In Tempe, It’s Coercion

Matt Brown, the Tempe Kid, has an incredible knack of seeing the obvious that more experienced lawyers no longer do.  It’s not just that Matt brings us back to the days when it was all new and shiny, but that he reminds us of systemic wrongs that we’ve grown inured to. It’s important that we never forget these things.

Much as we may hate it, the fact is that a plea bargain is at the core of saving a great many defendants from the fate that pandering politicians, for whom nothing shy of LWOP would suffice for jaywalking, would impose. Fight though we would prefer, our clients’ best interests must prevail, and so we engage in it, we advise them of it, and we counsel that it would be wise to consider the deal.

Most do, and most take it. Yes, it’s less than a principled approach to guilt and innocence, but real people’s lives demand real life solutions, not taking a bullet for the principle of it.  Yet Matt points out one small piece of the plea allocution that can’t be ignored.

The silliest part of any guilty plea is the part when the court asks if anyone has threatened or coerced the defendant into pleading guilty.

People are inclined to say no when it’s obviously the answer the judge wants to hear no matter what the circumstances happen to be.  The desire to please is intense enough when the person asking the incriminating question has a badge and gun, but it’s even more powerful when the person asking sits high above the fray wearing a robe and keeps getting called “your honor” by everyone in the room.

It’s not just pleasing the very important person high on the bench, but playing the game that has to be played to obtain the desired result. The defendant wants out, and he will do what he must to get there.

Several of my clients have given an admirable hell yes and briefly tried to elaborate before being cut off by others suddenly made aware of the absurdity of the question.  I respect the clients for it, but it never works out.  We all pretend that criminal defendants plead out of a sense of responsibility, as it’s important to maintain the illusion that the system has some integrity, but the truth is that people rarely plead guilty because they acknowledge they did wrong and want to take their cruel but usual lumps.

Matt’s not alone in this experience. When presenting the plea offer, and explaining its positives and negatives, the reasonably sane and moderately intelligent defendant will have issues. A plea is supposed to be knowing, voluntary and intelligent by definition, and yet that’s rarely the case. The plea is a compromise, of reality and principle. The structure of the system is to coerce the defendant into taking a plea, to threaten him with more sever punishment, the trial tax, for not taking the plea. All negotiations are coercive in some way. So when asked it he was coerced, the only truthful response a defendant can give is “an admirable hell yes.”

But of course, then the proceeding stop dead in their tracks. The judge can’t accept that answer and proceed with the plea, as the legal fictions must be maintained at all costs.  My method is to explain the plea allocution to my clients in advance of the plea, so he understand what will be asked and why he must answer in a certain way if he wants the plea to be accepted. This was the product of a monumental screw up when I was a baby lawyer.

Asked to handle a case, I appeared in court (Part 50, New York Supreme, Justice Harold Rothwax, former public defendant, then known as the Prince of Darkness) having never met or spoken with the client. I called out his name, and an Hispanic man raised his hand. I signed up the case.

When it was called, I motioned for the guy to stand next to me, as Harold offered his typical “one time only” sweet plea deal to clear his calendar. It was a sweet deal indeed, so I told the defendant he was going to take it and announced his acceptance. Harold launched into the allocution, and I whispered “say yes” each time the guy was to respond. He did as he was told.

As the allocution finished, the guy started jabbering frantically in Spanish, a language with which my familiarity was limited. The Spanish Interpreter was in the courtroom, and waved his hands to stop us from being dismissed from the well. He explained that the Hispanic guy standing next to me wasn’t the defendant, but the victim of the crime. I had just pleaded the victim guilty, and they were about to take him away.

Coercion? Not merely coercion, but coercion for which I stood solely responsible. Ah, I was so filled with my lawyerly importance in “knowing” how the system worked that I pleaded a victim guilty. It doesn’t get worse than that.

To this day, I go no further than to advise as to what a defendant should do with a plea offer. My youthful fiasco taught me to not only never again be responsible for the coercion, but to always remember that the plea comes at the end of a gun points straight at the defendant’s head. Perhaps his conduct makes him deserving of the gun being pointed there, but that doesn’t change the fact of coercion.

When a client balks at the options he has before him, I understand. They often suck, and the only question is his risk tolerance in rejecting the plea offer under the facts and circumstances of his case. There is no option of calling it a draw and everybody going home. They aren’t nuts to tell the judge, “hell yes,” I am being coerced. In fact, as Matt notes, that may be the only sane response to the question.


3 thoughts on “In Tempe, It’s Coercion

  1. Rick Horowitz

    This is just one of the many reasons I hate plea bargains. Like a lot of attorneys I know, my clients take them. Sometimes, when they hire me, they’re up front that they’re hiring me to get them “the best deal.”

    What I say to potential clients is that I don’t give a you-know-what about plea agreements. I explain that I won’t seek them, unless they ask me to, but that if one is made I’m required by law to advise them about it. I explain that the choice will always be theirs, but that there will be a lot of pressure — primarily due to the disparity between the “offer” and what could happen if they don’t take it — but that the only help they will get from me in making the decision is as accurate an assessment of the risk as I can give them. I won’t push, and will almost always not even suggest, that they take the offer. (There are times, I admit — like the guy who was looking at life without parole in a molest case, where the offer was three years — that I suggest it might not be a bad choice under the circumstances.)

    But I always, always tell them this: “At the end of the day, if you take the offer, do you know what I’m going to do?” When they don’t respond, which is almost always the case, I say, “I’m going to go home and have a glass of wine.” Then I ask, “Do you know what I’m going to do if you do not take the plea?” Some of them will guess it: “Same thing.”

    The point I try to make to them is that my life isn’t going to change significantly. I’m not the one with something on the line.

    Frankly, though, I wish plea agreements were illegal.

    1. SHG Post author

      If there was no such things as plea bargains, your same client facing sufficient, if not overwhelming evidence, would end up just as convicted, but with a far harsher sentence. To what end? We do everything in our power to both get the best possible deal and communicate with them the good and bad, thus making it as knowing and voluntary as we possibly can. Then, it’s their call.

      We all hate plea bargains. And we all know that without them, the situation would be far, far worse.

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