Monday, May 01, 2006

on being a public defender: to plead or not to plead?

It's not an uncommon dilemma.  Nonetheless, it haunts and perplexes your typical public defender.  What should you advise your client to do?  Take the plea or not?
I have two cases that are troubling me.  In one case I have been actively pursuing an alternate sentence.  My client has been in on bail for two months.  It is his first offense.  At first, the district attorney's 'offer' was a guilty plea and 6 months jail.  Then it was a guilty plea and 8 months jail.  It is clear from the nature of the charge that my client needs rehab.  I tussled with the DA over whether it should be residential and finally the DA and the court agreed (for logistical reasons) that an intensive outpatient program would be fine.  So my office has been working to get some community resources together to help my client get his life back on track - with employment, housing, treatment, and continued support.  Once this program is in place, my client can plead guilty and get out of jail, with the agreed sentence being whatever program is put together.  This case has taken a lot of time and energy, and I was well on my way to resolving this case when an attorney asked me harshly, "Why are you giving him a criminal conviction on a first arrest?" 
I don't know if I have a good answer.  I had asked the DA to consider an alternate disposition to try to avoid giving my client a criminal record, but my request was flatly refused.  That was back when we were looking at months in jail.  Suddenly I wonder if I'm wrong, and I've been working the case in the wrong direction the whole time.  Maybe he should go to trial instead - even if convicted after trial, the sentence would either be a similar drug program or jail time that my client would probably have already completed by that point.  But it would certainly mean that he wouldn't be getting out for another few months, at least.  And the facts / evidence pretty much points to "conviction."
My other case is also a first arrest.  If she agrees to pay restitution, she will avoid a conviction.  It's a good deal.  My client insists that she didn't do anything, and is angry that she was even arrested in the first place.  She believes that this is a vengeance issue, but after I did some investigation and advised her that she doesn't really have a good defense, and that the District Attorney seems to have a pretty solid case, she said "If that's what I have to do then I'll do it."  Should I tell her to just pay the money and be done with it?  Pay it, get no conviction, move on with your life?  If she really didn't do anything and this was just vengeance, then this won't be the end of the issues, I can imagine.  I just don't know what to tell her.


MarcusCT said...

I don't think it's a question of what you should tell them in terms of taking the plea. Instead, you should tell your client, specifically the second one you mentioned, the positives and negatives of doing so, the collateral consequences of either decision and help the client make the decision. The decision to take a plea isn't yours - instead, it's your duty to help your client make an informed, rational decision.

WomanoftheLaw said...

As to the second client - of course I've discussed those things with her already. I've even already told her that I can't suggest one way or another at this point. But I feel like I'm letting her down. I'm the professional. I'm the lawyer. This is part of my job. If I were to go to my accountant, or my doctor, and they gave me two choices and told me they couldn't tell me which one was best, I'd feel like they were doing something wrong.

marcusct said...

I can understand how you feel, yet, it's NOT your job to suggest one way or another, and that is what you need to understand. The decision to plea is that of the client and if you make that decision for her, you're taking away her voice in the relationship. But don't leave her alone to make the decision, you need to talk her through all the options -- it's beyond just telling her what the options are, but you need to HELP her make the decision.

Blonde Justice said...

I think sometimes (not always, but sometimes) a client saying "Ok, if that's what I have to do," is their way of telling you they're guilty. Some clients are too proud to ever come out and say, "Yes, ok, I did it," but maybe that's what they're saying by pleading guilty.

Blonde Justice said...

As for the 1st scenario, some cases present themselves as deal cases right from arraignments. Some cases present themselves as "If they don't make us a heck of a deal, we might as well go to trial" cases pretty quickly. Once you spend a lot of time going down either path, it gets a lot harder to turn onto the other path.

Is it possible to work out a deal with a program? Like, if he pleads guilty and completes the program, he can withdraw his plea for something lesser? And if he doesn't complete the program, he's stuck with the conviction. Judges here are sometimes willing to do something like that, and it leaves the ultimate destiny in your clients' hands.

Young Litigator said...

For the first case - I have no idea what you should do. It seems the facts would weigh heavily in this decision, and you have already weighed what you have and decided that this is the best route. It is okay to go with your gut.

Case #2 - what I try to do when a client is on the fence about which way to go, and I think taking the deal would be the best route (which it clearly is in this case), I present the case to them in the manner the jury would see it and ask them to try to evaluate it fairly. I also make sure they understand the costs of a conviction versus the benefits of taking the deal - in real world terms (like you may not be able to vote or carry a gun in some circumstances). Many times they will see that a conviction is likely and take the deal. If they still insist they are innocent and want to go to trial, it is time to strap it on and go full bore ahead.

It is important to remember that whether to take a deal is their decision ultimately, but it is also important to remember that you are the expert, chosen to provide them with the information required to make the best decision. If that means beating them over the head with an idea until the get it, so be it.

marcusct said...

Nicely said Young Litigator.

I had a client in an incredibly similar situation. We were offered a deal, like the one blonde justice discussed. However, the judge didn't accept it and we ended up with a plea that she wouldn't have taken originally. So just be careful with the judge!

Melissa said...

Hey there - this is alwawys the most difficult decision in the field.

Just a note of caution - be really careful about how much that you disclose on your blog re: clients, their cases etc. because you could be violating ACP.

Jeff Deutsch said...

Hello WOTL,

Wrt Case #1, I'm a little confused: if the client is "in on bail" as you put it does that mean that he's (or rather by now, he was) in jail in lieu of bail?

Wrt Case#2, I totally agree with MarcusCT. You cannot make the decision for the client. You can indeed give advice, but you must give the pros and cons of each option as objectively as you can.

As you know, different clients have different priorities - eg, people in certain lines of work simply cannot afford criminal convictions, whereas others may be especially sensitive to the feeling that they knuckled under and paid money they shouldn't have (had to) when they were innocent. Each client must weigh these priorities for him/herself.

Incidentally, you said that Client #2 doesn't have a good case. Are you personally convinced she's probably guilty, or are you simply saying that a jury likely would be?


Jeff Deutsch