Counseling an innocent client to plead guilty

NY Daily News carries a gut-wrenching story:

"The kidnap-rape conviction of a once-promising prep football star was dismissed Thursday following a recantation by his accuser.     . . . 

In the summer of 2002, Banks’ future looked bright: He was a 17-year-old high school football star being heavily recruited by a number of colleges. But in a single day that changed with the accusations of kidnapping and rape by a female student. He maintained there was no rape and their sexual contact was consensual, but his lawyer urged him to plead no contest rather than risk a sentence of 41 years to life in prison if convicted. He followed the advice and went to prison for six years, shattering his dreams of gridiron glory."

The focus should be on Brian Banks, but I can't help but wonder: what is it like for a lawyer to advise an innocent client to plead guilty?  (h/t: Althouse)

Comments

[Patrick S. O'Donnell]

I can’t answer the question, but I suspect this occurs more often than we’d care to admit, especially for indigent defendants,* and given both the case loads of public defenders (including their wish to maintain a decent or working relationship with the prosecutor) and the nature and degree of the discretionary power of the prosecutor during the (largely invisible) plea bargaining process. For example,

“Even when the charges are more serious, prosecutors often can still bluff defense attorneys and their clients into pleading guilty to a lesser offense. As a result, people who might have been acquitted because of lack of evidence, but also who are in fact truly innocent, will often plead guilty to the charge. Why? In a word, fear. And the more numerous and serious the charges, studies have shown, the greater the fear. That explains why prosecutors sometimes seem to file every charge imaginable against defendants.” Martin Yant, Presumed Guilty: When Innocent People Are Wrongly Convicted (1991)

William J. Stuntz provides us with another explanation in The Collapse of American Criminal Justice (2011), “In the inevitably selective business of criminal punishment, selections are often made on perverse criteria. The lack of careful investigation that characterizes most felony prosecutions virtually guarantees that a significant number of innocent defendants are pressured to plead to crimes they did not commit. And within the much larger universe of guilty defendants, those who are punished most severely are often those who made the worst deals, not those who committed the worst crimes.” As Stuntz also notes, plea bargains “are no longer a means of settling easy cases, which is their proper role.”

Two examples that are perhaps representative and at least illustrative: See the case of Emma Faye Stewart as told in Angela J. Davis’s Arbitrary Justice: The Power of the American Prosecutor (2007): 50-52, as well as the 2008 film, American Violet. The latter

“tells the story of Dee Roberts (Nicole Beharie), a 24 year-old African-American single mother of four, living in a small Texas town (based after Hearne, Texas where the real incident took place). One day, while Dee is working a shift at the local diner, the powerful local district attorney (Michael O’Keefe) leads a drug bust, sweeping Dee’s housing project. Police drag Dee from work in handcuffs, dumping her in the women’s county prison. Indicted based on the uncorroborated word of a single and dubious police informant facing his own drug charges, Dee soon discovers she has been charged as a drug dealer.

Even though Dee has no prior drug record and no drugs were found on her in the raid or any subsequent searches, she is offered a hellish choice: plead guilty and go home as a convicted felon or remain in prison and fight the charges thus, jeopardizing her custody and risking a long prison sentence.”

Dee’s public defender counsels her to take the deal, and it appears he knew the charges were likely false: “In the film, the public defender urges the character named Dee Roberts to accept a plea bargain. The actual public defender claims he never tells innocent clients to take a plea.” Of course not, what public defender would publicly confess to such behavior?

* Keep in mind that even “grossly incompetent lawyering,” as Monroe Freedman reminds us, “is not enough to establish ineffective counsel,” and that the current criminal justice system—especially for poor people—is, in Freedman’s pithy characterization, “unethical, unconstitutional, and intolerably cruel.”

[Monroe Freedman]

I agree with Patrick about the evils of plea bargaining, which are heightened by prosecutors' overcharging for bargaining purposes, and by incompetent defense lawyers.

However, the defendant is entitled to know how the system works (i.e., coercing pleas to avoid the expense to society of honoring the right to trial by jury) and to be counseled to take a plea to a lesser offense rather than taking the substantial risk of spending the rest of is life in prison, or being executed. The issue is discussed in ULE 58-62(4th ed., 2010), including a discussion of the dilemma of the lawyers representing the Unibomber, who was refusing to take the plea that would have saved his life.

[John Steele]

Patrick, thanks. There is also a well done scene in the movie Criminal Justice where the lawyer and client discuss the pros/cons of pleading guilty to a crime that they know the client didn't commit.

[Alice Woolley]

I think this is one of the most difficult ethical dilemmas for defense lawyers, and it is heightened by criminal justice systems which make the consequences of conviction so extreme. In Canada it is unethical for a lawyer to counsel a client to accept a guilty plea unless the client can honestly attest to the factual and mental elements of the offence (i.e., does not plausibly maintain his or her innocence). But as we move to a more extreme criminal justice system, with the introduction of severe mandatory minimum sentences for a broad variety of crimes, criminal defence lawyers have to weigh the factors noted by Monroe. That is, they need to be honest with their clients about the likelihood and consequences of conviction given how the system works. What is the balance between the existential harm of a wrongful confession and the lived harm of a life of incarceration and all of the subsequent consequences to that?

When I present this issue to my students they generally want to avoid the hypotehtical - show how they will be able to obtain an acquittal for the client. But that just evades the basic problem.

I think one of the best discussions of this is in Abbe Smith's book, Case of a Lifetime, when she talks about the fact that the client she represented did not take a favourable plea deal becaue the client was innocent, and ended up spending decades in jail as a result. Abbe does a terrific job of laying out the ethical problem, and making it clear where she thinks the duties of the lawyer lie.

Ultimately perhaps this is a case where the solution lies with the prosecutor - to not play the game of piling on charges to make the consequences of not taking a plea so extreme. But prosecutors are under pressure too, and they have to live with a system which puts the mandatory minimum sentences in place. It's not obvious that simply declining to apply the laws is ethical for a prosecutor either.

[Paul Raymont]

There's a recent Canadian case of a man who says he was advised by his lawyer to confess to assault (with a knife) even though he was innocent. The man in question, Anthony Hanemaayer, was later released from jail when another man confessed to the crime. Hanemaayer then sued his lawyer. There's an entry on Hanemaayer in Wikipedia at http://en.wikipedia.org/wiki/Anthony_Hanemaayer . Here's a link to his 'statement of claim': http://www.cbc.ca/news/pdf/hanemaayer-statement-of-claim.pdf . The case doesn't seem to have been resolved yet.

[John Steele]

Paul & Alice, thanks for commenting. The duty described by Alice and as recounted in the statement of claim is that a Canadian lawyer may not ethically participate in a guilty plea where the defendant asserts innocence. Does Canada have a "nolo" plea? What should the ethical lawyer do in that situation?

[Paul Raymont]

I wish I could help with that question, John, but I'm not a lawyer. I just keep a record of wrongful convictions and false confessions to appeal to in some of the ethics classes that I teach.

[Monroe Freedman]

Prosecutors have no ethical obligation to overcharge (charging more than the conduct warrants, and including surplus counts) for bargaining purposes, which is a common practice in the U.S., if not in Canada.

[Richard Zitrin]

Back in my days as a criminal defense lawyer, a friend of mine gave me a book to read called "One Just Man," by James Mills. It's about a Legal Aid lawyer in NY (the equivalent of a public defender) who starts to refuse to plead his clients guilty. Short version: It grows, the whole criminal justice system falls apart, and then all of society.

OK, it's a little far-fetched. But the point was the the pre-trial detaining of those like this young man puts an ENORMOUS pressure on them to plead guilty or spend two years awaiting time in "the Tombs." Or, as in this case, going up against an accuser with everything at risk.

Like many ethical issues, and like many problems in the legal system, it comes down to money, and what people have what kind of access.

[Alice Woolley]

John, you can't plead no contest in Canada (I'm assuming that's what you mean by a nolo plea). The only options are guilty or innocent.

[Hugo S. Cunningham]

Guilty pleas (especially nolo pleas) by innocent people, on the advice of competent and ethical attorneys, are much more likely when there is a huge difference between the plea-bargain penalty and the prescribed penalty for conviction. An innocent man is likely to fight a murder charge, since the plea on offer is still going to be a long term in prison. For sex accusations, however, especially ones involving children, someone who plays along with the system may be offered an easy deal of counselling and probation, in contrast with multiple concurrent life sentences on conviction.

See for example the "Mineola TX swingers case,"
http://www.texasmonthly.com/2011-06-01/webextra2.php
manifestly absurd to any reasonable person, but "reasonable" does not describe authorities in many parts of East Texas.