Of the many frustrating aspects of criminal defense, the client’s pleading eyes when she comes to understand that there are only so many options available.  More often than not, the brain doesn’t register this harsh truth, and the same question is asked at numerous points during the case:  “Can’t you get me a better plea?”

The call came yesterday.  I knew what was coming as soon as I got on the phone.  My client’s voice gave it away, that depressed, moaning sound that told me she was in a bad place and desperately wanted a way out.  This is a sad case, where she’s penned in by the interplay of various laws and her prior conviction.  The charge against her is downright stupid, but we have plenty of stupid applications of law in the criminal courthouse.  Her case is definitely triable, but no slam dunk.  The DA has a tape recording, which makes him feel like Superman.  Put it all together and it’s a recipe for misery for the defendant.

“Can’t you get me a better plea?”  The real question is, “There’s got to be another option here.”  The plea offer in this case is a plea to the top count with the minimum sentence available under law to a predicate felon.  In New York, a person with a prior felony conviction is called a predicate felon, and the law mandates that if convicted, a pred must do State prison time (at least a year upstate).  In her case, the minimum sentence would be 2 to 4 years.  It’s a lot of time for a stupid crime, and her predicate conviction was for a malum prohibitum offense as well.  In other words, she’s never done anything venal or malicious.  Just stupid, a theme in her life. 

But the law is the law.  She would love a sentence of probation (because she tells me she will never be stupid again).  Whether or not this puts off the inevitable is not the issue at the moment, because probation is not available.  As deeply as she wants it, I cannot get it for her.  It is not possible.  If she asks me 10 more times, it still won’t be available. 

An old lady on the street corner told her that somebody else got probation for what she’s accused of, so my client told me I should be able to get it for her too if I’m any good as a lawyer.  If I had a nickel for every time somebody told me the legal advice they received from an old lady on the corner . . .  I’m not bothered by the challenge to my abilities.  It’s the pain talking, and I understand the pain.  But it still doesn’t change anything.

The options crystallize as the case proceeds.  The plea offer is made.  Often, on the eve of trial, the plea offer will change once they know we’re serious about going to trial.  But not always.  Sometimes, when the offer includes the lowest available sentence, there’s no place left to go.  In this particular case, there could be no plea offer that would satisfy my client’s request.  It simply can’t be done.

So the choices are take the plea that you find unacceptable or go to trial.  Option 2, going to trial, presents its own problems.  First, there is the trial penalty.  If you lose, you will invariably receive a higher sentence than is being offered before trial.  While this lacks a certain degree of intellectual integrity (if you only deserve 2 years before trial, why should you deserve 5 years after?), it’s part of a system designed to induce a defendant to conserve prosecutorial and judicial resources by pleading guilty, and rewards a defendant with a lower sentence. 

But many defendant’s aren’t cut out for the fight.  The pressure of the unknown is more than they can take.  Every defendant asks the same question.  Every one.  “What’s going to happen?”  No honest lawyer can answer that question, unless the answer is that the case is so bad that there is no chance of winning.  “What are my chances?”  Another unanswerable question.  Lawyers can’t see into the future.  But clients want to believe that we know all and see all.  They need to believe that we have the answers.  After all, we’re the Lawyer.

Every client wants the option of saying, “never mind, let’s all go home and just forget about this sorry situation.”  It is not an option.  It’s facile to say that the defendant should have thought about that before they committed the crime.  It’s wrong to suggest it when the defendant did not commit the crime.  Either way, it doesn’t matter because it still isn’t an option. 

A defendant’s inability to handle the pressure, combined with massive distrust of the system, pushes most to plead guilty.  Cut your losses rather than fight to death, only to learn that death it is.  If you wonder why there are so many “innocent” people in prison, that’s why.  It’s easy for arm-chair defendants to opine that they would never plead guilty if they were innocent.  When the gun is to your head, the equation changes.  Facing years in jail, especially when you’re innocent, is a real motivator to tell a court that you’re guilty when you’re not.  Given that the system is threatening to put an innocent person in jail for years of their life, the idea of telling a little white lie that you’re guilty to save a few years seems extraordinarily trivial.  Of all the wrong things that are happening, a lie that saves an innocent person years hardly seems like a big deal.

I wish I could bring another option to the table.  In federal court, they could flip and buy their way out by making up stories about other people.  In state court (as with this client), that’s not available.  They don’t want snitches, and she’s got zero to give.  The only thing I can do is try the case to win.  I’m ready to do so, but I doubt she can handle the pressure.  She appears ready to crack.

The only saving grace is that she at least has the option of trial.  Many defendants have lawyers who talk a good game, but couldn’t try a case if their life depended on it.  They have no options at all. 

Addendum:  An astute reader has reminded me that years means “prison”, not “jail”.  I try to avoid the boredom of redundancy by varying the descriptive language in my posts, but my reader is quite correct.  If more than a year, it’s prison, not jail.