Ambivalence and the Plea

I was in the office until about 8:15 last night. My last call of the day was a friend. "You sound exhausted," she said. "What's the matter?"

"I just put a tough criminal case to bed," I replied. "It was that manslaughter case involving a claim of failed brakes and reckless disregard of truck safety."

"I thought the case was going to last another month," she said.

"It was supposed to. But the state offered the client a walk, so we took it."

"Congratulations," she said. "You should be ecstatic. He was facing major jail time."

Entering a plea never feels like a win, and while I accomplished the goal of keeping the client out of prison, I also left a lot of fight on the table. I'll never know now whether I could have persuaded a jury that the state's case was poorly founded. My office worked hard on this case; I had alot to work with. Shouldering my weapons is hard now, just on the cusp of a firefight. I don't think I've ever walked away from the entry of a plea without feeling a stab of deep regret, even a looming sense of cowardice.

Criminal law is like that. You dangle daily between exhilaration and despair, settling most days for gnawing uncertainty.

The overwhelming majority of cases end by way of a plea. The state arrests, selects charges, gathers its proof, and launches its attack. A client comes, wide-eyed with fear and tells what he or she knows of the allegations. The defense then probes, looking for witnesses, hidden weaknesses in the state's case, paradoxes in the law than can explode and destroy the state's case. In the months and sometimes years between accusation and trial, the parties settle into to their trenches, occasionally poking their heads into the firing line to snipe at the other side. Like weary soldiers in World War I, the parties await the call to battle at trial, checking and rechecking their gear, making amends to the silent gods overseeing them and preparing as best they can to win while reckoning the likelihood of failure. Fateful bargains are struck with the gods in the pre-dawn hours.

In my case, the client owned a trucking company. One of his drivers was operating a dump truck one morning when the truck went through a stop sign, colliding with a small passenger car. The driver, a grandmother, was killed; her daughter and granddaughter were seriously injured. Police investigated and claimed brake failure, operator error and a host of regulatory violations regarding truck safety. My client was charged with reckless assault and manslaughter; the state contends he had a long history of operating vehicles unworthy for the road, and that he had actual knowledge of this truck's dangerous condition. My client claimed the truck was road worthy, and that operator error was the sole cause of the accident.

This was a case about trucks, maintenance and what caused a horrible accident. If I lost the trial, the client faced up to 20 years imprisonment; if I won, well, the client would walk away a free man without a record. Given the market in human suffering, a sentence of somewhere between 8 and 12 years was foreseeable on a conviction.

After three days of jury selection, I renewed my request to the state to consider a suspended sentence in exchange for a guilty plea to manslaughter. I had no particular reason to expect success. A similar pitch had failed many times before. But the state listened, and promised to go back to the victims for their input. Once the jury was selected, after four days of jury selection, we had hammered out a deal. My client goes on probation and his trucks are subject to periodic inspection; failure to keep them in safe operating condition could result in a violation of his probation and a trip to prison. My client plead guilty under the Alford doctrine, a legal ploy that permits him to plead guilty without admitting the state's factual allegations.

Win, loss, draw? Once again, the simple calculus of the sporting life fails to apply. There really are now winners in criminal courts, at least in cases involving death and serious injury. What there is is pain, sorrow and fear. In this case, these furies were appeased and my client, at least, was able to walk away a free man. That's an outcome I can live with, but it hardly inspires joy. The proceedings revolved around the death of a good woman and injury to her loved ones. Nothing good could happen in such a case. Nothing good did.

I won't linger long in this twilight. My orders were clear. Once this case was resolved, I was to report to another judge in another town. She has given me a few days to regroup and put things in order for a very different sort of case set to start next week: This case presents a different form of loss, a young girl is expected to testify there. Her claim is that her uncle fondled her, a claim the uncle denies. A different wind blows in that case, but the same scent of destruction hangs in the air. One client's war has ended, another now moves centerstage: Both are battles my firm has committed to fight, and the fight is, frankly, sometimes all that is.


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© Norm Pattis is represented by Elite Lawyer Management, managing agents for Exceptional American Lawyers
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