Wednesday, October 01, 2003

There are few things more intense than having a client plead guilty to a large amount of time. In the last year I have had clients plead guilty to 27 years and 25 years. On these charges, my clients will serve 85% of their sentences, meaning that they would get out in about 23 and 21 years, respectively.

Obviously, if one can't do the time, one should not do the crime, and obviously these were people who did very bad things. But, what is interesting about my work is that I get to know some people that most members of "polite" society would never know in any way except to feel menaced by them. I hold real and sometimes deep personal conversations with these people. In other words, I grow to have a certain affinity for some of my clients. Some clients I detest, not only because of the acts they have done, but because of their particularly unpleasant personalities. Others I like, in spite of the things that they have done.

Thus, these last two clients that I pled to long sentences affected me more than other cases in that I actually liked the clients, even though they were clearly bad actors. I didn't want to have them over for dinner, but I understood that they had family who loved them, I met that family, I saw they had children who would miss them, wives or girlfriends who loved them, and people that would feel the void of their departure (I guess I see this also for clients I find extremely unpleasant too).

The real dilemna in cases like this deals with the fact that on one hand, as a purely reasoned calculation, these people should be pleading guilty. There is frequently strong evidence against them, they face sentences which will guarantee that they never exit prison for the rest of their lives, and they wish to mitigate against such a possibility.

On the other hand, I stop and think of myself and what I've done in the last 25 years, and what I will do over the next 25 years. I think about my house which I will have paid off completely, I think about my children who will be out of the house, I think of the fact that I'll be retired then. This gives me an idea of where I will be when they get out, and then I consider all of the things I will do and enjoy in that period of time that they will never have happen to them.

Most people don't have to consider this as an active part of their life, but I remember the movie "The Shawshank Redemption," and the amount of time that the main character and Red were in prison. I remember how worthless Red was upon getting out of prison, how he could barely go to the bathroom without having a crisis of conscience. I wonder to myself what these two clients will look like in 20 years. Was it the best thing that they plead? Should they have just taken their chances at trial, and then hoped for the best on appeal if and when they lost?

One of the tough issues I face when this situation arises is what kind of advice to give. The last thing I want is for a client to think that he was forced by his (appointed) lawyer to plead guilty, or "dumped." As a result, I never try to talk clients into taking deals, I only lay out the issues for them, the pros and cons, the best possibilities, the likely scenarios arising from trial, etc.... I tell them that they can ask my advice if they want it, but I don't force it down their throats. The only thing that I will sometimes do is say something like I said to my latest multi-year plea. My client who just pled to 25 year had told me to make the DA an offer of 16-21 years (I offered 16). The DA came back with 31, so I told her specifically 21, she came back with 25. I told my client that if he was really willing to accept 21, then he should take 25, since the difference between those two was so little compared to what he was facing (never leaving prison). If the difference between the DA's offer and what my client wants is little, but the downside from not accepting is huge, I will tell my client that they should not be excessively proud about this, they should go ahead and take the deal. But, I only do that after they have told me that they want to plead guilty and that they'd take a deal close to what was actually offered.

Finally, for serious cases like these, I find that most of the hard work takes place prior to going to trial. The trial and closing arguments are the fun part, so I tend to have some misgivings feeling that I've done all the hard work without getting any of the fun stuff in return, and that I really should go all the way as a result. Of course, that is only what I feel, not how I act. I act in my client's best interest, whatever way that may be, and however he directs me. He has an absolute right to a trial, and I am prepared to fight hard for him. But, he also has an absolute right to plead guilty, so what I want doesn't really matter anyway.

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