Sep
06

Trying the "Inevitable" Case

It is not uncommon in the practice of criminal law to counsel a client unable to make a choice. The alternatives are frequently too bleak. Regardless of whether your client has committed the act that results in prosecution, what's passed is past: Should the client plead guilty to a fifteen year sentence or run the risk of trial and a sentence potentially far longer?  Of course, the answer depends in large measure on his odds of success at trial. Serving no time behind bars is the best outcome of all. It is the not-so-secret hope of every defendant.

What is a lawyer's responsibility when a client cannot focus on the alternatives?

I suppose physicians must confront this all the time. A patient is suddenly undone by a savage cancer. If the disease is left untreated, the result is foreseeable and all but certain. With treatment, there is some hope, no matter how remote. I suspect in medicine desperate people cling to unreasonable hopes, and consent to treat is easily obtained. The patient who refuses treatment is the outlier. In those rare cases where a patient is immobilized, the law steps in to determine whether the patient is capable of managing his or her own affairs. The presumption in favor of life makes fatalism seem irrational.

In criminal law, I've seen clients simply stuck, trapped between the proverbial rock and a hard place: They are unprepared to accept either the risk of trial or the plea offer tendered by the state. In such cases, the client all but screams: "Stop the boat. I want to get off." But there is no stopping the juggernaut of a prosecution. Inability to make a decision means the prosecution proceeds; trial is the default position in a criminal case.

What can medicine teach lawyers about this form of despair?

Medical ethics revolve around the notion of patient autonomy and its corresponding legal doctrine of informed consent. A patient trying to look a potentially fatal illness in the eye must, I suspect, be given a candid assessment of his or her options, and the risks of proceeding, or of doing nothing, must be explained. It seems to me that a physician is required to explain what can be done; the patient then signs off. But when a patient is incapacitated by the choices, the potential to appoint a conservator of the person renders it possible to end a stalemate caused by despair. A person incapable of making a choice is not treated as autonomous, but as a soul in need of help.

There is no equivalent to conservatorship in the law. Standards for incompetence are extraordinarily high. A client must either be unable to understand the nature of the charges or to assist in his or her own defense. The law says nothing really about a client's inability to intelligently weigh risks. Thus, a client gripped by fear and despair and unable to choose becomes a pawn of the system. Even the incompetent are held until such time as they are restored to competence.

It seems to me that in these hard and heart-breaking cases lawyers are ethically obliged to behave like good doctors: Perform a diagnosis by assessing the strength and weaknesses of the state's case, and then make a prognosis of the likelihood of success or failure and the consequence of failure. Provide the client with choices, and help the client make the choice by recommending what best serves the client's interests. Of course, such a course runs the risk of paternalism, the polar opposite of informed consent's vision of autonomy. But often clients have few resources other than a lawyer's shoulders to which to turn. Like it or not, you are good doctor, priest and lifeline. These roles are not the stuff of legal education.

I am aware of a troubling non-death capital case which the lawyers thought they could win at trial. The client insisted he was innocent of the charges. As a result, defense counsel refused even to plea bargain. The court did not insist that the parties try to agree on an outcome short of trial. The client, locked in hope, went to trial and was convicted, and now serves life without possibility of parole. I cannot escape the lingering suspicion that the lawyers in that case did only half the job they were retained to perform. A lawyer, like a doctor, should not blindly endorse the hope of a client. A lawyer's job behind closed doors is to play the role of loyal opposition. "What if," the lawyer should say, "what if you are convicted despite the odds?" A client should be given choices.

A client once confronted me on the courthouse steps the day jury selection was to begin. He was confused. Why?, I asked. He complained that I told him I was ready to fight the case to a verdict at trial, but I was still recommending that he consider the state's offer of a plea. Which was it?, he asked. The answer, of course, was both. The choice was the client's, not mine. My job was to be prepared for any possibility, governed only by the client's informed decision.

Note to Anon:  I didn't post your snarky note. It was just too vituperative. No, I don't think I have the right to decide for a client. No one does. But there are hard cases where the client can't choose and the law simply grinds on. That was the point. I am sorry it was not clear enough to suit you.

And because some clients cannot make the difficult choices a criminal prosecution requires, a lawyer needs always to be prepared to try even the hardest case. Some days the fight is all we have to offer. It is enough for me. I worry, sometimes, that the law fails defendants, however.
Comments (4)
Posted on September 11, 2010 at 9:39 am by Anonymous
The real difficulty for the lawyer comes when the ...
The real difficulty for the lawyer comes when the best practical advice is to accept a guilty plea to a crime that the defendant did not commit.

There are circumstances where that is the correct option from just about every point of view.

OTOH, I won't do it. I'll tell the client that they should take the plea and send them to someone else to do the dirty deed, and maintain my opposition to the prosecution itself on the record, if possible.

That, for me, is the proper balance between the obligations to the client's best interests and the integrity of the courts.

Posted on September 6, 2010 at 12:21 pm by Mad Jack
Here are your choices, and here are the correspond...
Here are your choices, and here are the corresponding ramifications of each choice. If asked, you should provide your own choice along with the reason why you selected this particular option. If the choice involves prison time, describe what prison is like and how someone gets along in prison, including how the time might be spent to provide a better life once the prison sentence is over.

We all watch too much TV. Be sure to illustrate the difference between reality and TV, along with the reality of being incredibly wealthy (OJ Simpson) and damned dead broke (disenfranchised poor with a public defender) versus the State and the State's budget.

Another thing to point out is the difference between client time and court time. During client time, each second goes by with the same agonizing slowness that is felt by a patient being worked on by a clumsy dentist; the client wants the procedure to be over and done with, and it won't be. Court time proceeds at the same pace as, say, an ice age, and enjoys the same inevitable selective destruction of civil rights as well.

Posted on September 6, 2010 at 10:34 am by Jeff Gamso
We are counselors, not merely explainers, at law. ...
We are counselors, not merely explainers, at law. We have an obligation, it seems to me, always to be ready not merely with the fact that there is this or that offer but with an evaluation of the offer. We don't choose for the client, but surely we recommend. That is what experience and training and the detachment of not being too close enable and require of us:

Here is my recommendation and here is why.

A client who will not choose has, of course, chosen. That, too, needs to be explained. But for us to simply report:

Here's option A; here's B. Let me know by Thursday.

That, I think, is not doing a significant part of our job: helping the client make the choice. The real debate, I think, is over how hard to push what we believe the wiser choice.

Posted on September 6, 2010 at 7:48 am by Marcus L. Schantz
Good post Norm. I have a client currently that's i...
Good post Norm. I have a client currently that's in a very similar situation. He has 5 pending cases all of a similar nature. The minimum sentence on 1 case is 21 years at 85% time. The State offered 12 years at 50% but he won't take the offer. And his cases are dogs. There's a confession. Police surveillance. Tons of physical evidence, etc.

Instead he has sat in the county jail for the last year with regular trips to the law library. He thinks he has found a loop-hole out of this mess. He asked me to file a motion to quash arrest. It's not a good motion, but I filed it. A hearing is near.

What baffles me is how unrealistic this young man's expectations are. He has failed to accept responsibility for what happened through a series of rationalizations that make no sense to me.

I have told him repeatedly his matter is a dead loser at trial, but he won't hear it. Instead he replies "if they want to give me that much time (12 years), they're going to have to earn it."

I cannot get him to really see and feel the trial exposure. He thinks this is some game. And I fear I have failed him since after a year of my counsel, he still thinks it's a joke.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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