2015.62: An Apostrophe Too Far

 Posted on July 08, 2015 in Uncategorized

Public defender "Norm DeGuerre" asks:

Bringing the system to its knees is in you clients' best interest. Why aren't we doing it? @nytimes Norm DeGuerre (@NormDeGuerreEsq) July 7, 2015

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.

@NormDeGuerreEsq We've been through this before. What's good for the "cause" comes at the expense of the individual. Can't have that either.- Scott Greenfield (@ScottGreenfield) July 7, 2015

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.

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