No-one ever won a trial by pleading guilty
Brian Tannebaum, Scott Greenfield, Mark Bennett, and now Paul Kennedy have been debating the pros and cons of guilty pleas v. trials.
It began with Tannebaum's thoughts on how we should be trying more cases:
After being in trial this week I reaffirmed that trials are the only way we test evidence. Sure, we can file motions to suppress and motions in limine, and we should. The only way evidence is truly tested, witnesses are truly explored, though, is with a jury present.We know that cops and agents won't talk to us, but when a jury hears that, it's different. We know that deceit is legally used to gain confessions, but when a jury hears this, it's different.
Evidence looks and sounds different to a lawyer than it does to 12 lay people. So many people plea guilty that the public is left with the notion that the system is working. When innocent people are released, they yawn.
We need to try more cases.
Bennett agrees, noting that it is the client's decision, although the lawyer can certainly nudge them in the direction of taking their case to trial.
Greenfield, however, points out that it is not our decision - it is the client's decision whether to plea or go to trial and it is theirs alone:
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.
I agree with Scott's statements in principle. But it is an inescapable reality that client's decisions are influenced by their attorney's views (and ability). Attorneys have an obligation to inform their client as to the probability of success of any given course of conduct, including a trial. Public defender clients, and those of some private attorneys, plead guilty more often because, when assessing the client's case, the public defender is more likely to inform the client that this case cannot be won, and that a plea is in their best interest. A defense attorney who is able to investigate a case and who has the ability to take a case to trial is going to be more likely to advise their client that their case can be won.
The client may also choose their attorney based on whether that attorney tries cases. When I first meet with clients, I will often tell them that if they intend to plead guilty, I can refer them to another attorney who will cost them less money. There are attorneys who never try cases and who charge accordingly, who only negotiate plea bargains (read: wait for the prosecutor's plea offer and then accept it). If I accept their case, we will investigate the case and if we cannot obtain a result that they are satisfied with, we will take their case to trial. If and when a plea offer is made in their case, it is their choice to accept it or turn it down, but if we have not investigated their case and prepared it for trial, they will not be able to make an informed decision as to whether to try the case or not.
So, I agree with Scott that the choice as to whether or not to take a case to trial is exclusively the client's, but it is a decision that is necessarily based on the attorney's advice. And that attorney's advice is going to reflect the attorney's propensity for guilty pleas or trials. And, when advising a client of the probability of success or failure at trial, one last piece of advice that I have no problem giving is: no-one ever won a trial by pleading guilty.
Comments
It appears that you are saying an attorney's advice is based on the attorney's own propensity for trials or pleas. I understand that.
I am disturbed though, by this statement you make: "Public defender clients, and those of some private attorneys, plead guilty more often because, when assessing the client's case, the public defender is more likely to inform the client that this case cannot be won, and that a plea is in their best interest.
Why do you generalize about public defenders. I was one, and a great number of private attorneys once were as well. To say that the public defender is more likely to inform the client that the case cannot be won is overgeneralizing public defenders.
Sure, public defenders have more cases and can't spend the time that some, and I mean SOME private attorneys spend on cases, but there are dedicated public defenders that take great care to advise clients whether to plea or try the case.
Can you clarify your statement?
Posted by: brian tannebaum | January 12, 2009 1:17 PM
I was a public defender as well.
I'll move this to a separate blog post and clarify.
Posted by: BFrederick | January 12, 2009 4:15 PM
I am a public defender in the State of Georgia, and I have been since 2000. Over the years, I have done my best to investigate every case even though I have limited funds & time. When discussing my client’s chances at trial, I use the metaphor that a trial is like a big-time poker game. You can win big or lose big, but you will not know unless you are willing to play the game. Furthermore, even after through investigation, I have taken a number of cases to trial, even though they stunk to high heaven because my client wanted a trial. Therefore, not only do I have concerns about your statement about PDs just like Mr. Tannebaum does, I take great offense to your statement. Your comments are a part of the typical claptrap that the private bar uses to denigrate public defenders to make a buck.
While I am impressed that your office takes appointed cases and does investigations on each of them, I do not see anywhere on this blog or your office’s website where you are refusing to take appointed cases, due to the lack of adequate funding. In addition, I do not see anywhere on your blog or your websites about what steps your office or you personally are doing to help change the state of Indigent Defense in your state.
Moreover, I do not believe that you have any genuine concern about the plight of those criminal defendants that have to be represented by PDs with the mindset that you so bemoan about. In fact, I think that you only thing you are good at doing on this matter is to bitch about the general state of Indigent Defense, and give empty rhetoric on your website about what PDs should do without giving the slightest bit of proof that you are practicing what you preach.
Posted by: Donzell | January 12, 2009 4:22 PM
Sorry about the double post. It is not an attempt to be a jerk. When I attempted to post my earlier comment, your website did not show that it went through.
Posted by: Donzell | January 12, 2009 4:33 PM
Donzell:
Np with the double post, I'll fix it. I posted separately on the topic after reading Brian's comment. I am not speaking to pd's who are investigating cases and allowing their clients to decide whether they want to a trial or not. I am speaking to pd's who strong arm their clients into pleading guilty, and who will only go to trial when they are absolutely forced into it. I am also not trying to offend anyone, although I realize that it will happen.
"In addition, I do not see anywhere on your blog or your websites about what steps your office or you personally are doing to help change the state of Indigent Defense in your state."
If you will read through the blog posts under the category, indigent defense, specifically "S.C. attorneys ask courts to halt prosecutions . . .", you will see what we are doing in response to the lack of funding. Currently, I am in a position to refuse to proceed in appointed cases, based on our legislature's refusal to fund indigent defense in our state. I have been blogging extensively about the issue, because I am incensed, as are most attorneys in our state.
We are filing motions to halt the prosecution of our appointed clients and to release them from jail until the legislature funds their defense. Right now, in the courtroom, the judge, the prosecutor, the court reporter, everyone is funded except the defense attorneys.
We are litigating the issue without compensation, because what is happening is wrong, and because SCCID has left it to the private bar to litigate the issue, by voting to stop paying appointed attorneys. This situation is what has prompted me to blog about indigent defense - this crisis has created the opportunity for lawyers in our state to speak out about the lack of funding for indigent defense and the effects that the lack of funding has on our system. It has created the opportunity to attempt to educate the legislature and the public on the Sixth Amendment and what it means. It has created the opportunity to litigate the issue and hopefully to come through the crisis with indigent defense in better shape than it was before.
Posted by: BFrederick | January 12, 2009 6:15 PM
After reading your response to my comment on your earlier post, I take back those comments regarding your lack of concern about the state of Indigent Defense in SC.
Posted by: Donzell | January 12, 2009 7:52 PM