Criminal Defense and the Cardinality of the Client

In a tweet, criminal defense blogger Norm DeGuerre refers to an article by Michelle Alexander that asks,

What would happen if thousands of people charged with crimes refused to plead out?

Norm then asks

Bringing the system to its knees is in your clients’ best interest. Why aren’t we doing it?

And in a blog post, Mark Bennett gives the standard response that every thoughtful criminal defense lawyer gives when confronted with the “take every case to trial” idea:

The answer is simple: because we do not serve our clients’ best interest. We serve our client’s best interest. And what is in the clients’ best interest has nothing to do with what is in the client’s best interest.

What Mark’s getting at, once you sort through his very specific use of apostrophes — and assuming I’m not totally crazy here — is one of the more interesting game-theoretic aspects of criminal defense: The ethics of legal representation require lawyers to act in each client’s best interest (in the context of legal representation), and they are not allowed to sacrifice the client’s interests to achieve their own goals, including their goal of acting in the interests of other clients.

Thus, when making decisions about how to proceed for a particular client, they are not allowed to take into account the effects of their decisions on any other client of theirs, now or in the future, nor are they allowed to pursue social goals that might benefit other clients of theirs or other lawyers. For example, if a lawyer represented several people accused of committing a crime together, he would theoretically be obligated to make independent decisions about each client — including whether to recommend testifying against his other clients, in which case he might find himself racing to the prosecutor’s office on behalf of two or more clients at the same time!

No lawyer could possibly handle a conflict of interests this severe without at least the appearance of impropriety, so the ethics of legal representation wisely prohibit a lawyer from representing multiple clients in the same case (or whose interests otherwise conflict). Consequently, when several people are accused of committing a crime together, each defendant gets to have a separate lawyer. In practice, this means they would also have to be from separate law firms (except apparently in some public defender’s offices.)

If lawyers somehow cooperated to implement a “take every case to trial” strategy, the justice system would be overburdened, which would mean that prosecutors would probably be willing to offer really amazingly good deals to some defendants in the hope that they will plead out and reduce the trial load. It might be in the best interests of all clients considered as a whole to go to trial, but it could also be in the best interest of any single client to take the really great deal he’s been offered. Since defense lawyers are required to act in the best interests of each client, they would each be obligated to advise their client to take the deal. But when enough clients take the deals, the burden on the justice system is relieved, and the “take every case to trial” strategy collapses back to plea bargaining as usual.

As a consequence, the “take every case to trial” collective strategy would fall apart almost immediately as long as lawyers continued to obey the ethics rules. Consequently, no ethical criminal lawyer would seriously consider attempting this strategy. Which is why, no matter how unpleasant it is in the aggregate, lawyers continue to correctly advise their individual clients to take good plea deals rather than risk being found guilty at trial.

Civil law is more flexible, and several parties to a lawsuit will often consent to representation by the same lawyer in the interest of simplicity and cost savings if they consider themselves to be on the same side — e.g. all sued by the same plaintiff. This is especially likely to be the case if a single party such as a common employer has agreed to pay all costs. Since all the damages are coming out of the same party’s pocket, the lawyer is effectively representing a single client.

In criminal matters, the same is true of the prosecution. There may be victims, but the prosecution is carried out on behalf of the government, so all prosecutors are working for the same client. They are free to make any tradeoffs they want between cases, such as offering deals to some defendants to testify against others, and they can use their discretion to pursue broad policy goals, treating some crimes lightly in order to free up resources to come down hard on others. This flexibility is one of the fundamental differences between prosecution and defense strategies.

I should emphasize that none of this is intended to impugn Norm DeGuerre’s ethical standards for bringing this up. Subsequent twitter exchanges make it clear that he understands the ethical issue, but he nevertheless laments the resulting harm to clients.

However, being after all a lawyer, he does seem to be trying to skirt the ethical issues when he tweets,

And who knows, maybe we would be better at trials if we accepted our clients’ decisions and DID more of them.

Clients often say they want a trial even in cases where it would be a really bad idea. Ultimately, the decision is up to the client, but a good lawyer is supposed to try to talk them out of doing dumb things. However, if the lawyer didn’t try very hard, and the client still went to trial, the client would get what he wants, and going to trial would put pressure on the justice system to not take other cases to trial, so clients as a whole would conceivably benefit. This would benefit clients in general at the expense of specific clients, but if it’s what the specific client wants…maybe it’s ethical?

(I think probably not, because lawyers have a duty to give good advice, but I’m in over my head here. Lawyers are experts at finding tricks in systems of rules, so there might be situations where this is completely ethical.)

Norm also seems to think that a significant number of criminal lawyers are trial averse — due to either fear or laziness — and discourage their clients from going to trial more often than they should, which hurts all criminal defendants by easing the trial load on the prosecutors’ office. (Norm apparently loves going to trial. As he puts it elsewhere, “As a public defender, a client telling me, ‘I didn’t do shit!’ is enough of a reason as any to take his case to trial.”)

In another post, Mark Bennett takes that idea in an interesting direction:

[F]or the sake of the system it’d be better if more lawyers had pathologically rosy outlooks, because then fewer defendants would plead guilty. In fact, one way that we might get more defendants to refuse to plead guilty is to get lawyers to believe more in their ability to win more cases. If our concern is the clients’—rather than the client’s—interest then we want to encourage criminal-defense lawyers to view trial more optimistically, whether or not that optimism is merited.

How might we encourage criminal-defense lawyers to view trial more optimistically? One way would be to pretend to teach them to be better lawyers—to teach fake CLE, and pretend to give them more tools to use to win their trials.

This neatly skirts around the ethical issues of legal representation. The folks teaching the fake CLE classes are deceiving the lawyers by pretending to teach them skills that don’t work, but if the ultimate result is to bring the plea bargaining system to its knees, then it could produce a net benefit for clients. And the lawyers teaching the classes have no ethical obligations to any individual client, so they are free to seek to maximize the clients’ aggregate welfare. In fact, since bringing down the system will probably end with prosecutors charging fewer people, this will even help people who are never the clients of any lawyer.

This is the logic of many public health initiatives — the flu vaccine kills a few people every year, but the vaccination program saves thousands. It is also the logic of many public interest activist groups, which may engage in activities intended to improve society, even at the expense of some members of society.

(Mark goes on to say that fake CLE classes might not be such a good idea, and that a much better solution would encourage lawyers to be more optimistic about trials by actually teaching them better trial skills.)

Interestingly, I think the article that got Norm DeGuerre excited in the first place may also avoid the ethics issue. The way I read it, Michelle Alexander isn’t encouraging lawyers to crash the system, she’s contemplating the possibility of the clients themselves doing it:

After years as a civil rights lawyer, I rarely find myself speechless. But some questions a woman I know posed during a phone conversation one recent evening gave me pause: “What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that?”

Great change often involves sacrifice. If thousands of black people in Montgomery could boycott buses for a year, if the boycott leaders could be arrested and jailed, if black people could risk beatings and arrest for sitting at whites-only lunch counters, if slaves could risk their lives escaping, and thousands of people could fight and die in a civil war…then perhaps today enough people would be willing to risk lengthy jail sentences to bring down the system of mass incarceration.

“I’m not saying we should do it. I’m saying we ought to know that it’s an option. People should understand that simply exercising their rights would shake the foundations of our justice system which works only so long as we accept its terms. As you know, another brutal system of racial and social control once prevailed in this country, and it never would have ended if some people weren’t willing to risk their lives. It would be nice if reasoned argument would do, but as we’ve seen that’s just not the case. So maybe, just maybe, if we truly want to end this system, some of us will have to risk our lives.”

It would be better to wind down the system of mass incarceration through moral suasion and peaceful change, but if that’s not working, maybe something drastic will be needed.

Finally, while the ethical barriers to a “take every case to trial” strategy depend on the nature of lawyers’ obligations to individual clients, a more fundamental requirement is that there be a trial tax: If going to trial isn’t particularly likely to be worse than taking a plea, then taking cases to trial becomes the dominant strategy. If the justice system treats defendants terribly even if they accept plea bargains, and if the prosecution comes to depend on plea bargains so much for certain types of cases that they lose the organizational capability to convict people, then all hell can break loose.

You know how we worked? We put the state on their heels with our crazy volume of cases.  At the height of our “reign” it was a full nine months from the time somebody demanded trial until their first trial setting.  The state was so overwhelmed that they were only getting subpoenas out a week to ten days before the trial.

[…]

When you force the state to actually prepare for trial on every damn arrest the cops make, you’re going to win a lot of cases. Like, almost all of them. They were having to drop cases as quickly as we set them. We’d be crazy to change anything.

Although, as the author of that post eventually discovers, the system has ways of defending itself. It’s one thing to gum up the works, and it’s another thing to cause lasting positive change. It may not be possible to overthrow mass incarceration with cool legal stunts.

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