Plea Bargaining in Capital Cases

Tuesday, December 30, 2014

Good afternoon:

I am now writing articles for the main page at Firedoglake (firedoglake dot com) during the owner’s hiatus from the site. I am volunteering my time there. My articles are published on Monday, Wednesday and Friday at 6 pm EST. I will continue to publish articles here, although you may not notice any change except I will be posting a little later each day and taking a day off now and then.

This article about plea bargaining was prompted by a comment to one of my posts at the Lake. The person who posts under the name Eternal Vigilance asked the following question:

Would an ethical lawyer still advise an innocent client to go to trial even when the trial might not be fair and the consequence of losing is death?

Here’s my answer:

Great question. Tough question. Please forgive the long response.

You have to keep in mind that the lawyer rarely knows for certain whether the client is innocent, unless there is an exculpatory DNA result, because clients have been known to lie to their lawyers. I went with the flow because I did not judge my clients.

I rarely confronted a client, unless the evidence against him was so overwhelming that there was no chance of success and the penalty for conviction was severe, as in a death case.

Ultimately, it’s the client’s decision to go to trial or not. Even guilty people have a right to go to trial and force the government to overcome the presumption of innocence by proof beyond a reasonable doubt. The lawyer can’t put them on the stand to deny guilt, if they have admitted guilt. That’s unethical and a lawyer who does that can lose his license for doing that.

I used to estimate the probability of success after reviewing all of the evidence and possible strategies to counter it. I would discuss that with the client and let them decide whether to go to trial. I would tell them if there were no realistic chance of winning and discourage them from going to trial, if they could get a better result by pleading guilty. If they couldn’t get a better result by pleading guilty, I told them I was willing to go for it, if they were. Some opted to plead guilty. Others opted to go to trial.

I never counseled an innocent client to plead guilty and never would in any case, including a death penalty case. And this would be true even if I had reason to believe we were dealing with a corrupt prosecutor and cops. If I believed that were the case, I would certainly tell my client and explain why I believed that to be true.

The problem is the criminal justice system is corrupt and no one can reasonably assume otherwise. That’s why I don’t practice law anymore.

Another consideration is a client has to provide a factual basis under oath to support a guilty plea. For example, “On or about (fill in the date) in (fill in the place) I took $50 from (fill in the victim) by threatening him with a knife.” A lawyer cannot ethically advise an innocent client to perjure himself by saying he did something that he did not do.

There is a type of guilty plea, called an Alford plea, in which a defendant concedes that the government has enough evidence to convict him if the case goes to trial, so he is going to plead guilty to avoid a trial and take advantage of the government’s plea offer. I don’t like these pleas, especially in cases where the plea deal requires the defendant to enter and complete a counseling program because the client is likely to be kicked out of the program for being not amenable to treatment because he refused to admit that he committed the offense to which he pled guilty.

Alford pleas (i.e., pleading guilty without admitting guilt) are equivalent to wanting to have your cake and eat it too. They promote avoiding responsibility and the reality is that a guilty plea is a guilty plea is a guilty plea, as far as the record is concerned. There is no real advantage to them.

Probably more information than you wanted to know, but the subject is complex and fascinating and probably should be the subject of a separate article.

3 Responses to Plea Bargaining in Capital Cases

  1. Malisha says:

    Professor, there’s a little typo in your article. The Firedog Lake webpage is at firedoGlake dot com but I think you left out the “G” there.

    Happy New Year to everyone! I wish our country would make a New Year’s Resolution to become less and less like Fogen every day. And may people with murder, rape and exploitation in their “likes” columns all emigrate — to the middle of the Bermuda Triangle.

  2. Malisha says:

    I remember seeing a case in Virginia where a defendant (Eric Foretich) had apparently carried a handgun into (I think it was Dulles) the airport. He was arrested and charged with whatever felony it was and he pled some sort of qualified guilty which required him, under Virginia law (at that time) to “elocute” or tell the judge what he had done. He did not want to elocute. His lawyer argued to the judge that he should be able to take the plea WITHOUT elocuting because “My client has a psychological problem admitting guilt.”

    The judge let him take the plea without elocuting! I was astonished!

    This same person (defended for years and years by Jonathan Turley) was involved in two domestic relations cases in which he did not want to admit guilt, of course, and in which two of his little daughters had alleged sexual abuse by him and he had denied it vehemently. Then he sued his ex-wife for saying he had allegedly molested his daughter, and won, and that got reversed by the Fourth Circuit Court of Appeals in a damning decision that basically said he was … not the prevailing party, ahem ahem.

    It always bothered me that there are some people who can get away with not even standing up and denying, under oath, what everybody damn well knows they did. (Fogen any?) While others are forced to admit guilt to save their own lives, whether they are guilty or not.

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