The Prosaic Reality of Plea Bargaining
“No man is a hero to his valet,” an old proverb has it. I think of it often when making a difficult recommendation to a client. Folks want their lawyers to be heroes. Sometimes lawyers are able to fulfill that role; more often, especially in the context of criminal plea-bargaining, reality is far less heroic.
Consider the following cases:
A client is accused of murdering his best friend. The decedent was shot to death while sitting in the front seat of a parked car. Next to him in the passenger’s seat was a confederate, someone eager to learn the dark arts of drug dealing from the victim. The client, a convicted felon, was in the back seat of the car.
The dead man was shot once in the neck. The two men in the car with him fled.
A short time later, police learned the client was in the car. They question him. Despite his years of experience sparring with the law, he agrees to talk. He tells officers his friend was showing a gun to the man in the passenger seat. The client asked to handle the gun. As it was passed from the front seat to the back seat, the gun went off.
Not really. Murder is what the law calls a specific-intent crime. To be guilty of it, a person must have the conscious objective of causing death and then causing death. The confession, if believed, did not amount to murder; at most, he confessed to manslaughter, to behaving in a reckless manner with a gun and thereby causing death.
The state offered the man 18 years in prison if he were to plead to manslaughter. We were hired to try the case.
Preservation of the attorney-client privilege — the privacy of discussions between lawyers and their clients — prevents me from telling the whole story here. Suffice it to say that 18 years was more than our client could accept.
We told the judge we were ready to try the case.
The state budged in the end. On the eve of jury selection, we negotiated a plea bargain requiring the client to serve 11 years.
It is heartbreaking to recommend a plea to a client. It feels like betrayal. But what is worse than this form of betrayal is standing next to a client sentenced to 55 or 60 years in prison. No lawyer can guarantee a client a victory at trial. All we can offer is a fight. Practice law long enough, and you learn that the fight is all there is. Sometimes wisdom requires pragmatism.
Our client accepted the 11-year offer.
The following month, we were called to trial in another murder case in a different city: This case, too, involved drugs and guns — a scourge infecting cities nationwide.
The state did not believe our client shot and killed the victim. Rather, the state viewed the shooting as part of a drug deal gone bad. The client was charged with felony murder, a crime involving the death of a person in the course of committing another serious crime.
Efforts to resolve this case by way of a plea appeared futile. Co-defendants of the client’s had received long sentences after pleas or verdicts. He wanted no part of that, and insisted he was not involved with the murder.
The state wouldn’t budge.
A day or so before trial, the state offered the client a chance to plead to hindering prosecution, in this case by arranging to have his co-defendants driven away from the vicinity of the shooting by a third party. After extensive dickering, the state and judge agreed to a sentence of 10 years.
Once again, the sense of betrayal rushed to the surface. The client no doubt wanted a miracle; we offered a pragmatic compromise. He is no longer looking at the possibility of a 60-year sentence. Instead, he could be home soon, if he is granted parole.
In both cases, I was brought in to try the cases, and I relished the fights. Instead of month-long courtroom battles, the cases ended with whimpers. I could sense the clients’s disappointment, or, perhaps, I projected my own disappointment.
Criminal defense lawyers have a responsibility to get the best outcome they can for their clients. That means engaging in the distasteful work of plea-bargaining, even if the client doesn’t want a deal. In the criminal courts, the client decides whether to enter a plea or not; the lawyer’s job is to make options for the client to choose.
That can yield misunderstanding. Advising a client to accept a plea offer is a tightrope walk. There is a danger the client will question your loyalty to his cause. Why are you telling me to consider a plea? Don’t you believe in me? Some clients even suspect that a lawyer recommending a plea is working too closely with the government.
Lawyers are social oncologists. We treat folks struggling with an invasive tumor — in this case, the state. We seek a cure if one can be had, but, if it can’t, then we recommend ways to save as much of the client as we can. Sometimes that means accepting time behind bars, the functional equivalent of amputation. We’re not trained for such work. No internship prepares a lawyer for the delivery of life-altering options.
We are trained to expect clients to be rational. We must bargain in the law’s shadow, as it is sometimes put. Whoever believes that is a mere academic, untrained in the toe-to-toe combat of client counseling. The real shadows in a criminal case are more often cast by a client’s demons; those demons often come from a place perilously close to mental illness.
Clients reject lawyers’ advice all the time. “You can lead a client to the courthouse, but you can’t make them think,” many a lawyer has muttered.
“No man is a hero to his valet.” Okay. I get that.
But I think the German philosopher Georg Wilhelm Friedrich Hegel completed the aphorism aptly: “This is not because the hero is not a hero, but because the valet is a valet.”