The Champion

June 2013 , Page 18 

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Meet ‘Em and Plead ‘Em: Is This the Best Practice?

By CeCelia Valentine

A defense attorney arrives in court to represent a new client. She is given a cursory police report and/or complaint. If the attorney is lucky, she may have an opportunity to view the state’s file that includes a printout of the client’s criminal history. The state makes an offer to the new client, and it sounds decent. Perhaps the state offers probation when the client may not otherwise be eligible. Maybe the state offers a deferred prosecution or diversion program. Perhaps the offer is prison time, but by the defense attorney’s understanding of the criminal history, the offer is a lot less time than the client would be facing at trial.

The defense attorney goes back to the holding cell and meets the client for the first time. She introduces herself as the attorney appointed to represent him, lets him know the charges, and then discusses the level of offense to let him know what kind of sentence he may be facing if the state can prove its case. If defense counsel is lucky, she will not have to yell over the other noise of similar conversations between countless other attorneys and incarcerated individuals. She may even have an opportunity to take the client aside and have a confidential conversation with him. She talks (or yells, as the case may be) to the client about what happened, and informs him that the state has offered a pretty good plea agreement. “You can take the deal now and get this over with,” she tells him.

At times, clients may tell defense counsel that they want to plead guilty and get started serving their time/probation and get it all behind them as quickly as possible. The state has made an offer, the client is willing to take it, and the judge is more than happy to have one less case taking up space on the docket. Does she plead him or not?

In many jurisdictions across the country, this is an all too common scenario. It happens mostly, if not exclusively, to indigent people accused of offenses. Why? Often it happens because the courts and the state put a lot of pressure on court-appointed attorneys to handle cases quickly and efficiently with little regard to the attorney’s obligation to her client. Admittedly sometimes, without considering the long-term consequences of his plea agreement, the client may put pressure on the attorney to get him out of jail as quickly as possible. This does not happen as often on retained cases. If retained on a case, the defense lawyer would likely have met with the client at least once (maybe several times) prior to the initial court appearance and gone over the case and the client’s expectations. However, for defendants unfortunate enough not to be able to afford to hire an attorney prior to appearing in court, their initial meeting with their newly appointed attorney may come complete with a plea offer and the sometimes tempting risk of signing away important and valuable rights. In many instances, an indigent client may do just that and enter into a plea agreement within minutes or hours after meeting his attorney. Many clients do this with serious consequences that likely could not have been meaningfully contemplated during their short interaction with the attorney.

The defense attorney’s obligation is first and foremost to the client. Is a quick plea truly ever in the best interest of the client? In answering this question, there are many things to consider. While not an exhaustive list, the topics discussed below can serve as the start of a conversation that will lead to vigorous representation of the most vulnerable in the criminal justice system — indigent clients.

Initial Client Meeting

Defense attorneys are inevitably the most important person in their clients’ lives at a particular time. Attorneys are there to help, guide, and protect them. Protecting a client’s liberty and sometimes a client’s life is a heavy responsibility that requires a great deal of care and consideration.

The initial meeting with a client sets the tone for what the client can expect from the defender. Should clients expect a champion for their liberty who will fight for them, or should they expect nothing more than a warm body to stand next to while talking to the judge? A good way to begin to act as a champion for the client is to treat him with dignity and respect and take some time to get to know him. After all, advising the client to plead guilty with scant knowledge of the facts may not make the best first impression.

Client Interview

Perhaps the most important thing the criminal defense attorney will ever do is a client interview or intake. It is the way the attorney gets to know the person behind the criminal charges. A good client interview will shed light on his circumstances and what is going on in his life. Is the client addicted to drugs? Is he suffering from mental illness or a serious physical ailment? Is he in school or working full time? Is he competent? Does he have an alibi, witnesses, or a compelling explanation for his conduct?

The various answers to these questions may lead to different solutions for a case. They may lead to competency proceedings and/or mental health treatment. The answers may lead to some sort of drug treatment. They may lead to an investigation that results in dismissal or reduction of charges. Or the answers may simply lead to mitigation for a lesser sentence or better plea agreement down the line.

Regardless of the answers, a client interview will no doubt give the defense attorney valuable information that will aid in the defense of the client. The key elements necessary for a good client interview are privacy (the attorney will be asking the client for personal and private information and confidentiality is a priority) and time (it takes time to build trust and a relationship). Five minutes in a crowded holdover cell with many listening ears may not be the best time and place for a good client interview.

Collateral Consequences

In the wake of Padilla v. Kentucky,3 being aware of serious collateral consequences of plea agreements has become an even more important part of a defense lawyer’s practice. Although Padilla deals with immigration consequences, numerous other collateral consequences exist that can be triggered by a guilty plea. While a license suspension, loss of public housing and/or benefits, or loss of a job may not seem as serious as deportation, it may mean everything to the client. What seems like a short amount of time in jail or on probation can lead to a lifetime of regret and consequence. It is important that defense attorneys, as advocates and counselors for clients, be aware of how important the decision to plead guilty is and what may result. Sometimes these consequences may only come to light after a good client interview. For that reason, a good deal of time should be spent with the client to find out what is important to him personally and how a guilty plea may affect him later. An excellent resource now available to defense practitioners is Collateral Consequences of Criminal Convictions: Law, Policy & Practice by Love, Roberts, and Klingele.

Adequate Time for Consideration

Most adults have made a major purchase such as a house or car. It is safe to say that buying a house is not a quick process in which a buyer simply points to her dream house on the street and moves into it. Instead, the buyer starts by applying for a mortgage (a long process in and of itself) and figuring out how much house she can afford. Next, the buyer chooses the area of town in which she wants to live and starts viewing properties. With the assistance of a realtor, or not, the buyer visits a number of homes before finding one on which she wants to make an offer. If she is lucky, the offer is accepted (or is eventually accepted after a negotiation period), and she is on her way to home ownership — provided the home inspection goes well. If the offer is rejected, then she keeps looking and begins the process all over again. Similarly, in buying a car, the buyer conducts the research to determine the kind of car she wants and can afford. Then she goes through the process of test driving, negotiating the price and financing, insuring the vehicle, and getting the title and license for it. Buying a house or a car is a purchase that is not entered into lightly and requires a great deal of information gathering, reflection, and consideration.

Although criminal defense attorneys are not advising their clients in a property transaction, they are advising clients in one of life’s most serious decisions. In many instances, clients are faced with a plea agreement that will lead to a number of years in prison. There are other changes to their lives that will happen as the result of a felony or misdemeanor criminal conviction. Like buying a house, this type of decision should not be taken lightly and will most likely require more than 5 or 10 minutes, or even a few hours of consideration.

Need for Investigation

After reading a police report, sometimes the defense attorney does not quite believe what the officer said is true, or that the events took place exactly as the officer described. Sometimes a witness statement does not have the ring of truth. The defense attorney’s review of a case might reveal that there is no way the state will be able to prove its allegations. All defense attorneys, at one time or another, have encountered these situations.

Conducting an investigation can reveal lying witnesses (or police officers) or show that something could not have happened as reported. An investigation can also lead to the discovery of witnesses that show someone else is responsible for the crime the client is accused of committing. For these reasons and more, an investigation is an important part of representing clients. A good investigation can lead to a reduction in charges or even the dismissal of the client’s case. An investigation might serve as the basis for a suppression motion that may affect the outcome of the client’s case. Of course, in the real world the reality is that some investigations may reveal the guilt of a client. Even in this instance, the defense attorney will have the information that she needs to have a frank discussion with the client, and he can then make the decision regarding whether or not to plead guilty.

The difference in advising the client after conducting an investigation is that the client is confident that (1) the attorney has been working on his case, and (2) the case is important to the attorney. Some investigations may take longer than others, and not all investigations require the employment of an investigator. For example, a quick visit to the crime scene or a few phone calls from the defense attorney’s office can sometimes paint the client’s case in a whole different light. But at the very least, conducting an investigation can save the defense attorney from a complaint or grievance with the local or state bar.

Ethical Considerations

While attorneys are called upon to be zealous advocates for their clients, they must also conduct themselves in an ethical manner. This call for ethics goes beyond candor to the tribunal, abiding by local court rules, and the like. For the purposes of this discussion, the attorney must deal with clients ethically by doing research and conducting an investigation into their cases and making sure they have the information needed before making a decision.

Another aspect of the ethical discussion is the conduct of the prosecutor. All prosecutors take an oath to ensure that justice is done. Of course, many prosecutors equate this with obtaining as many convictions possible. Because defense attorneys can talk all day about what their local prosecutor is or is not doing, this will be a very limited discussion. Simply stated, a prosecutor cannot ethically withdraw a plea agreement without allowing adequate and appropriate time for the defense attorney to advise her client. In reminding a prosecutor of this, it is not necessary to cite ABA Ethical Standards chapter and verse. Many times defense counsel can simply explain that she has to look into a certain issue (especially immigration or collateral consequences) before she can advise the client on the plea agreement. When asking for a short continuance in this circumstance, it is rare to have a prosecutor refuse to keep the plea open for another week or two. If the prosecutor refuses and is not being reasonable, putting this information on the record to the court can be another remedy so that the client does not enter an involuntary plea on the spot.

The Dignity and Respect of the Client

Defense lawyers are responsible for the protection of some of the most vulnerable members in society. Moreover, defense lawyers are the guardians and protectors of their clients’ constitutional guarantees and freedoms. The state must go through defense counsel to get to the client, and defense counsel should make the state fight for every victory. Most defense lawyers have dealt with a difficult client that they did not like. Even in those situations, the attorney can earn the respect of the client by being prepared and diligently working on his case. Just because the defense attorney has been appointed to represent someone she would not want to grab dinner with does not mean that she should phone it in and not do the work. This is a situation in which the golden rule — treat others the way you would like to be treated — is especially relevant.

Take Time to Investigate the Deal

CeCelia Valentine recently represented a juvenile who insisted that he wanted to “sign for his time” so that his case would come to an end immediately. After having him evaluated for competency (he was found to be competent), he wanted to enter a stipulation1 at the very next court date. When that date arrived, however, the state changed its recommendation from probation with placement to be determined by the Juvenile Probation Office (JPO) to commitment to the Texas Juvenile Justice Department (TJJD). Valentine’s client was difficult and had been in several other placements. This change in recommendation resulted from the JPO’s suggestion that its programs were inadequate and TJJD was the only outcome that should be considered.

“I was representing him on a probation violation. He had left home right after completing boot camp. There is no doubt in my mind that if we would have gone forward with a stipulation that day, he would have been sentenced to TJJD,” Valentine said. The court’s file, still en route from the warehouse, was not available that day. “Not wanting to just give up and give this young man a mark on his record that would always be with him, I asked that the case be reset for the purpose of looking into other options,” Valentine explained. “In this case, my client was the only person putting pressure on me to resolve the case quickly. To say that he was unhappy about staying in detention and coming back to court in another 10 days is an understatement.”

In the days before the next court appearance, Valentine visited her client and tried to discuss other alternatives with him. She asked social workers from her office to visit him in an attempt to develop mitigation evidence. “I bought him a book to enlighten him on the realities of gang life. I talked to him, and I advised him of all of his rights and of the dire consequences of a TJJD sentence,” she said. “My young client was going to turn 17 in the next few months, which would make him an adult for the purposes of criminal law in Texas.” A TJJD sentence would have made him ineligible for probation in the future and would have constituted a prior prison trip in the adult system, automatically enhancing any future sentence.2 “Unfortunately, I had a feeling that he would be arrested for something within a short time after turning 17, so I wanted to give him the best chance possible in the adult system.”

When the new court date arrived, the court file was available. “When I was finally able to look at the original paperwork it became clear that my client’s underlying offense was a misdemeanor — not a felony as alleged by the state. This meant that he was not even eligible to go to TJJD. We ended up getting the disposition we sought in the first place,” Valentine said. “As I documented my file later on, the gravity of the situation hit me. I realized that had I given in to the client’s demands against my better judgment, I would have committed malpractice. Perhaps I would not have had any significant career fallout as a result, but my client would have needlessly suffered, and I would have done harm to my own conscience. How many other times has this happened? I wondered. Have there been others that entered a plea agreement or a stipulated sentence improperly?”

Notes

  1. 1. In Texas, a stipulation is the juvenile equivalent of a plea agreement.
  2. Texas Penal Code § 12.42(f).
  3. Padilla v. Kentucky, 130 S. Ct. 1473 (2010).

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