Sleazy Lawyers, Part II

[This is the last of the Myspace blog entries switched over here to Yahoo 360.]

 Plea Bargains = Corruption? Every day, in courts across the US, defendants go to court for various offenses. Traffic infractions such as speeding; minor misdemeanors such as drunk in public or disorderly conduct; all the way up to serious felonies. Very few will actually go to trial. In most cases, a privately retained attorney, a court-appointed attorney, a public defender, or even the defendant himself, will work some deal with the prosecutor and plead guilty to some lesser offense in exchange for a lesser sentence. Is this corruption?

 Ideally, every criminal case should be zealously prosecuted by the state and defended by the defendant – and that means going to trial. As a practical matter, doing so would bring the court system to a grinding halt. There is no way the courts could handle the load if every single case was tried.

 The truth of the matter is that most defendants are guilty and know they are guilty. The police in my area are all well-trained professionals who went to academies and take their jobs seriously. The prosecutors are selectively hired, know what they’re doing, and do not bring charges where no evidence supports them. To be fair to my clients, although they are guilty, they know they are, and don’t expect miracles or acquittals – only that I will do my best to assure that they end up with an outcome they can live with.

 This is the crucial difference between a cop taking a payoff and a prosecutor and defense counsel taking a plea bargain. The cop taking a payoff represents "the people" yet is selling them short; any money received goes into his own pocket – maybe shared with the other cops at the station. Contrast this with the prosecutor and defense counsel.

 The prosecutor also represents "the people" but his motivation in accepting a plea is not to save his own neck – which is not in any danger in a courthouse – or to make any money, but to see to it that "justice is done", recognizing that his own case may be imperfect. No prosecutor will allow an obviously guilty defendant to walk away completely. The prosecutor wants to see that some reasonable punishment is inflicted, even if that is not jail, or if it means a completely suspended sentence which will allow the defendant to walk out of court free of handcuffs and not go to jail (right away). If a fine is assessed, it goes to the court, not into the prosecutor’s pocket.

 And for my part, defense counsel is in direct communication with the client. I will not accept a plea without the client’s consent. And I only advise doing so if I honestly believe it’s in the client’s best interest. Sometimes a plea is not, and we go to trial. No one – not the state nor the defendant – is being cheated, swindled, or defrauded by a plea bargain. Nor is the purpose of the law perverted. The system does work, as surprising as that may sound. Maybe I’m just an optimist, not cynical enough for my own good.

 Then there’s the other side: the client who tries to spin you. The guy comes into my office, with a criminal case coming up soon in court. He claims he’s innocent, he was in the wrong place at the wrong time, and spins some sad saga. Uhh, yeah. So we go to court, I repeat his saga to the Commonwealth’s Attorney, who smiles and replies, "that’s not what I heard..." He tells a very different story, which if true, means my guy is guilty as hell. But he’s not such a bad prosecutor, so he offers me a guilty plea with suspended jail time and a small fine. I go back to my client and repeat what the CA told me – and the client looks very embarassed. Moreover, Mr. "I’m Completely Innocent!" grabs the plea bargain in a heartbeat. Experienced defense attorneys warn that you’ll have to meet with your client a few times – and each time more of the truth comes out and more of the lies disappear. You won’t get the full story until you show up in court and the prosecution tells you all the juicy stuff your client wouldn’t tell you.

 Finally, this is not really about sleazy lawyers – more like a transition from the discussion on defense clients. Sometime the client is the victim, pressing criminal charges against the aggressor. And they ask me to represent them at court - on the criminal matter. I have to explain, "no, that’s the prosecutor’s job, I’m a private attorney. You can hire me, I can go with you, but I’d simply be watching while the prosecutor did all the work. There’s no sense in having me there for that." I’m not about to do the prosecutor’s work – or second guess the prosecutor’s competence.

 Suffice to say that criminal defense work has its interesting and intriguing moments....