Everybody Gets Convicted Anyway

 Posted on December 17, 2008 in Uncategorized

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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