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Let's Make a Deal: the Joy of the Old "In-and-Out"

I’ve said before that I hate plea bargains. I think they should be illegal. They have become little more than a bludgeon that puts too many innocent people in jail, or prison, and imprisons even too many guilty people for longer than they might be if the case were properly litigated.

Nevertheless, plea bargains are sometimes the best option, and when they are, I have been known to concur with my clients when they decide to accept one. I’ve also been known to argue with clients, when I thought that accepting a plea agreement was not in their best interests. When asked by the court if I concur in my client’s plea, I’ve gone so far as to put it on the record — and just did so again as recently as a couple of weeks ago — that the client was taking the plea against my advice, but that doing so was my client’s option under the law, and not mine to abrogate.

In juvenile cases, I have more than once simply refused to concur. Juvenile cases are different. My express job is to look out for the best interests of my kid, and not just rubber-stamp the immature decision which is too-often based on a usually-false belief that it will get them out of custody quicker.

Despite these tendencies on my part, I still often feel that too many of my cases result in plea agreements. No small part of some people’s calculus is that they don’t want to have to pay more money — sometimes cannot pay more money — for trial. I mean, why not just go with the public defender, then? At least you have a shot. But if you take a plea, you’ve caved, without even a fight. And so, lately, I tinker with my fee schedules to try to encourage more people to fight.

But that only goes so far. After all, I’m (almost never) going to take a case to trial without being paid anything at all.

So it was that I read, with more than my usual amount of interest, a recent blog post by Scott Greenfield.

A civil attorney wanted him to take the case, and plead the client outwithout any consideration of whether or not that was the right move, without making his own assessment.

If he had done so, that would constitute ineffective assistance of counsel in my state. Here, the failure to investigate constitutes ineffective assistance of counsel. I know this is also true in other states.[1] Without turning this into a law review article, failure to consult with experts can also constitute ineffective assistance of counsel, as can the failure to obtain discovery.

A defense attorney’s work requires more than simply taking a case in order to plead someone out. Even if I thought there might be a reason to consider plea negotiations — and Scott, and others, might castigate me for saying this, but sometimes after an initial investigation, such reasons do surface — doing what a criminal defense attorney is supposed to do will make that process more likely to inure to a client’s benefit. This remains true even when it comes to plea bargaining.

And note that I did say that one at least needed to do an initial investigation, so I’m reiterating that I agree with Scott that agreeing to take the case in order to plead someone out is something a defense attorney does not do. If you think differently, perhaps you should have been an art history major.[2]

Too often, people — potential clients — who consult with me want a reduced fee because, like the attorney who called Scott said, the case is easy peasy… “in and out.” Sometimes it’s because they think their case is such a slam-dunk win that all I have to do is show up in court, and we’re done.[3] Just as often, it’s because they “just want you to get the best plea possible.”

But when someone pulls the old “in and out” move on you, you’re usually getting fucked.

Max Kennerly, lending his immense lack of experience and wisdom to Scott’s blog, doesn’t get this.

Kennerly is not a criminal defense lawyer. He’s been practicing law about as long as I have, although so far as I can tell, his experience is in personal injury, and possibly wrongful death; not criminal defense. I have practiced only criminal defense, which I began doing after having served internships for two years prior to being sworn in — again only with criminal defense attorneys. My cases seldom are small matters, and I’m seldom happy when they settle “out of court.”

My experience in criminal defense teaches me (at least) two things:

1) You must do your own evaluation, even when (especially when?) it’s a referral, because frequently the referrer has done a poor evaluation based on too-limited facts, usually based on nothing more than a quick consultation with the referring attorney, who may, or may not, be a criminal defenseattorney.

Surprisingly, clients frequently misapprehend their own culpability. In relaying “the facts” to the attorney, they often come out looking better than they should. But they just as often come out looking worse than they should. They believe they committed a crime when — due to overcharging — they often did not commit the crime with which they are charged. But if you fail to investigate, you won’t know that.

And if you’ve agreed to take a client’s case because it was easy peasy, and you’re going to give him the old “in and out,” then why would he pay you for an investigation? A client insistent on accepting a plea agreement out of the gate is not going to want to spend “unnecessary” money just because you are guilty of providing ineffective assistance of counsel if you don’t do the investigation.

2) There’s no such thing as easy peasy.

So true is this that when a potential client brings it up, I immediately start tacking on extra dollars to my quote. A potential client telling me this not only is almost always not right — and by “almost always” I mean 99-point-999999999 99999999999999999999999999 percent of the time — but it also tells me that the potential client is by a nearly equal percentage going to turn out to be a difficult client. Clients who know they are “guilty” can be harder to deal with because they don’t want a defense attorney to do his job. They’re scared. They want things over with. They want the old “in-and-out.”

Again, why not just go with the public defender? It’s not like private attorneys are, on average, more handsome than public defenders,[4] although some do dress more nicely. Plus, a public defender tends to be a cheaper — and not infrequently better — date.

And if you’re so eager for an offer, the prosecutor is going to realize this. Having a private attorney isn’t going to result in a better offer than you would get with a public defender. I recently had a client who — in court; in front of the judge, the DA, and everyone else who was there — loudly argued and was angry with me because he wanted to take the offer, made before I’d even received any police reports, or any other discovery, and I had told him to “wait until I can at least read the police reports.”

Not that that would have been enough. But, hey…at least!

Kennerly would argue argues that this isn’t in the client’s best interest. He chastises Scott, saying,

You knew what you wanted to do, despite having never spoken with the client about what he wanted to do….

Not being a criminal defense attorney — nor a criminal law attorney at all — Kennerly doesn’t realize that what Scott wants to do is what Scott is required to do. By law.[5]

Scott, exhibiting more patience than I’ve ever seen when trying to educate the seemingly-uneducable, says,

But since you’ve decided to inform me of your great PI work, consider this analogy: the birth injury cases are referred by a lawyer who has informed the parents, who are poor, hungry and desperate, that they can score a quick $10k settlement but no more because of poor liability. He sends them to you on condition that you settle the case for $10k as soon as possible, without any investigation into liability or damages.

Do you take the case on that condition? Do you settle for $10k without investigation into liability or damages? Do you take the case and do nothing more than call the carrier, ask for an offer, and take whatever they give you? Well, maybe you do.

Unsurprisingly, Max still doesn’t get it.

First, offers in tort cases don’t tend to ever go down, and certainly not in the pre-trial stages. No insurer ever lowered an offer because a complaint was filed and some discovery was taken. By your own argument, this isn’t the same in criminal defense, where your offer can get worse by way of an aggressive defense.

So, once again, experience. In my experience, offers tend to get better after a proper investigation, coupled with an aggressive defense, by the defense attorney. Let’s remember one of the primary reasons that the plea agreement came into existence in the first place. Unsurprisingly, it’s one of the benefits of America’s first experiment with Prohibition.[6] Prosecutors, and judges, overloaded by the record number of Americans being arrested, could no longer deal with the crush. Indeed, there is today a fairly widely-held — and almost certainly correct — belief that if people suddenly quit taking plea agreements, the entire American system of “justice” would grind to a halt.

First, it’s less expensive and time-consuming than jury trials, which means prosecutors can haul more people into court and legislators can add more offenses to the criminal code. Second, by cutting the jury out of the picture, prosecutors and judges acquire more influence over case outcomes.

On the flip side?

From a defendant’s perspective, plea bargaining extorts guilty pleas. People who have never been prosecuted may think there is no way they would plead guilty to a crime they did not commit. But when the government has a “witness” who is willing to lie, and your own attorney urges you to accept one year in prison rather than risk a ten-year sentence, the decision becomes harder. As William Young, then chief judge of the U.S. District Court in Massachusetts, observed in an unusually blunt 2004 opinion, “The focus of our entire criminal justice system has shifted away from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused.”

The best way to level the playing field? Zealous advocacy. Something that cannot be done without a clear understanding of the case, which will usually only come after some investigation, and legal research. And criminal defense attorneys don’t just poke the bear for fun — sometimes that yields information, as well. The bear wants the case the settle. If your client also wants to settle, poking the bear can help resolve the question of what to settle for. Despite my differences with prosecutors, I can’t remember ever encountering one who refused to allow me to do my job by suggesting that if I did he would increase the penalty to my client.[7]

Kennerly’s second argument fairs no better.

[Y]ou had an investigation of some sort, plus an informed client and reasonably knowledgeable referring lawyer.

No, he didn’t. Not the way Scott told the story, anyway, and that’s the only evidence of “an investigation of some sort” that Kennerly has to which he can be responding. Let’s say, for the sake of argument, that Scott was fudging — that his non-big-law-defense-lawyer bias was getting the best of him — was the referring lawyer a criminal defense attorney? Or another Max Kennerly, albeit possibly more experienced?

I know some mighty-fine personal injury lawyers — in fact, I’m going to go one better: I know a well-respected very-experienced retired public defender — who sometimes refer cases to me. These lawyers are usually referring people to me because they believe that I have more experience than they do regarding the cases they are referring.[8] Sometimes, during the referral, they proffer an opinion, as happened with the referral Scott received. I listen politely, make no promises, and set up a meeting to interview the potential client. Max Kennerly would be surprised — Scott Greenfield, and other criminal defense lawyers would not — at the number of times my assessment differed from that of the person who referred the potential client to me because I had more experience with such cases than they did.

The fact of the matter is that there is no decent criminal defense attorney who isn’t going to flinch at the offer to take a case offering the old in-and-out.

Unless you’re a sex worker — Maggie McNeill, to whom I would have to defer on this, might disagree — the old in-and-out is not such a great deal.



Footnotes
  1. For example, see Melton v. State, 987 S.W.2d 72 (1998). The feds have also similarly ruled. Wiggins v. Smith, 539 U.S. 510, 535–38, 123 S. Ct. 2527, 2542–44, 156 L. Ed. 2d 471, 493–95 (2003); Appel v. Horn, 250 F.3d 203, 215–18 (3d Cir. 2001); Moore v. Johnson, 194 F.3d 586, 615–19 (5th Cir. 1999); Holsomback v. White, 133 F.3d 1382, 1386–89 (11th Cir. 1998); People v. LaBree, 34 N.Y.2d 257, 259–61, 313 N.E.2d 730, 731–32, 357 N.Y.S.2d 412, 413–15 (1974). [↩]
  2. That was for you, Scott. [↩]
  3. These people are especially fun to talk to when they’ve already been to court five, or more, times over the last six months, and the case hasn’t been dismissed. [↩]
  4. Present company excepted. [↩]
  5. See case law cited above, which appears to also be the law in New York, where Scott practices. [↩]
  6. See Fisher, George, Plea Bargaining’s Triumph: A History of Plea Bargaining in America. Stanford University Press (2003). [↩]
  7. The “trial tax” is another question, altogether. [↩]
  8. That’s even true of the well-respected very-experienced retired public defender, who has referred juvenile cases involving criminal charges to me because he knows enough to know that juvenile cases are different than the adult cases his experience covers. [↩]
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