"I am confused," a client told me a long, long time ago. "You are telling me I should take the deal, but you are also telling me you are prepared to fight the case." We were standing on the courthouse steps, preparing to begin jury selection in a high-stakes criminal case. "Which is it?," the client asked. The answer was simple -- both.
There is little in legal fiction or even in the musing among lawyers about the drama of plea negotiations. Plea bargaining is the silent and ever present reality of the criminal justice system. But it is neglected because it lacks the visible sport of trial. No witness takes the stand to pit his memory, motives and biases against the wiles of the cross-examiner. A plea bargain is a contract, most often negotiated behind closed doors and merely recited in public. Plea bargaining is, as a matter of public spectacle and entertainment, boring.
I follow the careers and exploits of great lawyers, hoping some of what I learn will rub off and that I can become a great lawyer myself. But what I read are about trials, and wins and losses. I don't hear about late-night or jailhouse discussions with clients about the zero-sum risks of trial. Gerry Spence says he never lost a criminal case; did he ever plead a man guilty to a charge when the facts and law were overwhelmingly stacked against the client? Is a negotiated plea recognized in the scorekeeping world of lawyers who keep track of such things?
I enjoy trial. It is what I do best among the lawyerly skills I possess. Yet I am rarely so confident of the outcome that I do not recommend a client think long and hard about the best deal I can get him. I view my role as serving as a mirror. I will reflect for a client the foreseeable consequences of the options present in a given moment. I will paint the two roads in colors as clear and distinct as the case permits. This is the easy part.
The hard part comes when making a recommendation to a client. Lawyering is more than rolling the dice; it is also deciding when to gamble and how much to stake. Clients become the equivalent of family at decision time. The standard I apply when recommending whether to try a case or plead guilty is typically the advice I would give to a son. Of course, it is never quite that. I remain detached with a client in a way I never could with a child. I could not represent myself or a family member in a crisis.
I am sometimes surprised by the decisions a client makes. Just this week, a client decided to enter a nolo contendere plea in an assault and firearms case. We had spent a week picking the jury and arguing pre-trial motions. I was certain that this case would go to a verdict. But there were nagging difficulties in the case, and they cast a shadow over all that we did as we prepared. Just as the first witness was about to be sworn, my client elected to accept an offer that carried with it far less imprisonment than was foreseeable in the event that we lost the case. It is the decision I would have had my son make.
But entering pleas always feels like a failure of a sort. Incarceration solves nothing. We imprison people for a broader arrange of offenses and for a far longer period of time than any other nation. We ask too much of the criminal justice system, and the result is often farce, not justice.
I had expected to spend the next week tossing and turning each night over the next day's evidentiary issues. I won't do that now. Instead, I can't help but wonder what would have happened had the case been tried. I am confident we would have beaten some of the counts, but as to others, our defense was difficult. An unseemly sense of machismo urged me to ignore the risks and plunge into the fray to see what would happen. But that would have been gambling with my client's life. It is easier to gamble than to compromise when you don't pay with your own liberty for a bad bet.
My client made the right call entering a plea. But I suspect he sits in a prison cell today filled with regrets. I have them, too. Walking away from a fight never feels good.