Patricia Stone’s Plea Bargaining Payback

San Angelo attorney Patricia Stone is no rookie lawyer, even if she’s somewhat new to criminal defense. She served as a Texas assistant attorney general until she retired and went into private practice. One would be very hard pressed to assume that she wasn’t competent, smart and sincere when she argued on appeal the unconstitutionality of plea bargaining.

This case is brought to vindicate that principle. Patricia Stone argued in a criminal appeal that the plea-bargaining system violates the Texas and United States Constitutions because it is inconsistent with the text of the Constitutions and with the understanding of that text at the time the Constitutions were adopted. In response to these arguments, Defendants implemented a policy of refusing to enter a plea bargain with any of Stone’s other clients unless she personally agrees that her argument was wrong. The purpose of this retaliatory campaign is to silence any attorney who attempts to challenge the plea-bargaining system on which Defendants rely so that they will not have to defend against these challenges in Court.

Regardless of whether she’s right on the law or you support the elimination of plea bargaining as a matter of policy, the issue is that after she raised the argument, the Tom Green County District Attorney has created the “Stone Policy,” that they won’t negotiate pleas with any client represented by Patricia Stone.

Inside a Tom Green County, Tex., courtroom in October, a woman facing a misdemeanor forgery charge was about to lose her appointed lawyer.

That afternoon, the woman’s soon-to-be former defense attorney, Patricia Stone, was joined by a judge to explain to the defendant why Stone could no longer represent her: The district attorney in Tom Green County was trying to enforce a policy, pertaining only to Stone, that required her to sign a waiver against her beliefs for prosecutors to discuss plea deals for her clients.“

[The prosecutors] will not talk about trying to work deals or do anything by agreement. That could hurt my clients,” Stone said, according to court transcripts. “Therefore, I have a duty to my clients, since that’s the way they’re going, to not let that hurt you.”

At its most superficial level, this policy destroys Stone’s ability to represent clients by removing one, and for many the most critical one, tool in her bag. If clients represented by Stone won’t be offered pleas, then their choices are limited, they’re compelled to go to trial and denied the full panoply of options that a defendant represented by any other lawyer would be given.

To her enormous credit, Patricia Stone put her client first. While she won’t disavow the argument she raised on appeal, or be coerced into preemptively disclaiming the argument for any other client, she will similarly not let her clients be deprived of the options afforded any other client. Instead, she took the hit, giving up the case rather than allowing any harm to come to her clients.

As she was assigned to represent the defendant, it’s not as if  this implicates the denial of counsel of choice, per se, although clients and lawyers establish relationships of trust, and the client may very well prefer that Stone be the lawyer, particularly given Stone’s dedication to her client’s best interest and, well, the fact that not all lawyers doing indigent representation in Texas are renowned for their diligence. But a new lawyer will be assigned to the client, and Stone will be punished by the loss of the case, of the client, instead.

There’s no doubt that the prosecution’s “policy” is retaliatory for Stone’s having argued that plea bargaining is unconstitutional. There may be some sort of snarky rationale, such as “well, if she thinks it’s unconstitutional, then her clients shouldn’t get a plea. Let’s see how much she likes that!”

“In this case, the DA is saying, ‘we are going to dictate the legal arguments you can make, and if you don’t agree we’re going to make sure that your other clients don’t have the same right to justice as everyone else,’ ” Stone wrote. “They are trying to make me sell out one of my clients to do a good job for the others, and I won’t do that.”

While this shallow tit-for-tat game played by the Tom Green County prosecutor may seem roughly fair, Stone’s point is that the consequence of being forced to choose between her current clients being afforded the same options as any other defendants is to limit her ability to make a good faith, non-frivolous argument otherwise. If the policy directed at Stone for her temerity to challenge plea bargaining is allowed, then the DA would control the arguments she might make in future by the same sort of policy, the same sort of deprivation.

And if they can destroy Patricia Stone’s practice, her ability to represent clients, then what makes you think yours is safe if you make an argument that annoys the prosecutor enough?

To be clear, plea bargaining is a terrible compromise, coercive and manipulative, and the only thing worse than our current system of plea bargaining would be our current system without plea bargaining. But while I disagree with Stone’s contention, both on the law and as a matter of policy, she absolutely has the right to make the argument without suffering retaliation by the district attorney.

As long as plea bargaining remains a lawful mechanism for resolving criminal prosecutions, her clients must be afforded the same options as any other defendant. That doesn’t mean any client is entitled to any particular deal, but that they similarly can’t be denied any deal as a matter of prosecutorial policy.

For those stuck on what might appear to be the inconsistency in Patricia Stone’s position, lawyers argue in the alternative all the time. There is nothing improper about arguing in one case that plea bargaining is unconstitutional while taking a plea in another case. Aside from the fact that different cases demand different arguments, simply making the argument neither means she’ll prevail nor she sacrifice her clients for “the cause.”

Too many are blinded to the best interests of their client by their invocation of “the cause,” but not Patricia Stone. So she’s begging off cases to save her clients from harm, which is what an honorable criminal defense lawyer does. She just shouldn’t have to. No lawyer should fear that making a bold argument should force her to choose between the best interests of her clients and her ability to make any legitimate argument before a court.

7 thoughts on “Patricia Stone’s Plea Bargaining Payback

  1. Hunting Guy

    General Philip Henry Sheridan.

    “If I owned Texas and Hell, I would rent out Texas and live in Hell.”

    Molly Irvins.

    “As they say around the Texas Legislature, if you can’t drink their whiskey, screw their women, take their money, and vote against ’em anyway, you don’t belong in office.”

    Cherie Priest.

    “She’d grown up believing in hell in an abstract nightmare way; but west Texas* had given her something more concrete upon which to dread the afterlife.”

    *San Angelo is in west Texas.

  2. Chris Van Wagner

    The logical extension of this “Stone Policy” is, really, that a DA can decide who can and who cannot work in that DA’s courthouse. Stone was appointed here. But for her retained clients, and mine and yours and the next guy’s, this becomes the legal equivalent of a blackball power for the DA. Suppose a defense lawyer keeps whuppin the DA at trial in a given county and starts looking like the trenches’ equivalent of Scott Boras. We all TRY to become that successful at trial because it gives us more negotiating leverage for the next client and the next and the next. This is a basic practice builder; we tell newbies every day, just try the damn thing and watch what happens. But if that “next” client knows he or she has to go to trial if she hires lawyer X, and she is looking to minimize her consequences as opposed to taking some nose-biting stand and put up some frivolous defense, well, then she is forced to hire lawyer Y or lawyer Z. Lawyer X eventually becomes the trench equivalent of medicine man W.S. Walcott I hope Stone stones them. And also, I hope my local DA’s don’t read your blog.

  3. B. McLeod

    This strikes me as counter to the prosecutor’s duty to afford procedural justice to defendants, and also as an improper interference with right to counsel. The “policy” basically tells defendants who might prefer to be represented by Stone that if they stay with that, they are going to be punished.

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