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.

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


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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