Monday, July 16, 2007

Client Blunders

I've been getting hit lately with huge blunders by my clients - that is, blunders my clients make as my clients, not blunders they make that turn them in to my clients. I guess that I'm not down about it, even though it is resulting in much longer sentences for them, which occur on my watch. I hadn't had a client get a life sentence in a long time, and I had only a few of them (less than ten) in my career, somehow I had been lucky and managed to avoid too many.

Then I did a trial a little while ago where the defendants (three of them) were offered 17 years for an attempted murder of 5 people in a shooting. Their maximum exposure was about 5 life sentences and 120 years (meaning, first you do the 120 years - 85% of it, then you do 5 life sentences (minimum time of 7 years each, then you're eligible for parole. Hint for the math impaired - they would never be getting out).

At first, none of the defendants wanted the deal. It was a package deal, meaning all take it or none take it. The DA's perspective is that they were offering the deal to avoid trial, and if one of them wants to go to trial, then they weren't getting their end of the bargain. Since the case was an attempted, premeditated murder, then the judge had no discretion to give them that deal in the absence of the DA's consent.

As we got set to start trial, the other two defendants decided they wanted the deal, but my client didn't. So, they were forced to go through trial. Honestly, my client's case was much better than the co-def's case, but my client was closely associated with the co-defs, and he was arrested at the location, and he was identified as being with them during the shootings (the DA's position was that he shot, but my investigation had revealed that he had probably not, and that his involvement was minimal). Based on my investigation, the Def said he wanted to fight the case, and therefore forced the co-defs to have to fight their case as well.

Trial proceeded, and it went very good for us, just as it was going very badly for the co-defs. However, there was still some evidence of my client's involvement. While arguing over the jury instructions, a light bulb went off in my client's head, and he realized (despite my repeated warnings to him about this) that he could be convicted as an aider and abettor based on his association with the co-defs. He then told me, right before closing arguments, that he wanted the 17 years. Unfortunately, that deal was now off the table (most deals are on the table up until trial only). The DA said no, the judge tried to convince her otherwise, but she stood firm - no deal, even for the co-defs, who were being dragged along against their will and facing a life sentence even though they had wanted to plead guilty.

Eventually, while prevailing on most of the counts, my client was convicted of 2 counts of attempted murder (but hey, they found that he didn't have a gun, so he only aided the 2 co-defs) and criminal threats (this time with a gun). Huge victory for me? Well, he ended up getting 6 years plus 2 life sentences (far less than he faced, but still more than he was offered at 17). Interestingly, he is actually eligible for parole in about 19 years (7 for each life sentence, and about 5 of the 6 years), but realistically, he will never be paroled (very few lifers actually get paroled in California, despite otherwise being eligible - but that's a different story).

Now, I didn't beg the def to take the deal when it was offered. I realized that his case was a shakier case, but based on his close association with the co-defs, coupled with his arrest at that location minutes after the shooting (just like the co-defs), I thought that he could be very easily convicted. I also thought that, technically, the evidence on his involvement in the SHOOTING (he appeared to be involved in some of the lead up to the shooting, if not the actual shooting) was thin, and evidence of his subsequent aiding and abetting was also thin, so I thought that it was close enough that I couldn't push him too hard to take a deal. It's a fine line, but when someone has a colorable claim of innocence, or lack of guilt, I don't feel too comfortable leaning on someone to get them to plead guilty. So, I laid it all out for him in a very clear manner, and let him decide, offering him my advice, but not pushing it on him (pushing your views on your client in a case like this can be a poisonous thing to do, and you have to be very careful about it).

So, a bad decision by my client, and now I have another person doing life.

Oh, that association with the co-defs I was talking about? The 2 co-defs were two of his three younger brothers. By his insistence on going to trial, only to change his mind at the end of trial rather than the start, he got both of his brothers life sentences that they would not have otherwise have received. Obviously, his close association was the fact that they were brothers, and the fact that they lived together, at the location where the shooting took place, of outsiders who were hanging around their neighborhood.

So, as bad as it may have been for me and my client, it was far worse for co-counsel and their clients.


Anonymous said...

Did the fact that the co-accused were the client's siblings play into the equation in deciding whether to take the plea or not? In other words, did you approach your client saying something along the lines of: "Now, IF you are guilty of aiding, you may get a sentence of Y, and the offer is X, AND, if you accept the offer of X, your brothers will also get X, which is much less than the Z they will get otherwise"?
If you didn't propose such a thing to your client, do you think that you should have, in the sense that the overall sentence jeopardy of the three of them hung in your client's hands, and he can be seen to have at least some interest in seeing his brothers do less time than they otherwise would have to, right?

Gideon said...

Did you consider filing a Motion to Sever? I have serious doubts about the state's tactic in forcing the other defendant's to go to trial.

Dennis R. Wilkins said...

Kick yourself all you want, PD Dude - it sounds to me like you did the best you could. As to the motion to sever argument, we all know few judges would grant that because two of the D's want to plead. The real culprit here is the runaway sentencing scheme in California. How do you get a D to take a deal when he is looking at almost as much time as he has been alive thus far? Let's understand something - no one was killed, and the offer was almost 20 years, and the sentence after trial (and it sounds like your guy had a real shot based on the verdicts (D was essentially found to be a non-shooter aider and abettor to 2 of the 5 shots)) was life, life, life plus more time, etc. How can we deal with somthing like this?

The key here is that sentences in California have gone way too far to the punitive, and the only honest part of the system, trials, is being cut down year after year. We get so many pleas now where there are actual questions about guilt. The good news for my county is that the conviction rate in my county is so far down, and my the attorneys in my office keeps winning cases. The bad news is that when we lose our clients get hosed.

Don't beat yourself up over a bad system - your one of the good guys.

PD Dude said...

Anon - That was gone over in exruciating detail with my client, with the co-defs, together and separate from eachother. They were in lockup together throughout the trial, and their lawyers would come in and say, over and over, in front of my client and separate from him, that they were likely to get life due to my client's actions. At some point he said he'd take 8, not because he was guilty of the crimes, but because he may be guilty of something lesser, and he wanted to spare his brothers. Regardless, it's not my duty help the co-defs (brothers or not), although I did make all the consequences, to him and his brothers, perfectly clear to him.

Gideon - there is no basis for me to request a severance because it would hurt the co-defs to have a trial with him. However, the severance I made on separate issues was denied. The severance the co-defs made was also denied.

Dennis - I'm certainly not blaming myself, I just feel bad that this happened on my watch, or at all, for that matter.

totallyun-pc said...

Could you pop by mine and tell me if i'm barking up the right tree... I must say in mY defence, it was as a result of a conversation with another solicitor one night last week.

doubtslinger said...

Ouch. Tough one. I just lost a murder trial with a client in a similar situation. He's doing life and never killed anybody. (we beat the firearm enhancement, at least).

I just try to console myself with the fact that no offer was ever made.

It doesn't help.