One interesting piece of information in this OJ Simpson brouhaha is the revelation that he may have rejected a plea offer for a sentence as low as 3 years. The first word came from a friend of The Juice and it was later confirmed by his lawyer.
The essence is this: A lawyer must meaningfully convey a plea offer to the client and must explain the consequences and ramifications of taking the offer and rejecting it.
Plain English: Make absolutely damn sure that your client knows every reason for and against taking the offer. Double check it. Triple check it. Write him a letter and then another. Try talking to him at night. Talk to him in the morning. Leave absolutely no doubt in your mind that the client fully understands the consequences of rejecting an offer.
In both Sanders and Boria, the Courts ordered that the defendant be permitted to accept the previously rejected plea offer because, in both cases, the offers were not meaningfully explained. [All right, so in Boria the Court ordered him released because accepting the prior offer wouldn't have meant squat.]
The Court in Boria explored the underpinnings of this principle:
The decision whether to plead guilty or contest a criminal charge is ordinarily the most important single decision in any criminal case. This decision must ultimately be left to the client’s wishes. Counsel cannot plead a client guilty, or not guilty, against the client’s will. But counsel may and must give the client the benefit of counsel’s professional advice on this crucial decision.
Quoting Anthony G. Amsterdam, in Trial Manual 5 for the Defense of Criminal (1988)§ 201 at 339. Indeed, SCOTUS has said something similar:
Of course, it is not for a lawyer to fabricate defenses, but he does have an affirmative obligation to make suitable inquiry to determine whether valid ones exist. Such a duty is imposed for the salutary reason that ‘prior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered.’
Von Moltke v. Gillies, 332 U.S. 708, 721 (1948). That counsel is you.
This is prudent for several reasons. First, it is your duty to do so. Your primary and only responsibility is to the client and the client’s interests. Explaining thoroughly the consequences of rejecting an offer will reassure you and the client that the decision the client is making is a voluntary, informed one. Let’s be honest, any pre-trial offer will usually be significantly lower than any sentence imposed after trial. Frankly, why would you want it any other way?
This also ensures that your client receives the Constitutionally mandated effective assistance of counsel and doesn’t end up doing something stupid, like going to trial when he had no business to do so, just because you believed your duty was not to tell the client what to do.
You’re correct. It isn’t your job to tell the client what to do. It is your job (and mine) to give the client all the tools the client needs in order to make a very informed decision. Clients sometimes labor under the misimpression that they are innocent or that the State doesn’t have enough to convict them. It is our job to explain the State’s evidence in realistic terms, not idealistic terms:
“Sure, it would be nice if the State could produce Witness F, but they don’t need Witness F.”
“Juries don’t like to see these types of crimes, or someone with your record.”
“The only way to defend this is for you to testify, and frankly my dear, you’ll do that over my lifeless carcass.”
Don’t half-ass it. Explain to the client everything you’d be considering if it was you making that decision.
So what about OJ?
The fallen idol’s pal Thomas Scotto said prosecutors made the offer in the last stages of his trial for armed robbery.
But Scotto added: “OJ and his sister told me the prosecution offered him a deal but he and his lawyers turned it down.”
Scotto said that Simpson had been adamant he would not serve time and made that point clear to his lawyers.
He added: “He may have given it more serious consideration if he’d known what was coming.”
The offers were confirmed by Simpson’s lawyer Yale Galanter.
He said: “There were ongoing discussions throughout the case but nothing came of them.
“If he’d known what was coming” may mean several things. It may mean “in hindsight” or it may mean “if he’d been told how realistic it was that he’d be convicted”. Really, how many of you thought he was walking out of that courtroom without a single conviction?
This is one of the things I’m confident that most of you don’t do. I’m still writing about it because it interests me and because I’ve heard stories. Oh yeah. I’ve heard things.
Some clients have odd notions of justice and what is right and wrong in their case. It is our job to bring them back to Earth.
[Please don't misconstrue this post as advocating coercing the client to plead. That's just dumb.]
1. 2003 Conn. Super. LEXIS 174
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