Pleading Guilty

As much as defense attorneys like to brag about their courtroom victories, there is less boasting about a good plea bargain. Yet out of my 50 or so new cases a year, the vast bulk of my cases--over 90%--end up in plea bargains. This percentage holds for nearly the entire community of defense lawyers.

One obvious reason is that very few defendants are falsely accused. That is, consider the most frequent case: driving under the influence (DUI). Rarely is a person charged with DUI who was not driving and drinking some alcohol. Whether the prosecutor can prove the person is 'under the influence' of alcohol is almost always the key question. This is a narrow space to maneuver in for the defense. 'Under the influence' is classically defined as: "whether the ability to drive is lessened in any appreciable degree." In the alternative, the prosecutor can prove that the breath test was .08 or higher, without ever having to prove the driver was actually 'under the influence.' In the latter case, there may be technical attacks on the accuracy or validity of the breath test. But if those are unsuccessful, then the higher the reading is over .08. the harder the case is to win. And few cases are filed where the breath test is under .08.
Similarly, if there is no breath test, the prosecutor has a professional witness in the person of 'Officer Friendly' whom the jurors tend to believe has no axe to grind. The officer would have given various 'field sobriety tests' and made numerous, detailed observations. If the driving is bad, then it is a tough case even without a breath test. The bottom line is that an offer of negligent driving in the first degree or reckless driving is hard to turn down.

One reason prosecutors offer plea bargains is that they have a staggering work load, which continues to rise with budget cuts. They have to save their resources for the most serious cases and the ones that are easiest to prove. For example, I had a felony assault case, stemming from a fight at a rock concert. My client was accused of starting it, although he and his brother-witness said the 'victim' started it. In any event, the fight ended when my client took a nasty bite out of the 'victim.' We argued with the prosecutor that this was self defense against a larger, equally drunk opponent. The prosecutor countered that it was an unreasonable use of force. In the end we got a misdemeanor assault plea bargain after we un-covered the 'victim's' prior record for felony assault. This 'proof ' problem got the result we wanted. The client kept his job and would not lose his civil rights, but he was held responsible for the out-of-pocket bills of the 'victim.'

A third reason plea bargains are popular is that the alternative of trial for many defendants is too risky. The greater the potential punishment for going to trial and losing, the greater the likelihood for a deal. As longs as there is a reduction in the charge, or a reasonable sentencing recommendation from the prosecutor, then a plea may be entered. In federal court, where the prosecution rarely has 'proof problems,' the risk of trial is very high. So often in federal drug or gun cases, there is also mandatory minimum time looming. A person charged with growing 100 or more marijuana plants is eligible for a five year minimum sentence after losing a trial. Typically the defense has to seek some bargain to get around the five year minimum which a judge almost never can reduce after a trial. Hence a deal is struck.

What if a defendant says he is innocent but still wants to plead guilty given the uncertainty of trial? I hate that. For starters, I usually tell my clients that I don't like pleading them guilty if they don't think they are guilty. Secondly, there is no such plea as 'nolo contendere' in Washington. The only pleas are "guilty, not guilty or not guilty by reason of insanity." "Nolo contendere,' meaning 'no contest,' exists in some jurisdictions. But it still means you get sentenced and have a record.

In Washington there is one other possible way to plead 'guilty.' It is known as an Alford plea. It is based on the case of North Carolina v. Alford where the defendant was facing the death penalty for murder. He did not believe he was guilty of murder but he wanted to take advantage of the prosecutor's promise not to request the death penalty. So he pled 'guilty,' but in his statement for the plea, he said he 'did not commit the murder' but felt that due to the strong evidence against him, a jury would likely find him guilty, so he was pleading guilty to avoid the death penalty. The Supreme Court upheld his reason and statement for 'pleading guilty.' But like the 'nolo contendere' plea, a person who enters an Alford plea still has the same record and gets sentenced by a judge.

In many cases, prosecutors will not accept an Alford plea for a variety of reasons. For one, it deprives the victim of a a measure of satisfaction. It also undercuts any treatment condition the prosecutor may demand. Many prosecutors also believe, incorrectly I would add, that an Alford plea is easier to withdraw from. From my point of view, an Alford plea can be harmful at sentencing. After all, when facing a sentencing judge, it may mitigate the punishment where the defendant accepts responsibility for the crime and shows some remorse. If he entered an Alford plea, it is much harder to ask for a lesser sentence on that ground. So, when entering an Alford plea, the defendant should not expect something less than what the prosecutor recommends.

Sometimes a good plea bargain has to be earned by the lawyer raising legal issues in motions or preparing for trial. This might reveal weaknesses in the prosecutor's case such that an offer is made before a final decision. On the other hand, many prosecutors will threaten dire consequences, such as no more bargaining, if a pre-trial motion is filed. Despite this warning, many defendants still believe that their lawyers must file motions and make the prosecutor work to get the best possible bargains. This can be true but it depends on the case and the prosecutor.

A common concern for defendants is that usually there is no legal guarantee that the judge will follow the plea bargain at sentencing. In most cases, this fear is overblown as judges show their support for plea bargains by nearly always following them. After all, it clears the docket of thousands of cases each year. Yet now and then a judge does not like a particular plea bargain. When this happens, it typically involves a murder or rape charge with a very low sentence or extreme reduction. A good lawyer should know their case has that problem and warn the defendant in that instance before the plea is entered.

In the end, plea bargains are made frequently as prosecutors, defendants, and the courts benefit from them. Be wary of any lawyer who says he only fights and goes to trial on all of his cases.

Why Do We Let Them Re-Offend Again and Again?

Over the weekend there was a horrible tragedy in my neighborhood: 3 young men were killed when their car slammed into a metal pole at high speed; and a high school girl who was seriously injured is not out of the woods yet. It is unknown whether alcohol was involved, but the police have now named the driver. It turns out he had a pending DUI case, where he allegedly blew a .14 breath alcohol which is nearly twice the limit of .08 for those over 21. He was 20, so he was way over the .02 limit for those under 21..

A friend of ours called and wanted to know why his license had not been suspended yet. She also wondered why a recent public official (Washington Superintendent of Public Instruction Randy Dorn) who was arrested for DUI got his license suspended so quickly. The answer on the latter question is easy: he pled guilty in court to DUI, so his license was suspended immediately. He conceded his right to fight it and accepted his punishment. For a public official that is what a mensch would do..

In contrast, the young man had not pled guilty so his case was still pending. In our society we presume the accused innocent, no matter what the crime. (In "Alice in Wonderland" its' 'punishment first, verdict later,' a place some demagogues would enjoy.) In order for a court to suspend someone's license, there must be due process of law. That is a phrase from the Constitution. Although a driver's license is not a "right," it is a privilege with certain protections. It cannot be taken away from a person who legally possesses one without due process--some legal procedure. So in the young man's criminal case, he is accorded a variety of rights such as a jury trial, live testimony, proof beyond a reasonable doubt, and so on, before he can be punished with jail and license suspension..

In DUI cases, there is also a parallel administrative proceeding which is largely independent of the criminal case, but tends to move faster. For example, the young man with the pending DUI, would have been given a notice the night of his arrest for DUI. That notice would inform him that he had 20 days to demand a hearing before the Department of Licensing (DOL), since he blew greater than an .02 (being under 21, or, if over 21, over .08 .) If he did not demand the hearing within the 20 days, then DOL would administratively suspend his license for 90 days..

Since the police said he was arrested for his DUI in early March, even if he had not demanded a hearing, his suspension would not have gone into effect before the crash in early April. Even without a demand for a hearing, that process takes time before the DOL issues a suspension. On the other hand, if he had demanded a hearing, it would have been set about 30-60 days out from the receipt of his demand. During that time, he could still legally drive..

As a society governed by Constitutional principles, there are occasions where someone who commits one wrong can repeat it before being punished for the first wrong. The whole tragedy surrounding the man who killed four police officers is even more complicated. He was someone who was allowed to post bail before a court could review all of the facts. That, along with Arkansas' parole procedures and snafus with Washington state, led to that nightmare..

Now due to that sordid history, the Legislature has passed a bill changing Washington's Constitutional provisions on bail, which have been the same since statehood in 1889. This must be approved by the voters yet, and I suspect it will be approved. Whether this change in bail procedure will prevent future tragedies is hard to predict. As a society that values freedom, it is a challenge to deter repeat offenders and maintain due process and the presumption of innocence. It remains an evolving process..

First and foremost: TAKE CARE OF YOUR CLIENTS

A high school girl was interviewing me for a class last week, wanting to know what did I like best about defending the accused. It only took a moment as my gaze fell on some thank you cards from former clients. The joy of helping someone who later appreciates it. I showed her the thank you cards and an annual Christmas card I get from one client I represented when he was in high school like her. This is what makes it worthwhile. A few former clients have even mentioned the possibility of going to law school to do what I do. I don't know if any ever did yet. . . But those notions are a good antidote to all the lawyer jokes about greedy, slimy sharks that everyone, including myself, love to tell..

Lawyer jokes are popular because lawyers cost a lot of money and then treat witnesses rudely or prolong insurance claims to pad the bill or argue over the meaning of words such as "intent" or "any." One way to counter this is to work hard for your money by taking care of the client who hires you..

At the start, before I am even hired, I level with people who are charged with crimes. I never promise I can 'get them off.' Generally, and this is well known in the criminal justice system, people who are charged with crimes did something. It is actually rare to get a case where the accused had absolutely nothing to do with the crime charged. True, there are many 'innocent' defendants--factully innocent in the sense that 'some other dude did it;' legally innocent in that they used lawful force to defend themselves; or constitutionally protected in that the police violated the 4th Amendment rules on search to obtain evidence. But, to be sure, those are the exceptions and not the rule..

The run of the mill driving under the influence case invariably involves someone stopped for a traffic infraction who admittedly had some alcohol to drink. The only question is was it too much or not? That is a narrow margin to work with. So when a DUI case comes in my door I don't say I can beat the rap. Instead I listen to the story, promise to do my best and explain the available options. I try to relieve their anxiety. I tell my new DUI client what he or she should do before our next court date and to let me do the worrying about the rest. So often these words alone lift some of the burden of being accused off of their shoulders. And when I do beat the rap or get a deal they can't refuse, the client may not recall whether I was cautious at first or not . . . and they certainly don't care..

Truth is my ally. No guarantees or false promises. I know of lawyers barely out of law school who post clever, fancy ads that are totally false, as they claim experience or success that doesn't exist. Of course they do it because they need business and are just starting out. Some eventually become what they advertise. As a lawyer of 32 years, the old referral system--one lawyer to another or referrals from former clients--is preferred. (Would you hire a doctor based on an internet or yellow pages ad?) For my own part, I don't want people to hire me thinking I am something I am not. When I tell a client I will do something for them, I do it. When a client calls, I return the call. When I am hired and a client owes me money, I still do the job as well as I can. I have former clients, whose cases I won, who still owe me money, . . . and probably won't pay..

In my court appointed cases, I tell my clients I will work as hard for them as for my privately retained clients. Many find this hard to believe. A lawyer who is not motivated by money is not a lawyer many people believe will really work for them. (After all, don't lawyers = money?)Perhaps there is a kernal of truth in that, but more likely it reflects more on the person who believes that..

When I was a public defender in the 80's, I always laughed at the pseudo-sophisticates who shouted: 'I want a real lawyer, not a public defender.' Of course the ones who shouted loudest never earned enough to afford a private lawyer and if any of them did, they would hire a showy lawyer who was more inept and less experienced than most public defenders. Usually the problem with public defenders is too many cases, not enough time, and sometimes not enough experience. But it is not the case that they care less about their clients than private lawyers. Experienced defenders are often more competent than many private lawyers. I was proud of being a public defender and now despite my shift to the private sector, I still take pride in doing my best--no matter who pays my bill. If people don't believe that, it's their problem..

My job only exists to help my client. That is the adversarial system. I live with it every day. Just remember that . . ..