To Plead Or Not To Plead?


It was a close call this morning. My client was accused of sexually abusing a minor by digitally penetrating her vagina. The child was five at the time. She claims it happened; my client denied it. There was no physical evidence to corroborate the child's claim. So we prepared for trial.

On the eve of evidence, a compromise was struck. My client would plead to a misdemeanor, and we would admit to no sexual misconduct. He will briefly be on probation. If a probation officer tries to require him to take sex offender classes, we can withdraw the plea. I feel pretty good about the outcome, although I am still pretty confident I would have won the trial.

In the end, it came down to this: I thought I would win the trial. If I did, no harm to the client. An acquittal and we both walk out the door happy men. But against the substantial risk of a loss, we agreed to a plea under the Alford doctrine, which permits a client to enter a plea of guilty without admitting the underlying conduct. The client merely acknowledges the risk of a guilty verdict and a desire to take the deal offered.

Is this justice? Plenty of people say pleas violate the spirit of the law. Hold the state to its burden of proof, we are encouraged. Besides, all the glamor is in trial. When is the last time you watched a legal thriller that ended with a decision to end a plea? Plea bargaining is the law's coitus interruptus.

But in this case, the plea makes sense. There are four harms to avoid for a client faced with a sex offense: The risk of a disabling felony conviction; the risk of incarceration; the risk of being required to register as a sex offender; and, the risk of being required to undergo sex offender treatment. In this case, we avoided all four, a clean sweep.

I cannot count this case a win, however. Neither do I regard it as a loss. The client is safe and satisfied in a let-down sort of way. I remind myself at times such as these that it is all about the client. By analogy: In this piece of social oncology the cancer was beaten back with a modest dose of chemotherapy. Case closed.

Comments: (1)

  • I don't know if you'd consider the show Law and Or...
    I don't know if you'd consider the show Law and Order to be a legal thriller, but many episodes end with the "bad guys" taking a plea, ending the trial.
    Posted on January 12, 2009 at 2:22 pm by DBB

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