2015.62: An Apostrophe Too Far

Public defender “Norm DeGuerre” asks:

The answer is simple: because we do not serve our clients’ best interest. We serve our client’s best interest. And what is in the clients’ best interest has nothing to do with what is in the client’s best interest.

Put more concretely: say that there are 100 people charged with felonies, and the court system could, by keeping up a grueling pace, conduct four jury trials ((In Harris County, multiply these numbers by about 300)). If everyone demanded a jury trial there is no way the criminal-justice system could convict everyone; 96 cases would have to be dismissed. But the system could convict four people.

We’ve got 100 people facing charges. Divide them roughly, for the purpose of illustration, into five tranches. 20 have a 90% chance of being convicted, 20 have a 70% chance of being convicted at trial, 20 have a 50% chance of being convicted at trial, 20 have a 30% chance of being convicted at trial, and 20 have a 10% chance of being convicted at trial.

The government offers each defendant a plea bargain with a sentence discounted according to the government’s view of the defendant’s chances of winning at trial: the guy who has an 90% chance of getting 20 years and a 10% chance of walking gets a eighteen-year offer. If a defendant’s assessment of the value of a trial to him ((Taking into account such ineffables as principle.)) is less than or equal to the government’s, he makes a deal. The cases that are tried or dismissed are those in which the defendant assesses a trial as more valuable than the government does (or the government assesses a trial as essentially valueless).

By controlling the dockets and the plea offers the government keeps rational defendants and ethical, competent lawyers from crashing the system.

The defense wins eighteen outright (mostly dismissals, with a not guilty), the parties try two (one of which is a not guilty), and the other 81 are resolved with guilty pleas (numbers? numbers!).

But the defense could do better, right? Because the most the government could convict, if everyone insisted on a trial, is four. Well, sure, and if the defense bar could act monolithically and disregard the client’s best interest in favor of the clients’, 96 cases would be dismissed and only four poor schmucks would go down hard. But we aren’t and we can’t.

It’s frustrating. I feel Norm’s pain. I wish there were something we could do about it. Something good for the cause, but not at the expense of the individual.

Ah, but there is! Stay tuned.


8 responses to “2015.62: An Apostrophe Too Far”

  1. We represent individual clients. We have to do what’s best for each individual client. Some clients want to snitch. We may think increasing the number of snitches is bad for society, but that is irrelevant. Our oath is to represent the client’s interest, first and last.
    As lawyers our duty is to our individual clients. We can never use an individual client’s case to advance some agenda other than what is in that client’s best interest. This is an absolute. There is no gray area here.
    In our individual capacity many of us detest the aptly-named criminal justice system. We fight the system. In fighting the system, in our individual capacity, we may elect to make certain sacrifices. But we may never elect to sacrifice our client’s interest to advance our own. No matter how noble our goals, in fighting this disgraceful system we may never use our clients as cannon fodder.

    Robb Fickman

  2. I think coming to this realization is a rite of passage for defense attorneys, like getting your first bar complaint. You daydream about it once in a while after a rough day, and then put it back with the dreams of Maseratis and getting the real killer to confess on cross-examination.

  3. Snitches get stitches. But, I think I agree with Rob. You have to do what is best for the client, even if it will be worse for the hypothetical client that hires you next week.

  4. I wonder should the calculus change if you are a “public defender” as opposed to a private attorney? Interesting topic.

  5. You’re right it makes no difference. Just like on court appointed clients, the fact that the paycheck comes from “public coffers” doesn’t change the duty owed to the specific client. As a private attorney, I’m free to refuse someone who wants to snitch; that’s my prerogative, even if the case is court appointed. If I chose to represent them, though, I do have to assist them in snitching if I think that will benefit my defendant. I wonder if the public defender’s office has the same right of refusal, so that they could, if they chose, institute a policy that the office will not represent clients who chose to snitch.

  6. Today, I was talking with a friend about the problems we face when we have “too many” cases in the same court, and how having a lot of cases in front of the same Judge and prosecutors creates a different sort of conflict for us. The “apostrophe too far” illustrates this problem. It’s easy for prosecutors to leverage other/future cases in exchange for good offers on present cases. It’s a continuing problem and one that we must be on the lookout for.

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