taking a prosecution client out for drives – and allowing him to drive your prestige car – Over here that could easily be confused for an inducement, and I would expect to be in the running for losing my practising certificate. (some might call it perverting the course even)

    I in no way mean to be critical of a system I know so little of. But I thought my first impressions might entertain a few of you – and to assure you that I will be back to learn more

    From across the waters

    Interested Counsel

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