Yet another very interesting disagreement has reared its pretty head, this time between Houston criminal defense lawyer Mark Bennett, Miami criminal defense lawyer Brian Tannebaum and Austin criminal defense lawyer Dax Garvin, on one side, and Georgetown criminal law professor Abbe Smith (via Jeff Deutsch) on the other.
The disagreement begins with regrets (cue Frank Sinatra):
The lawyers regret those cases where they failed to push their clients harder to go to trial rather than cop a plea.
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.
The lawprof regrets those cases where she failed to push her clients herder to take a plea rather than go to trial.
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 . . . .
If this was simply a chat about regrets, it would be too familiar, with lawyers crying in their beer about the ones that got away. But it’s not merely about regrets, but about a call to action. Bennett goes on to urge that the dividing line must fall on the side of trying cases rather than “nudging” innocent people to go to trial.
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.
We trial lawyers are a curious breed. So enamored with the fight, with principles, with the challenge. We are bold. We are fearless. Into the Valley of Death we ride without any hesitation. Except for one thing: We don’t pay the price of our decisions.
There are only a few decisions that belong exclusively to the client. Whether to go to trial or take a plea is one of them. It is our ethical obligation to do two things: Inform our clients completely, honestly and as precisely as possible of the factors that should be considered in making the decision, and honor their choice. Neither side in this disagreement appears to demonstrate a firm grasp of this duty.
As I’ve discussed many times before, lawyers have the ability to influence a client’s decision to go to trial or take a plea. We can do it overtly or we can do it through the manner in which we inform them of the factors to consider. We can persuade, manipulate and control the client’s free will. We can bend them, twist them, shape them and mold them. Both sides in this disagreement believe that it’s their right or duty to do so. They are wrong.
We trial lawyers somehow fail to remember that when the battle is done, we go home and have dinner. The defendant, on the other hand, lives with the consequence of the decision, no matter which way it goes. The defendant’s spouse, children, parents, friends, live with the outcome. Who are we to set ourselves up as God, to decide that our principles are more important than our clients’ free will? Who are we to decide that our client’s life is worthy of sacrifice to the integrity of the system?
Will we feed the defendant’s children when they are hungry? Will we hold their hand when they need guidance, or comfort them when the trip and fall? No. We will have explained to our client that we fought the good fight, did the right thing, and will see them in 10 or 20 years. Or maybe at their funeral. And we will then leave the courthouse and return to our own homes, our spouses and children, and hold them close to us, comfortable in the knowledge that we will return home the next night as well.
It has become a foundational belief within the criminal defense bar that we play a role in shaping our clients’ choice on the critical question of trial or plea. We believe that we know better than they do. And to the extent that the question is resolved by the likelihood of success at trial, we clearly do. Many defendants have a terribly poor ability to recognize their chances of success and failure, both substantially misapprehending how the system works and how the evidence against them will play with the jury. It is our responsibility to explain this to them thoroughly and as accurately as possible. But explanation is not manipulation.
In the dispute at hand, both sides approach the question with the best of intentions. They arrive at their respective positions in the belief that it is in the client’s best interest. Unfortunately, this is not the case with all criminal defense lawyers. Some haven’t tried a case in years, while some have never tried a case. Having been paid up front, they push for a plea to avoid the hard work of a trial, or the embarrassment of the client learning that they couldn’t try a case if their life depended on it. This is blatantly dishonest and unethical. It’s is also fairly commonplace. Lawyers who do this should sit in the cell in lieu of every client they counseled to cop out.
But even when the attorney “nudges” the defendant with the best of intentions, he does wrong. The attorney’s choice is never a substitute for the defendant’s. The lawyer cannot substitute his risk tolerance, faith or dedication to principle for that of her client. Not only does she not suffer the consequences, but she usurps the defendant’s fundamental right to make a truly independent decision. We, who put such stress on our client’s right to free choice and criticize the police, prosecutors and system for denying that to defendants, are no more entitled to steal it from them than anyone else.
Sure, there are cases when our lawyer brains tell us that our client will crash and burn at trial. We can inform them that, in our professional opinion, the evidence against them is overwhelming and they will be convicted. And they will make their decision with that knowledge in hand. But it must always be the defendant’s decision to plead guilty or go to trial. Our duty is to be honest with them.
No doubt my brothers and sisters will remind me that many defendants are poorly educated, harbor disturbing misconceptions about the system and are ill-equipped to make such a monumentally serious decision. They will tell me that they can explain the factors until they are blue in the face, and still face defendants who fail to grasp reality. Some will go so far as to doubt the competence of certain clients to make a decision that will affect the rest of their lives. All of this is true.
Still, it does not alter our ethical duty to explain first, then honor the decision of our clients. Until we suffer the consequences of our hubris in believing that we are empowered to push our clients toward or away from trial, they alone own the decision. The choice is theirs alone, and we must honor it.
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“Bennett goes on to urge that the dividing line must fall on the side of trying cases rather than “nudging” innocent people to go to trial.
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.
We trial lawyers are a curious breed. So enamored with the fight, with principles, with the challenge. We are bold. We are fearless. Into the Valley of Death we ride without any hesitation. Except for one thing: We don’t pay the price of our decisions.”
That’s dishonest of you. I’m talking about the lawyer honoring her client’s decision that her innocence is important enough to risk life in prison, rather than substituting her own pragmatism (as Professor Smith would have done) for the client’s principle.
That’s very facile of you, picking and choosing what aspect of your client’s decisionmaking you wish to honor. Clients frequently profess innocence, but later elect to plead guilty. You’ve chosen to write the client’s principle in stone at this point, and deny the client the ability to change when time comes to decide whether to go to trial or plead guilty, and wrapped yourself in principle for doing so, while the client will have the next 20 years to think about your having lived up to your principle. Let the client make his own choice based on his own principles, which can include changing his mind or being pragmatic. It’s the client’s life.
No, look at the underlying case — the client decided, on principle (“I didn’t do it”) to plead guilty. It’s the appellate lawyer who’s saying she would have “made” the client plead guilty. I disapprove, just as I would disapprove if she had said it’s her job to make the client go to trial.
Maybe you should read my post without confirmation bias. I don’t advocate lawyers substituting their own principles or pragmatism for the clients’ pragmatism or principles. Whether the truth is worth the risk is the client’s decision, and we must honor that decision whatever the client decides.
But our clients hire us for our advice as well as our advocacy. We’re not barred from advising them on how best to make even the decisions (plead? testify?) that are in the end and properly theirs alone. To say, “Here are the facts, make your own decision,” is to abdicate our responsibility to counsel when the client needs us most.
But I wasn’t talking about any individual case, Mark, but about our ethical duty in all cases. Maybe you should read the post without pride of authorship in your position so that you have to defend it, no matter what?
Giving a client advice is entirely different from “nudging” them to do what you think they should do without openly stating that you’re giving your opinion about how they should make a choice that will affect their lives. And still, when they ask for and receive our ‘advice” on whether to plead or go to trial, they generally tend to submit to it under the belief that we’re the expect. We are still playing with someone else’s life based upon our principle and risk tolerance, when they alone bear the consequence.
I’m still trying to get over the fact that my name and “Georgetown Law Professor” are in the same paragraph, but I digress.
None of us, and by us I mean the “good” criminal trial lawyers would ever “nudge” a client to go to trial when everything says plea.
Being in the middle of these situations daily, where the client is teetering between trial and plea, teaches us that the decision is not always based on the same issues. Some clients are not only concerned with jail, they are concerned with their professional licenses, their reputation being salvaged, they are willing to take the chance but are scared. It is our responsibility to professionally assess the case and offer our opinion.
If the client has decided to proceed to trial but is scared, then we “nudge” them and convince them that their decision is appropropriate because to do otherwise is no different than nudging them to go to trial.
There is no simple way to handle this ultimate decision. I tell clients who I know are not comfortable with the plea, “lets go to trial.” If they are set on trial, I may try to convince them to plea based on my experience.
No one with any credibility is going to have a client “take one for the team, but it is our responsibility to listen to the client, offer advice, and press when appropriate.
We are advocates, not psychiatrists.
Ah, I think I understand now. You think a nudge is something covert. No, a nudge is simply something less than a push or a shove.
I’ve said many times that this — helping the client decide whether to pull the trigger and go to trial — is where real criminal defense lawyers earn their keep; it’s a sacred obligation, not to be taken lightly. It can’t be based on our own ends, but we can’t just lay out the facts and walk away.
My MO is to lay out everything, from the facts to the varying considerations, including potential for conviction as well as collateral impacts, that comprise the full package of information necessary for decision-making. I then have the client explain to me what he/she thinks, feels, questions, whatever. Only one I have a feeling for their concerns and priorities, and assuming they ask and want to know (as almost everyone does), do I offer my thoughts. I am extremely careful not to unduly influence their decision. I am painfully aware of the fact that they will live with the consequence of their decision, and that whichever way it goes, they must be comfortable with their choice and prepared for the outcome.
That said, when I have a client who is in denial, and refuses to accept those factors that strongly militate one way or another, I do everything in my power to make certain that their decision is truly knowing, voluntary and intelligent.
You guys want some coffee?
I think we should move to the coin flip or pick out of a hat method of trial or plea.
I have a client facing an attempted murder charge. He went through a trial before on this charge as well as a murder charge. The jury acquitted him of the murder but hung on the attempted murder. The issue in both the attempted murder and the murder charge was self-defense. The chronology of the incident was this: my client fired first at the first “victim” (who was walking into my client’s backyard carrying a gun, and who survived, hence the attempted murder charge), and then instantly the victim’s son pulled out his gun and pointed it at my client. My client and the victim’s son exchanged fire, and the victim’s son was killed. Again, the jury acquitted my client of murdering the son, but hung on the attempted murder of the father.
I’ve got pending a motion to dismiss by reason of collateral estoppel that I think should prevail. When the jury acquitted my client of murdering the son on the ground of self-defense (a rational jury couldn’t have based the acquittal on any other ground) it also “necessarily decided” that at the time he shot the son my client was not committing a crime that was immediately connected with the confrontation with the son. The shooting of the father was directly and immediately connected with the confrontation with the son. Hence, it appears that by acquitting my client of murdering the son the jury also necessarily decided that my client’s use of force against the father was not a crime, and that the state should be collaterally estopped from trying my client again on this issue.
I have high hopes for the motion to dismiss, but if it isn’t granted my client is faced with a dilemma. At the first trial, the parties learned early on that the jury would be acquitting my client of the murder, but were still deliberating on the attempted murder charge. The state offered my client time served if he would plead guilty to felony criminal recklessness, but my client declined that offer. (I was not his lawyer at the first trial.)
I have reason to believe that the offer of time served is still on the table, if the court doesn’t grant our motion to dismiss. My client is presently not inclined to take it. He doesn’t want a felony hanging over his head for the rest of his life, that he doesn’t feel he deserves. I think his chances are very good at trial, but obviously he could lose, and the consequences of losing don’t seem worth the gamble. I have discussed with him at length all these issues, but have emphasized that the decision is his alone. I have talked about his case with other criminal defense attorney, and they have suggested in so many words that I should persuade him to take a plea involving time-served, because it would be crazy to risk decades of his life in prison when time-served is on the table. There is still a possibility that my client could come to that conclusion on his own. But are there deals that are just so advisable that the attorney should make clear to the client his belief that he should take the deal?
After doing everything you can to present the reality, and making your rationale for your position as clear as you can, then it’s in your client’s hands, even if his decision appears to absolutely wrong to you. At the end of the day, it must be the client’s decision.
I think what Scott is saying is that, yes, there are “deals that are just so advisable that the attorney should make clear to the client his belief that he should take the deal.” There should be no question about it — we are advisors as well as advocates.
“To say, ‘Here are the facts, make your own decision,’ is to abdicate our responsibility to counsel when the client needs us most.” — and —
“My MO is to lay out everything, from the facts to the varying considerations… .”
These remarks touch on the “how” question which may be worth discussing. How do they decide? Assisting with the “how,” not only the “whats” and “whys” is a component of our service, IMO.
So. I see to it that defendants get a copy of every document as I produce or obtain it, motions, responses, decisions on hearing and motions, discovery responses and documents, and GJ transcripts.
(I practice in a county in which the DA for most cases, produces the GJ as part of a stipulation in lieu of motions entered at arraignment, which is a huge advantage, with open file discovery, reserving the right to make motions on issues not addressed in the stip, as the discovery and my investigation warrant. Though we all know the ADA can’t possibly help if an exculpatory witness statement or other some other vitally unimpressive doc doesn’t make it into the file, don’t we?}
Anyway, I am a consummate letter-writer (sometimes four or more pages long), and hand-holder (so to speak) in person, eyeballing the evidence, physical and documentary, page-by-page, witness statements, impeachment evidence, to assist them in informing themselves of the factual and legal case for and against a conviction. Also of the case for and against an acquittal, and for and against a plea, and the sentencing and other collateral consequences including the personal consequences on the defendant and his family. I encourage the client to sleep on all the information, turning it over in his mind as the case progresses. Which is what we are doing too, as defenders.
Though I may be wrong. Once in a while that happens.
Then Boom! Duck! Right, Scott?
Oh and another thing. To assist a client in clarifying his decision making, I advise him to write one or more “Pro” and “Con” lists, adding to it over time, revising it as he may think is warranted, over time. However many pages it takes. Pro and con a plea. (And plea offers sometimes change. Even for the better!) Pro and con a trial — before a jury who, no matter how well we filter them, are unknowable. And inscruitable.
Anyway, this seems to assist in their reasoning and judgment about what it best for them.
(If I would only take my own advice about making big decisions.)
I was with you all the way up to the last line. Then you lost me.
Kathleen, I hope the clients you are sharing all this paperwork with are out of custody. Otherwise, you may be meeting some jailhouse snitches soon.
I think Mark is clearly right on this issue, and I’m not even sure what exactly you disagree with him on, Scott. Clearly, we are to counsel what we think the best decision is while making clear that our advice is not dispositive and the decision is always ultimately with the client. I generally, as you suggest, lay out the facts, the defenses, the potential sentences after trial, etc..and then say, “if I were you…but I’m not, so the way I’m valuing things here might be different from the way you do, so now you know what the risks are of going to trial (and no matter what the facts, trial is ALWAYS a risk) and what the sure thing offer you have before you is. Do you have any questions about it all?”
You really are doing some catching up today. The issue is suplanting the defendant’s decision to take a plea or go to trial by using our position as attorney to manipulate it, whether by the control of information or overt pushing. To the extent Mark’s position has changed from pushing defendants toward trial to telling defendants, when and if they ask, your opinion as their attorney.
Mark appeared to suggest, via the “nudge”, that he would use his position of trust to manipulate clients to reach the decision he wanted them to reach. But he has since clarified that this isn’t what he meant at all, since it would be flagrantly unethical for him to do so and he would never do anything flagrantly unethical. You really needed me to explain this to you?
I just think the line between those two approaches is so thin as to be meaningless. We are lawyers and advocates. We care for our clients. We want them to make the right decision. We think we know what it is. If our explanation and basic advice fall on deaf ears, we are going to push harder and it IS part of our job, whether that push is for a plea or for trial. Ultimately, we have to accept the client’s decision, but it doesn’t mean we need to so the first time they articulate it without further discussion.
that should have read “need to do so the first time…”
I think you are absolutely wrong. Totally, absolutely wrong. There is a huge, big, red line between the limits of proper advocacy and facially, flagrantly unethical conduct. Totally, absolutely wrong. Not even close, and no spin changes the flagrant ethical violation. It is no different than lying to your client. Indeed, it is exactly lying when you push and push, spin the information, push and push until you’ve denied him the truth to make an intelligent decision and the freedom of will to chose the path he wants, not the one you want.
Flagrantly unethical. Am I unclear?
All I ever said was “nudge”. If your interpretation of “nudge” has changed, that’s in your brain, not mine.
Are you 5 years old?
But again, how would you handle the situation of a client facing attempted murder charges who’s been offered time-served and is seriously considering turning down the offer? Would you think it flagrantly unethical to tell him that in your opinion he should take the deal (while of course reiterating that the ultimate decision is his alone)? If this would not be flagrantly unethical, then really how crystal clear and how bright red is the line between the limits of proper advocacy and unethical manipulation? Does the question of how strongly you express this opinion lend itself to a bright line between ethical and unethical legal advice?
I’m not quite sure what you’re saying, spit it out, Scott.
Where is the line? Are you back to advocating you lay the facts bare and tell the client to decide?
Do you offer no thoughts of your own? Nothing that your experience (which the client will not otherwise have the benefit of) has taught you about which might be the wiser decision? Nothing about what you would do in that person’s shoes?
Where is the lie if you say to a client, “I think you’re making a terrible decision, here is why.”
If that is unethical, than most defense attorneys I know are unethical fairly often. If it is not, when does one cross the line? By our position of authority re: our clients, a statement like that is going to be extremely persuasive, and the line between persuasive and manipulative is, again, a very thing one.
Where I will allow for a line, and what I do think would be unethical, is to misrepresent the competing concerns. If I want my client to accept a plea and he wants to go to trial and the max is 20, but we all know he’ll get 12 after trial, it would be unethical for me to suggest to him that 20 is a real possibility. I must be honest in presenting the scenario to him and honest in my assessment of his options, with only his best interests in mind, but if I do that, I believe I am free to be as persuasive as necessary to make sure he understands why I think the proper decision is what it is. To be clear, many times a client will make clear to me that the way she values the competing concerns are very different than mine, mine tend to be punishment based. If a client says to me, “I don’t care the time I might face, I can’t admit this conduct in front of my family,” than I can factor that in to my analysis of what is best for the client and may indeed change my mind about the proper course based on having more information about what is most important to the client.
My approach in this situation:
Here is what I believe your chances are at trial and here is what I base that on. Here is what I think you’ll receive if convicted.
If it were me, I would not want to accept that risk. I would want to get out now. I think that’s what you should do, but the choice is yours and it may be more important to you to assert your innocence on principal. That choice is yours and yours alone.
I think this is not a situation where the heavy sell (the one Scott seems to object to) is called for. One just has already hung and it seems accepted your defense. The client does not seem to be acting outside the bounds of ration.
One question at a time: No, it is not unethical to explain to your client your reasoning for advising that he take one position or another. That’s part of our responsibility as advisor. And it’s not unethical to repeat it, or explain it differently, if it appears that the client does not understand the reasoning, or is weighing erroneous factors (i.e., but the women next door said I can’t lose).
It is unethical to distort the presentation of facts to compel a defendant to inexorably come to your conclusion. It is unethical to be overbearing in order to push a defendant to the attorney’s conclusion against his will. It is unethical to refuse to stop when a client has reached a decision, cognizant of the factors, that the attorney doesn’t like.
And yes, many attorneys are unethical in their manipulation of defendants, particularly in forcing them to take pleas because the attorney either can’t, or doesn’t want to, try the case.
This is much more exciting than the federal bar lunch I’m at. Are there any more seats?
I agree with you Lee.
And it’s not even the “heavy sell,” but the honest sell. I’ve tried to explain it above, and I think that you do understand the line, even when you say you can’t see any difference.
Uh, I have thought of the potential snitch problem as have other defense attorneys in my acquaintance and we have ways to obviate or at least minimize it.
I agree with all of that.
Didn’t mean to sound rude if I did (your reply sounded a little offended), it is just that it has happened to me and it is a really awful feeling to know that it is my fault that some lying snitch knows everything about my client’s case.
A Mixed Message To Lawyers
It’s always fun to watch an appellate court wriggle out of its dilemma when two rote rules clash, and the Second Circuit’s decision in United State v. Pitcher is