Atticus Finch

How hard should a defense lawyer push his client to take a plea-bargain when the client resists? Does it make sense to try a case you’re not likely to win? These are just some of the questions banging around my head after a couple of weeks of hard work and then some time perusing this here blawgosphere on the world wide web.

Both Scott Greenfield and Mark Bennett have penned posts about competence–Scott commenting on how a lawyer’s ego can get him or her into trouble and we should all be careful what we wish for, and Mark making the point about about the need for both general & specific competence. Scott Greenfield writes in another post about the need for a specific kind of competence when it comes to plea bargaining. Scott tells of a case where he was trying to help a client who had been convinced to plead guilty by a lawyer who didn’t really consider any other alternative:

Some years ago, I did an evidentiary hearing before Judge Kimba Wood in the Southern District of New York on a habeas motion, where the defendant had a great defense but was pushed into a plea in a New Jersey case with the lawyer misstating the consequence on his federal parole.  The Jersey lawyer took the stand.  On cross, I asked him whether he told his client that he was a very experienced criminal defense lawyer.  With his chest puffed outward, he proclaimed that he was indeed a very experienced lawyer.

I then asked him to tell the judge how many felony cases he had tried to verdict before a jury as a defense lawyer.  He hemmed.  He hawed. I asked whether he had a problem, and he muttered that he was thinking.  Judge Wood grew impatient, and finally, said, “So how many?”

His answer was spoken so softly that if could barely be heard,  “None”.  Of course, he never informed his client that he was highly experienced in pleading his clients guilty, but nothing more.

Anyone who’s practiced criminal defense for more than a few years can point to at least one lawyer just like the one Scott Greenfield describes. It doesn’t take long for both prosecutors and criminal defense lawyers to figure out who will actually go to trial and who will avoid it–even if that means giving a case away or convincing a client to take an less than favorable deal.

The problem for clients–as Scott Greenfield’s client illustrates–is that it can be difficult for the uninitiated to determine if the lawyer they’re about to hire is someone who goes to trial or not. Most clients don’t even know it’s an issue they should worry about. When hiring a criminal defense lawyer–if they think about a lawyer’s trial skills at all–clients just assume that all lawyers (a) go to trial regularly and (b) are comfortable in the courtroom and (c) know how to try a case. The truth is that lawyers who fit into all three of these categories are the exception, not the rule.

We are not all Perry Masons.

Nor should we be. Many, if not most, legal issues a typical person confronts don’t require an experienced trial lawyer. But it’s hard to think of a criminal defendant who wouldn’t benefit from someone who can and has actually tried a number of cases and who has more than a little experience picking a jury.

(OK. I’ve probably dated myself with the Perry Mason reference, so I provide that last Wikipedia link for anyone under 30 who may have somehow wandered onto this blawg. (Welcome!) I use Perry–although I can barely remember when he was on TV–because a client’s mother recently brought him to my attention. She had asked me what a “transactional lawyer” (shudder) is, and I gave a very long-winded lawyerly answer, comparing and contrasting what I do and what a “transactional lawyer” does. So I might have faked the “what a transactional lawyer does” part a little, but I’m pretty sure I  guessed right. Anyway, when I was done, she responded, “So you mean you’re like Perry Mason and this other lawyer isn’t?” I leave to you, Dear Reader, to imagine how I modestly demurred.)

But there’s also a flip-side to worry about: while its rare, what if a criminal defense lawyer is foolhardy about going to trial when it’s not in the client’s best interests? One of the things we defense lawyers get paid to do is to know when our clients should take a deal and how to convince them to do so. Believe it or not, sometimes criminal defendants have a serious lack of judgment, reason and/or common sense. Some even possess what might be considered a reckless disregard for what’s in their best interests. (Not my clients, mind you, but I’ve noticed that other criminal defense lawyers seem to represent people who are a mess.)

I’m sure anyone who’s been practicing for more than a few months can tell you about the client who insisted at the first meeting that the case was going to trial–no matter what the plea offer is or how great the stakes if they are unlucky enough to get convicted. Sometimes this approach–what my former partner Frank Henderson liked to call the “Millions for defense, sir, but not one cent for tribute!” approach–is the correct one. But usually it isn’t.

Still, it’s always the client’s decision–not the lawyer’s–whether to accept a plea-bargain or not. Sometimes a case calls for the lawyer to push and cajole a client hard to take a plea-bargain; sometimes to do so in a case would be an irresponsible abuse of the trust the client has placed in the lawyer. The hard part, of course, and where experience and good judgment are indispensible, is knowing which case you’re facing. Among what seems like a cajillion factors to consider, when it comes to plea bargaining or going to trial, you best know where your ego is.

Two of my recent cases reminded me of why it’s so important to keep my ego in check when helping clients decide whether to plea bargain or not. A few weeks ago I tried a case I was pretty sure would result in a guilty verdict. But my client was adamant in not taking the s0-s0 plea-bargain on the table and I was unable to persuade the prosecutor to do better. The problem is I’ve been on a pretty good run and I had yet to lose a jury trial this year. The truth is I didn’t want to “spoil” my record. But my client had made the decision to stand on his constitutional rights–and eventually even my ego had to agree that my client’s rights trumped my silly record (they were mostly misdemeanor jury trials anyway). For reasons I can’t go into here, and even though my client was found guilty, I believe my client made the right decision to reject the plea offer. Sometimes clients need to go through a trial for reasons other than whether they can do better than a plea offer.

Which brings me to my other case. This week I was supposed to be in another jury trial. My client had been offered a very favorable plea bargain in this case, which he rejected, even though I didn’t think the expense of going to trial was worth the risk of possible conviction–and especially in light of how favorable the DA was willing to resolve the case. I typically judge my success or failure in a trial by whether my client got a better result than the best plea offer made, so I had to work hard in this case to obtain an acquittal–the only result that would be better than the plea offer my client had rejected.

My hard work paid off, and a few days before the trial was to begin, I had the pleasure of calling my client to inform him that the DA was dismissing the case. We had achieved Sun Tzu’s ideal: “To subdue the enemy without fighting is the acme of skill.” I couldn’t wait to dial his number and hear how impressed my client was going to be with the result. Instead, he was pissed. He wanted his day-in-court! I had robbed him of his opportunity to show that jury–and the world!–just how innocent he is and how horribly mistaken the statements and charges against him had been. Instead of triumph, I got an earful of disappointment.

Just another weekly reminder to check my ego at the office door.

A recent article in the Denver Post reports some startling news: treatment works. By giving free medication to mentally-ill prisoners who were released to community corrections facilities, the recidivism rate was reduced from 56% to just a measly, eye-popping 3%:

A 2-year-old program designed to provide medication and monitoring to inmates with mental illnesses has shown the potential to dramatically reduce recidivism among those who participate, according to a new study.

The program provides free medicine to two different kinds of inmates: those who are being released from prison to community halfway houses and parolees who break rules and are sent to community corrections facilities.

In 2006, the year before the medication program began, 92 mentally ill inmates, or 56 percent of the offenders sent to community corrections facilities, violated rules or committed new crimes and were returned to prison.

In the first two years of the medication program, only 2 mentally ill inmates, or 3 percent of the 61 prisoners getting psychotropic medications at community corrections facilities, were sent back to prison.

The number of mentally ill offenders who were released from prison to community corrections halfway houses, only to end up back in prison, also dropped, from 47 percent in 2006 to 37 percent in 2007 and 2008, recently released research shows.

Of course, the dirty little secret of our prison system is the number of mentally-ill prisoners who are locked behind bars–often with no or little mental health treatment. In 1998, the Bureau of Justice Statistics reported there were an estimated 283,000 prison and jail inmates who suffered from mental health problems. According to Human Rights Watch, “that number is now estimated to be 1.25 million. The rate of reported mental health disorders in the state prison population is five times greater (56.2 percent) than in the general adult population (11 percent).”

Women prisoners have an even higher rate of mental health problems than men: almost three quarters (73 percent) of all women in state prison have mental health problems, compared to 55 percent of men.

Those numbers are staggering, but for anyone who spends much time in the criminal justice system, it’s no surprise our prisons have a large proportion of mentally-ill inmates–an especially high proportion for women sentenced to prison.

“While the number of mentally ill inmates surges, prisons remain dangerous and damaging places for them,” said Jamie Fellner, director of Human Rights Watch’s U.S. Program and co-author of a 2003 report, “Ill-Equipped: U.S. Prisons and Offenders with Mental Illness.” “Prisons are woefully ill-equipped for their current role as the nation’s primary mental health facilities.”

With tough economic times and spending cuts, there’s little resources for the mentally-ill and many struggle to find even minimal treatment. It’s often only a matter of time before someone suffering from a mental illness finds their way into the criminal justice system, and unless they’re lucky enough to run into an understanding and compassionate defense lawyer, prosecutor or judge, prison is often viewed as the only alternative for “treatment” and “rehabilitation.”

Time Magazine reported in 2007:

“If you think health care in America is bad, you should look at mental health care,” says Steve Leifman, who works as a special advisor on criminal justice and mental health for the Florida Supreme Court. More Americans receive mental health treatment in prisons and jails than hospitals or treatment centers. In fact, the country’s largest psychiatric facility isn’t even a hospital, it’s a prison — New York City’s Rikers Island, which holds an estimated 3,000 mentally ill inmates at any given time. Fifty years ago, the U.S. had nearly 600,000 state hospital beds for people suffering from mental illness. Today, because of federal and state funding cuts, that number has dwindled to 40,000. When the government began closing state-run hospitals in the 1980s, people suffering from mental illness had nowhere to go. Without proper treatment and care, many ended up in the last place anyone wants to be.

“The one institution that can never say no to anybody is jail,” Leifman says. “And what’s worse, now we’ve given [the mentally ill] a criminal record.”

It doesn’t help that the prison system is often viewed as a solution to society’s ills, that if we just “lock ‘em up” we can effectively fix the problem of criminal behavior. Andreas Kluth, a correspondent with The Economist and author of The Hannibal Blog, reports:

• Most people know that America has the highest incarceration rate in the world, but did you know just how much higher? America locks up 732 people out of every 100,000. The G7 countries, which should be the appropriate comparison for America, lock up 96 people for 100,000. The country in the world that comes closest to America is Russia, yes Russia, where the number is 607.
• Was there ever a country for which we have numbers that surpass America’s current incarceration rate?  …. the Soviet Union during the years of Stalin’s Gulag!!!
• America has about 5% of the world’s population but 23% of its prisoners.
• America also has by far the highest ratio of prisoner to each kind of crime. What that tells you is that there is not more crime in America that would justify more imprisonment.

Treatment programs and real attempts at rehabilitation are not politically popular. It’s not often controversial for lawmakers to fund new prisons, but a push to put more tax dollars into treatment and rehabilitation programs is typically hampered by controversy.

It’s shameful were not trying harder to give prisoners what they need to repair their broken and damaged lives–mentally-ill or not. If simply providing free medication can have such an overwhelming positive effect on the recidivism of mentally-ill prisoners, just think what providing comprehensive, sustained treatment might do.

The saddest part of the Denver Post article is found halfway through: “The Colorado legislature in 2006 approved the $1.3 million pilot program designed to increase success rates of inmates moving into the community. Budget cuts have reduced that to $171,000.” Don’t expect any great progress soon with that dismal level of support.