What's Wrong With New Year's Resolutions?

I am an irresolute man. On the one hand, I am inclined to think "x"; but then, he other hand comes along and "y" seems to be the case. I always resolve to be resolute come the New Year, but resolution never comes. I just end up looking stupid.

I am glad I am not alone in this regard. Simple Justice reports on a Gage County, Nebraska lawyer who has decided he will no longer engage in plea bargaining on behalf of his clients. Sounds sexy, doesn't it? Riding high in the saddle and demanding that the state stop over-charging in the name of justice. So much swagger; so little sense.

Has this new ubermensch for justice put his malpractice carrier on notice?

Each and every crime in the United States is composed of two things: a prohibited act and a culpable mental state. From this mix of unhappy circumstance lawmakers weave criminal codes. Prosecutors have enormous discretion in what to charge. A sad reality is that clients are often overcharged, the better to frighten them into a plea bargain: "Honey, honey," the defendant exclaims, "the state has dropped the murder charge. I am now charged with negligent manslaughter."

That may sound like a bargain, but suppose the hapless defendant is not culpable in the death of the victim? Has he been hoodwinked into entering a plea for the wrong reasons?

The problem of overcharging can be dealt with in at least two ways at trial. First, a defendant can hold the state to the burden of proving the crime charged. A smart and courageous jury will sense the injustice of overcharging, and may well acquit.

Either side can also request that a jury consider what are known as lesser included charges, typically versions of the offense accompanied by a less culpable mental state and carrying a far lesser penalty that the top charge. The danger with such charges is that it encourages jury compromise. Jurors may be troubled by the conduct of the defendant, but not enough to give the state all it asks for. The compromise results in a conviction for something less.

The better solution would be to give judges the right to substitute lesser charges on the the defendant's motion. But this solution is far from fool proof. Courageous judges are rare.

Trial is risky. Innocent men are convicted, and folks who have done just what they are accused of doing sometimes walk. Trial is not perfect. But the risk of chosing trial or not belongs exclusively to the client. We lawyers don't get to play God with our client's lives.

A lawyer refusing to plea bargain effectively deprives his client of the right to make decisions about how best to manage the risks he faces. In some jurisdicitions, a refusal to negotiate may well constitute a violation of a defendant's constitutional right to effective assistance of counsel. I don't know the law in Nebraska, but I do know this much: I wouldn't consider hiring a lawyer who was not prepared to explore every option in defense of my liberty. I'd listen to what he could do on a plea, and if I didn't like the options, I'd stand trial.

I guess that means I wouldn't hire a lawyer who promised to do only a part of his job.



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