30 September 2003

Over at In Re, Kyle begins by quoting from a professor who has written an article stating that Alford and Nolo Contendere pleas should be eliminated and then goes on to discuss the role of defense attorneys.

. . .

I became a fan of pleading no contest shortly after I started practicing for a reason not mentioned. My client had pled guilty to a number of misdemeanors as part of a plea agreement. After the prosecutor had introduced all his evidence one of the charges had not been proven1. The judge said the fact that my client had pled guilty tied his hands so he had to find my client guilty despite the lack of evidence. Ever since if there is any doubt in my mind I try to plead my clients nolo contendere. No Evidence + No Admittal = No Conviction.

. . .

Kyle quotes the following from the article:
"[Defense l]awyers can recognize that substance abuse, mental illness, psychological blind spots and denial, or simple shortsightedness impedes their clients' rationality. More importantly, they can persuade clients to face up to patterns of behavior that, if left unchecked, will lead to more crimes and punishment. As suggested by the psychological literature cited earlier, lawyers can confront their clients with the overwhelming evidence of guilt and break down their denials. Furthermore, lawyers can provide moral as well as legal counsel, advising clients that it is right to admit their crime, apologize to victims, and move forward. By penetrating clients' denials to others and themselves, defense counsel can begin the process of honesty, education, and reform."
I don't know the gentleman who wrote the article but I would bet good money he has never done criminal defense work2.

First of all, it is not a defense attorney's job to "break down their denials." The defense attorney's job is to advocate the Defendant's position not substitute his judgement as to what constitutes his client's best interest. Usually, this will mean that you will be trying to get the client as minimal sentence as possible3. Sometimes it actually means you will have the privilege of defending him at trial.

Of course, you do explain your client's position to him (sometimes quite emphatically - I have been in more than one yelling match). If there is videotape of him robbing the bank, two nuns saw him running out the doors, and the police found him with dye matching that of a dye pack on his pants you make very sure that he knows the situation and that he knows the odds of winning at trial. Clients aren't stupid; they will usually decide to have you attempt to get them the best deal possible. Basically, whether you are trying to get a good deal or a verdict of not guilty (as few and far between as those are), as a defense attorney you almost invariably represent a client's liberty interest against society's long term interest in making him conform and the government's use of power to either force conformity or seek vengeance.

As Kyle alludes to, in some cases you may go to trial just because the prosecution refuses to offer anything worthwhile. This is particularly true in cases such as Virgnia's Exile statute which gives the mandatory maximum sentence to certain Defendants. If your advocacy of the client's liberty interest cannot do him any good before the trial you have an obligation to go down swinging; maybe a key prosecution witness will remember something favorable to your client while on the stand or a flaw in the prosecution theory will make an unexpected - and glaring - appearance in mid-trial.

. . .

I'd like to think that the professor's stance is based upon naivete arising from not having dealt with many clients as a defense attorney because the other option is that it comes from a fairly standard prosecutorial bias (the belief that we should all just pile on the Defendant - he may be entitled to counsel but his counsel should just ease him down the path not advocate his position). The idea that a defense attorney substitute his for the client's judgement and try to reform the client is unrealistic in the vast majority of cases (and quite possibly unethical). It ignores the fact that there is a significant subset of society for which crimes, drugs, the daily scam and time spent in jail/prison is just part of life. Whether he gets out next week or two years from now the client returns to this society - the players may change but game remains the same. And no one is reformed by prison. It's full of players in exactly the same game. A great deal of pressure is on that client to remain as he is and that pressure will increase when he returns to his buddies on the street. The defense attorney who sees this client perhaps for 50-60 hours (assuming a massive case) at the outside is not going to change this man's life.

. . .

I just did a quick reread and I find my thoughts herein to be half-formed. As usual, I've shot from the hip informed by my experiences (not necessarily a bad tendency for a trial lawyer). I suspect that to complete my thoughts and support them well would take much, much more time then I have. Unfortunately, I will not be able to revisit this matter as posting will have to be bullets for the rest of the week since I will be preparing for a jury trial on Monday. If anyone else is interested in this subject drop me an e-mail and - assuming I'm not overwhelmed - I will try to publish the better thoughts.

In any case go read In Re's post and (if you've more time than I) maybe read the article.

1 I can't remember the reason for this anymore. I think it was that the prosecutor just forgot to introduce the evidence on that charge. It might also have been one of those cases where my client just wanted to plead guilty so he could get out of jail as part of a plea agreement offering time served. Many (if not most) clients want to get out of jail as quickly as possible and could care less about whether they actually did what they are charged with.

2 Not too much though. If I am to be judged by my poker record I should probably never bet too much money.

3 However, this is not always true. I've had at least one case where a client told me to go back to the prosecutor and get more time because he wanted to be sent from the jail to a prison. It's a convoluted story but it was fun to watch the prosecutor stand there in shock when I told him that my client had rejected the deal because it was too lenient.

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