This Is What They Teach at Georgetown?

 Posted on January 10, 2009 in Uncategorized

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 justdon'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.

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