Taxing the system

“We should just put everything on the trial list. That’ll learn ’em” is an idea that every young, wide-eyed, idealistic criminal defense lawyer has when she is beginning the slow descent into disillusion. I first heard it when I was interviewing for a job in my third year of law school. I said it recently, out of frustration with the State’s adamant refusal to acknowledge the glaring holes in their case. It is a dangerous idea and so it surprised me to see it espoused in the editorial pages of the New York Times by someone who claims to be a civil rights lawyer (more on her later).

The idea, for the uninitiated, is simple enough: 90% of criminal cases resolve via plea bargain; innocent people end up in jail; the system is rigged. So let’s fight it with insurrection. Overload the system, the system crumbles, justice is served. No state is equipped to handle the volume of 100% of cases going to trial. There isn’t enough money in the world to make that happen.

It’s appealing, sure. But only in theory. And the greatest evil the theory seeks to fight – the rigged system – is the greatest reason this idea is dangerous if ever implemented:

“The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute. In other words: the system is rigged.

In the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including harsh mandatory minimum sentences and three-strikes laws; the result is a dramatic power shift, from judges to prosecutors.

The system is rigged alright. Rigged so badly that cases with almost no evidence are rarely dismissed, that people who do exercise their right to a trial often end up with significantly higher sentences as punishment for the impudence of exercising those rights, that juries are predisposed to convict because innocent people don’t get arrested.

An idea like this can only originate from the mouth of a non-practicing academic: one who operates only in theories and not in the harsh realities of being in the trenches.

When I brought this up recently, a colleague looked at me and said “which client are you willing to sacrifice and how many?” The answer is none. As Norm so appropriately puts it:

Only fools, the naive and bad propagandists look for “justice” in the criminal courts. Clarence Darrow nailed it a century ago: “There is no justice in or out of court.” All that exists are interests. A criminal defense lawyer who puts his sense of justice ahead of his client’s interest has no business appearing in court. None.

Because our clients are often guilty and more than that will be found guilty by juries. They will be sentenced more severely than if they’d taken a plea. That is reality. A reality that we, as lawyers, don’t have to live. In this pursuit of wreaking havoc on the system, thousands will end up in jail, their lives ruined, their families’ lives ruined. Our job, primarily, is to serve the interests of a client. There may be times when a client’s desires provide a forum to take a stand against the rigged system. But unless that happens, it is a disservice to suggest that we disregard the consequences of our holy struggle in pursuit of an elusive fix.

Only someone who hasn’t had to repeatedly stand by clients as they are led away to serve weeks, months and years would offer up those same clients as lambs to the slaughter. Only someone who purports to be a civil rights lawyer but uses the phrase “court-appointed lawyer” when “lawyer” would suffice would propose an idea to destabilize the system at the expense of real, living, breathing people without acknowledging the disastrous consequences.

[Update:] Upon further reflection, I should state that there is a valuable message in this approach: that we should not be afraid to try cases, to stand up to poor offers and to essentially hold the State to its burden. You try cases that are worth trying, that have a shot at success, that present little additional downside to the client. And there are cases that you must try: where the client wants it and where there’s no functional difference to the client between losing after trial and pleading guilty to whatever offer may be on the table. The common thread, obviously, is picking the one that benefits the client the most. Sadly, we are in the crisis management and mitigation business. Clients don’t come to us to uphold some lofty ideal; they come to us to stop the tide as best as possible. It would be malpractice and a disservice to require them to put aside their best interests because we need to make a point.

Do it when you’re arrested, not when you’re defending someone else’s liberty.

There are ways to fix the system, albeit slow and mostly ineffectual: talk to your legislators, educate the community, run for a seat on the highest court. This is not one of them.

My struggle is against the system that wishes to incarcerate them. I won’t join it in the name of a mirage.


[H/T: Bobby G.]


15 thoughts on “Taxing the system

  1. Daniel Partain

    Plus, the person that wrote the article did not take into account the difficulties in preparing for a criminal trial when you have little to no resources available to you.

    1. Gideon Post author

      I get that it’s superficially and conceptually appealing: what if we refuse to co-operate? Civil disobedience, in a sense. It’s just not practical or desirable or advisable. There isn’t the money to do it, there isn’t the manpower to do it and there isn’t the time to do it. Plus it’s playing with other people’s lives.

  2. Richard Hornsby

    She may be academic, but the idea of “crashing” the justice system has been advocated (as a mindset if you will) by Robert Wesley, the elected Public Defender for the Ninth Judicial Circuit in Florida, and whom I consider a mentor.

    When I was a PD, he routinely said that if more defense attorneys had a trial first, plea second mindset; the system wold grind to a halt and the prosecution would be forced to be more selective in the cases they prosecute and the money we waste on petty and minor offenders. He always ended with the numbers. At best, a judge can only try one case a day (if that), and less than 200 cases a year if they never held any other hearings. With each Ninth Circuit judge processing in excess of 20,000 cases a year, the math is obvious.

    And because he preaches this type of mindset to his PDs, the Ninth Circuit State Attorney had had the lowest conviction rate in Florida for the past decade. Coincidentally, Mr. Wesley was first elected in 2000.

    As a private attorney, I continue to try more cases than the average “private” criminal defense attorney. And because prosecutors know I don’t brown beat my clients into taking pleas and don’t bluff when I say ready for trial, the majority of my cases end up being dismissed.

    1. Gideon Post author

      Ah, but there’s a critical distinction: the idea of preparing every case as if you were going to try it is a wise one (Mark Bennett, for instance, is one vocal advocate).

      If you go into a case as if the only outcome is a plea, you’re going to get eaten alive. But that’s not the same as just trying everything. Because that’s stupid. Are all your clients willing to take that risk? Can you even suggest it to them?

  3. Richard Hornsby

    Of course not all my clients are willing to take the risk; but when I get clients who insist they are “innocent” I make sure they are fully aware of the “risks” up front and the likely outcome if they lose.

    I then get them to commit to being willing to go to trial; once they do, the only option is trial and when a prosecutor is faced with taking my case to trial, or someone else’s, the choice is usually a given. If more attorneys took that approach, more cases would get dismissed.

    The problem is, that most defense attorneys spend more time brow beating client’s with good cases into taking pleas instead of talking about the possibility of winning.

    I fault many private attorneys for having this mentality, because they think it is cheaper and quicker to get a plea then, god forbid, spend a day in trial.

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  5. nidefatt

    Our office puts this into practice on occasion to drive a particular prosecutor nuts. It works well. We call it the zebra defense. You don’t even have to try the case, just hold out till the status call. The subpoenas alone drive the enemy insane.

    1. Gideon Post author

      But that’s not what this suggestion is. There’s nothing wrong with rejecting bad offers because they’re bad or with prepping for trial from the start. But to reject a good offer to make a point is playing roulette with someone else’s liberty.

      Maybe this is conceivable where the maximum exposure is 30 or 90 days in jail, but for anyone else to be considering this is unethical.

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  7. Thomas R. Griffith

    Hey Public Defender, strictly from a (VOTS) victim of the system’s point of view, whom has personally experienced the effects of plea bargain abuses (“Play Bargain”) games, please consider this. FWIW, you make a valid argument and therefore have rendered the call to try ‘em all complete bullshit. With that, I reserve the right to call bullshit on the following.
    Due to the law allowing those with law degrees to dabble in the criminal defense niche (despite having absolutely no misdemeanor and/or felony trial experience), (ex: Divorce Estate / Will specialist) , allowing them to be referred to as CDLs, hold themselves out in consultation with defendant’s elderly and poor parents as a CDL, quote and receive down payments, meet with client in jail for 15 minutes, stumble through voir dire, file numerous “Ready for Trial” notices, file 5 pre-trial (Discovery) motions 30 days prior to trial, do nothing when the Court Orders are ignored (neither Agreed or Denied), continue to file “Ready for Trial” notices, be oblivious to the fact that client was on probation at time of arrest despite it being a question asked in 15 minute meeting, allow a .38 Rhom revolver w/ 5 or 6 inch barrel to be listed as one of the three number twos on two State’s Exhibit docs. with one being dated seven years after trail & presented to the jury in a case involving an alleged “.22 or .25 revolver w/ 2 inch barrel”, say nothing when robbery victim points client out as the gunman, ignores original suspect’s description as being straight black hair with no facial hair as he sits next to a client with wavy light brown hair and spends the entire lunch recess trying to convince client to plea bargain for 10 years. Closing the deal by saying, “Why didn’t you tell me you were on probation? Your probation was revoked the moment you were arrested. Guilty or Not, you are going to prison just for being on probation at time of arrest. Take the 10 years instead of risking 99 years.”
    Everyone knew I was innocent from the very first day, including the judge & jury of 12. There wasn’t any investigation at any point by anyone or it would have shown that I’ve never ever had an Outstanding Traffic Warrant in my life as for the reason given for arrest. Therefore, I’d like to throw out the krapola call for all to go to trial and crash the system. Instead, I’m calling for real CDLs, real Public Defenders, real Investigators, real ADAs, real Judges to do their friggin duties or resign. But that would require those that consider themselves as “Real” to grow a pair and denounce the ability for posers to side step your profession in order to Play Bargain at lunch recess. Investigate, Investigate, Investigate or go home. *You will never hear about brain surgeons sitting idly by as orderlies are reported to have dabbled in a potential client’s hypo thalamus. *You never hear about Robbery Detectives allowing Parking Enforcement to take a case or two. Yall can blogaaboutit or do something about, the goof ball’s in your court. Thanks.

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