Plea bargaining should be outlawed.

There. I said it. Now you know where I stand.

At the same time, I am a criminal defense attorney who represents people who are often unfairly targeted and unfairly charged in a system that is fundamentally unfair.

Unfair, wrong — hell, let’s call it what it is: EVIL.

But you like it that way.

There is a minor ripple in the blogosphere right now. It was caused by an article in the New York Times: a call to “Crash the System” by having everyone refuse plea bargains and go to trial.

To read the blogs of some of my friends, you’d think some idiot attorney with nothing to lose came up with the idea.

That’s not the case. The author of the New York Times article, a civil rights attorney with a book out which itself constitutes an incredibly-powerful indictment of our criminal system, though she clearly appears to support it, is not the woman who made the suggestion.

The woman was Susan Burton, who knows a lot about being processed through the criminal justice system.

Susan Burton is not an attorney. She is a victim of the system.

And she’s right.

Norm Pattis doesn’t think so. 

Good criminal defense lawyers work to create options for clients in crisis. Plea bargaining is the dark work of the possible, done outside public view, with aims other than justice in mind. The suggestion that individual clients commit what will amount to individual and collective suicide to crash the system is a dangerous pipe dream. No decent criminal defense lawyer will entertain the thought. I am surprised Ms. Alexander did so.

Neither does my other friend, Gideon. 

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.

I’m going to disagree with both of them. As Bobby G. Frederick notes, apparently agreeing with Susan Burton the Victim of the System,

Some of us complain about the steady erosion of our Constitutional Rights – but how can we complain when no one exercises those rights? Use it or lose it. The norm across the country is to waive our constitutional rights, so why shouldn’t we lose them?

Both Norm and Gideon have some valid points. Both discuss the impact on the freedom of individuals who would fight the system — at least their freedom of movement. Both correctly point out that those who choose to fight for their rights will suffer.

It has ever been so. When the first white Americans — I can’t simply say “first Americans” since the first Americans fought both the British and the first white Americans, and they weren’t fighting to establish the U.S., but to protect themselves — fought to establish this country we’ve inherited from them, they suffered. Hell, they didn’t just risk their freedom: they risked their very lives.

But the suggestion of bringing the system to its knees — crashing the system — is not as crazy as my friends make it sound. I advocated a similar position regarding the juvenile court system in my area to change their policy of shackling all juveniles who came to the court. Before I woke up and — in response to a comment a judge made about not allowing me to do in his court what I’d done in others — drew a line in the sand, it did not matter if a juvenile was 10 years old and charged with a misdemeanor: if he came to the juvenile court, he was coming in shackles.

Once I woke up — once I got pissed off about it — we drew a line in the sand. I was not completely alone in this: other attorneys began doing it, too.

And the system came to a screeching halt. Partly because the court’s approach was ass-backwards, as is the norm with our prosecutors in black robes that run them, they continued allowing the sheriff to bring the kids to court in shackles, and we had to have an evidentiary hearing to get them released. This is exactly the opposite of what California law requires, but why the frack should a trial judge in Fresno, California, care what California law says?

At any rate, hearings that might otherwise have lasted between two and five minutes were suddenly taking anywhere from an hour-and-a-half to three hours to resolve. Again, this is because of the ass-backwardness of the judges, who had a policy of allowing the sheriff one hour after a challenge to try to invent a reason that might justify shackling. Add to that the time for the hearing and cases were not moving.

Today, the default policy in Fresno juvenile courts is reversed: juveniles are brought to court without shackles, unless there is some particularized reason such as fighting on the way to court to justify the shackles.

Nor did it take long to get there.

To be fair, there is a difference between what happened in the juvenile court system here in Fresno and what Susan Burton proposes. For one thing, the juveniles were not risking the same thing as those who would have to fight the plea bargaining system. In one of the shackling motions I handled, there were three co-parts (in juvenile court, we use the term “co-participant” instead of “co-defendant,” which is the term in adult courts; it’s supposed to indicate that the juvenile system isn’t as barbaric as the adult system). The attorneys for the other two co-parts refused to join my motion to remove shackles. As I mentioned, it prolonged things. In reality, they had nothing to lose, except their clients’ comfort and trust. But if I had lost, the only danger was that my client, like theirs, would have remained shackled. When I won, my client was unshackled, while theirs remained in shackles because they had not joined the motion, nor objected to the shackles.

But here’s a question to those attorneys who think their clients are better off with plea bargains: do you really have your clients’ informed consent to plead them out?

Informed consent means that you have fully and completely explained to your clients what will happen to them if they accept the plea agreement. You have a responsibility to ensure that they “get it,” too. None of this “here’s the offer from the district attorney if you take it you get to go home now butcannevervoteagainownagunagainrunforpublicoffice buyahousegetagoodjoboranyoftheotherthingsnormalhumanbeingstakeforgrantedinitialeachoftheseboxesandsignthis form” bullshit.

If you really believe what you say, Norm, you have to explain to your clients who will accept plea bargains other than the fabulous misdemeanor offer mentioned in your blog post what it means to be “marred for life as a felon.” (I don’t know if that was supposed to say “marked” or “marred.” Either one works here and “marred” works better, although you don’t normally hear it that way.)

Pay attention, Gideon, and you’ll notice that the idea did not “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.” It originated from the mouth of a woman who, unlike you, slogged through those trenches and lives with the consequences of it every day of her life. In discussing plea bargains, do you tell your clients the ways they will suffer — as she did — after the custodial portion of their sentence has been served?

How many people would fight, rather than take a plea, if they knew what the rest of their lives would be like because of their decision?

If you don’t explain what will happen after incarceration, you cannot claim to be looking out for your clients’ interests, because you don’t know whether you are, or are not.

My disagreement over whether the idea proposed is crazy — and possibly over what needs to be explained to people considering a plea “bargain” — notwithstanding, Norm and Gideon are right about this much: the risks are horrendous. For one thing, unless a goodly portion of people refuse plea bargains, they will simply suffer an extended incarceration period without any real benefit. Because as Michelle Alexander pointed out to Susan Burton — and as Norm, Gideon, Bobby, me, and thousands of other criminal defense attorneys would agree — well…

“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.

Not only will those who fight back in the absence of an organized and concentrated effort to deliberately overload the system spend more time in prison, they will still suffer the post-incarceration consequences Ms. Burton suffered.

Sadly, the real reason Susan Burton’s suggestion is unlikely to succeed is because too many innocent people have been taught to accept the status quo as unchangeable. This includes those charged with crimes and those who advise them. No longer we, the People — the only appropriate label is “we, the Sheeple.”

This is exactly what the system depends upon. This is exactly what those in power have sought to shape.

And it is all they care about. I do not believe it is an accident that voting is one of the “disabilities” one suffers after a felony conviction. As another academic, Alexandra Natapoff, points out in “Misdemeanors,” [1]Natapoff, Alexandra, Misdemeanors (February 24, 2012). Southern California Law Review, Vol. 85, 2012; Loyola-LA Legal Studies Paper No. 2012-08. Available at SSRN: http://ssrn.com/abstract=2010826 there are approximately one million felony convictions in the United States each year. Take away their voting rights and you’ve taken away their ability to fight back as society turns them into a permanently-exploited underclass.

Yet, stop. Think about that. Approximately one million felony convictions each year. And, incidentally, approximately ten-and-a-half-million misdemeanors a year.

Just how fast do you think the system will come crashing down if even a fraction begin to refuse plea bargains?

In the end, the choice is not for timid attorneys to make; the decision on whether or not to accept a plea agreement rests by law, as it should, with the individual client. It may be that, fully informed, a majority of our clients will voluntarily join their ranks, not bothering to fight even what may be unjust charges.

But that’s a choice each client — properly informed — has to make for themselves and not because their defense attorneys are squeamish about the outcome.

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References   [ + ]

1. Natapoff, Alexandra, Misdemeanors (February 24, 2012). Southern California Law Review, Vol. 85, 2012; Loyola-LA Legal Studies Paper No. 2012-08. Available at SSRN: http://ssrn.com/abstract=2010826

38 comments

  1. Some further thoughts on crashing the system.

    I have to wonder if Gideon underestimates how many innocent people are arrested and how weak the cases actually are. I think misdemeanors are where it is at. As Rick said,, there are over 10 million of them a year. Also, people need to realize that police fabricate misdemeanors like crazy.

    And I think it absolutely has to be said that defense attorneys in general, including public defender’s office, do little real investigation of cases, especially misdemeanor cases — let’s face it — so when Gideon talks about whether cases are weak or not, I assume that she is saying, at first glance, and that she has no educated sense of whether the last 1000 misdemeanor cases she’s seen are really weak or not.

    It is understood here in Connecticut that fabricated misdemeanor charges are absolutely rampant and anyone who knows the systems and controls in place understands instantly how and why police get away with that

    Crashing the courts will hit the court schedules, will hit prosecutors and will hit Public Defenders hard. And imagine that – public defenders, like all defense lawyers, don’t do the minimum amount of investigation required to properly advise their clients of the risks as it is. If the courts were crashed, they’d be able to do even less to prepare their cases.

    Let’s tell the whole truth here — when clients are trying to decide whether to take a plea, in that equation they are including their estimation of your performance so far as well. What is commonly being taken into account regarding that factor is the lack of investigation — the prospects of going to trial with so little of the potential defense evidence. Lawyers don’t seem to understand how much clients value that above and beyond their lawyer’s knowledge of procedure or prowess before a jury, or familiarity with the courthouse. The inability to efficiently and effectively gather defense evidence is a notoriously common weakness of defense lawyers. Many don’t even consider that a central part of their jobs.

    The client reasons that since my lawyer isn’t going to be able to put on the best case, and I can’t get him or her to do so no matter how much i beg, the plea looks safer to me. That is happening all the time.

  2. Some further thoughts on crashing the system.

    I have to wonder if Gideon underestimates how many innocent people are arrested and how weak the cases actually are. I think misdemeanors are where it is at. As Rick said,, there are over 10 million of them a year. Also, people need to realize that police fabricate misdemeanors like crazy.

    And I think it absolutely has to be said that defense attorneys in general, including public defender’s office, do little real investigation of cases, especially misdemeanor cases — let’s face it — so when Gideon talks about whether cases are weak or not, I assume that she is saying, at first glance, and that she has no educated sense of whether the last 1000 misdemeanor cases she’s seen are really weak or not.

    It is understood here in Connecticut that fabricated misdemeanor charges are absolutely rampant and anyone who knows the systems and controls in place understands instantly how and why police get away with that

    Crashing the courts will hit the court schedules, will hit prosecutors and will hit Public Defenders hard. And imagine that – public defenders, like all defense lawyers, don’t do the minimum amount of investigation required to properly advise their clients of the risks as it is. If the courts were crashed, they’d be able to do even less to prepare their cases.

    Let’s tell the whole truth here — when clients are trying to decide whether to take a plea, in that equation they are including their estimation of your performance so far as well. What is commonly being taken into account regarding that factor is the lack of investigation — the prospects of going to trial with so little of the potential defense evidence. Lawyers don’t seem to understand how much clients value that above and beyond their lawyer’s knowledge of procedure or prowess before a jury, or familiarity with the courthouse. The inability to efficiently and effectively gather defense evidence is a notoriously common weakness of defense lawyers. Many don’t even consider that a central part of their jobs.

    The client reasons that since my lawyer isn’t going to be able to put on the best case, and I can’t get him or her to do so no matter how much i beg, the plea looks safer to me. That is happening all the time.

  3. Shoot, my post got all screwed up — did it post? It was screwed up enough without mis-posting on top of it..

    Here is an edit:

    I know this discussion is just over a year old but what the heck. The weather is so beautiful here today that I am having a hard time concentrating on work. I am surfing.

    And I am about to take a pot shot. Or I think say some true things maybe not in a nice way.

    Gideon is presumably a Connecticut public defender, according to his/her blog.

    Let’s point to a couple of simple but heinous practices of the Public Defender’s Office in Connecticut.

    1. There are reports that it is the policy of that office not to advise clients that they can reject nolle’s. I assume because this office is busy and feels that nolle’s are good-enough results. But in Connecticut defendants have a right to reject those and demand a dismissal or trial.

    There are two reports I know of where that wasn’t communicated to clients but clients figured it out and knew it and tried to invoke it.

    In the first case the defendant failed to move the attorney even though rejecting the nolle would probably have triggered a dismissal because the officers involved in the arrest were indicted by federal authorities and all their cases were being thrown out. Not only that, as usual, it all happened behind closed doors, and I mean chamber’s doors, with the judge. So the defendant against his will accepted the nolle as the final disposition of that case even though he could have gotten a dismissal and in Connecticut had the right to demand that — that’s not a decision his lawyer can take from him. This is codified in Connecticut. I imagine it is elsewhere too.

    In the second case I know of in detail, the defendant argued ad nauseum for a week with disingenuous public defenders who still, after all that, would not explicitly acknowledge the defendant had that right or that they failed to inform her of it and further tried to persuade her that since she had argued for a week with them, it was too late. She kept pushing like mad until they were so sick of her they did it. They had her dismissal within five lousy minutes of asking for one. Prosecution said ‘cool, no problem’ without a hitch, according to them. Few minutes later they were in front of a judge who mindlessly dismissed.

    The first example is worse than the second on its face because the second just comes off like public defenders cutting corners to speed up their work, even if it cuts into a defendant’s rights. Meanwhile, the first example appears to be of corruption.

    2. The public defender’s office tells defendants they can’t look at the arrest police report even though the public defender has a copy of it. (I am not talking about when the PD hasn’t even received it yet) They wave supposed justification for it in the form of some cock-eyed rule that doesn’t even say this. Result is that only clients with private attorneys who are not playing by the same unwritten rules are the only ones allowing their clients to read the police narratives that underlie the charges against them. Imagine how that is for defendants who are innocent of fabricated charges based on conduct the police have never even described to them — They honestly protest they don’t know what they did, I mean really, they really don’t know. All they have access to is the barebones statute.

    Anyway, that is an extreme example and it happens in Connecticut but for any defendant it is ridiculous in the absence of some indication that the defendant is dangerous to witnesses. The Public Defender’s Office categorically denies this to everyone.

    When I read the NYT column I followed up by searching for other information about Susan Burton and I immediately understood what she was going through and why she felt such drastic measures were worth it. Public defenders have none of the incentives she has for pointing to this tactic.

    Also, I fail to see a distinction that matters enough between what Gideon is saying and what right wingers out of U Chicago might say about the so-called “recidivist innocent.” The argument being that a plea bargain is a good result for subsequent false arrests of someone who was once convicted of something . In other words, when police keep arresting someone they once arrested and who then was convicted, someone who isn’t breaking the law now, they are damaged goods already and a plea bargain in that scenario is no shame. We should be happy with that. The system is working.

    Finally, when we talk about police targeting certain people for re-arrest, we ALWAYS use as an example someone who once broke the law but no longer is but keeps getting arrested anyway because they are on police radar or malicious police know they can get away with it or their RAP sheet pops up on every traffic stop, prejudicing a cop, etc.

    Yet, when we raise the issue of the person who was falsely arrested once and thereby is now at increased risk of rearrest, someone who has never been convicted of anything, the same people who pontificate on the former turn and act incredulous about this, as if it is unlikely or rare. Yet it is not any less likely at all. Of course someone who was innocent the first time would have factors like an arrest record and/or angry cops putting him or her at greater risk of future arrests

    There are people who haven’t broken laws who keep getting arrested. Those people are totally desperate to do something to stop it. They know there is absolutely nothing they can do to prevent it because obeying the law, what most people think is preventative, doesn’t work for them.

    Public defenders with blinders on, offering the habitual conventional services in dealing with clients with that background aren’t really doing their clients a service, no matter what Gideon says. These defendants aren’t asking their public defenders to go above and beyond their statutory or policy-set duties either. (just read the duties of the Connecticut public defender’s office and you’ll see).

    What they are asking their public defenders to do is abandon the mindless routine processing of their defense and look to all their proscribed duties and judge what they can do if they only would.

    Since this means working a little harder than they already are (probably they are already working harder and longer than the consent decree in place in Connecticut allows them to) maybe it is time to lay off the blog for a while and make more of a difference.

    As for a lawyer’s strike — that is the best idea I have ever heard in my life. If self-described liberal advocates really want to distinguish themselves from cynical elitist wingnuts who use the term “recivist innocent” without even cringing, then prove it by becoming activist in a way, then, that you know WON’T harm your clients. Start organizing a strike, start threatening one. See how long it takes to get people to the table. It won’t take long and I believe a strike could be averted.

    A final word on Connecticut public defenders:

    Aside from their nasty little violations they work hard and do get good results in this state. Many are very competent and experienced. And for capital crimes they never allow incompetent attorneys near them. Connecticut is not all bad.

    But Connecticut public defenders have no reform agenda. They ignore grassroots efforts and have missed opportunity after opportunity to build change. Why is that? I think it is because of the way they are appointed and ultimately under the thumb of the courts.

    One district chief i know of drives a BMW and I imagine he wants to continue to do that.

    Compare the Connecticut system to Seattle’s and tell me there is not a huge difference.

    So Gideon, I don’t particularly enjoy singling you out for being a Connecticut publc defender, but it is worth it to take the opportunity to tell Connecticut public defenders to put their money where their mouths are. If you care so much, start organizing a strike. Start encouraging the collection of testimonials and examples from the grassroots.etc etc. Start identifying trends and calling them out. Create a public agenda and a public platform. The Connecticut office has abandoned its duty to improve justice here. It is satisfied to live within the confines of the status quo. It’s made it everyone else’s problem but its own to bring change but those that would need its help.

  4. Shoot, my post got all screwed up — did it post? It was screwed up enough without mis-posting on top of it..

    Here is an edit:

    I know this discussion is just over a year old but what the heck. The weather is so beautiful here today that I am having a hard time concentrating on work. I am surfing.

    And I am about to take a pot shot. Or I think say some true things maybe not in a nice way.

    Gideon is presumably a Connecticut public defender, according to his/her blog.

    Let’s point to a couple of simple but heinous practices of the Public Defender’s Office in Connecticut.

    1. There are reports that it is the policy of that office not to advise clients that they can reject nolle’s. I assume because this office is busy and feels that nolle’s are good-enough results. But in Connecticut defendants have a right to reject those and demand a dismissal or trial.

    There are two reports I know of where that wasn’t communicated to clients but clients figured it out and knew it and tried to invoke it.

    In the first case the defendant failed to move the attorney even though rejecting the nolle would probably have triggered a dismissal because the officers involved in the arrest were indicted by federal authorities and all their cases were being thrown out. Not only that, as usual, it all happened behind closed doors, and I mean chamber’s doors, with the judge. So the defendant against his will accepted the nolle as the final disposition of that case even though he could have gotten a dismissal and in Connecticut had the right to demand that — that’s not a decision his lawyer can take from him. This is codified in Connecticut. I imagine it is elsewhere too.

    In the second case I know of in detail, the defendant argued ad nauseum for a week with disingenuous public defenders who still, after all that, would not explicitly acknowledge the defendant had that right or that they failed to inform her of it and further tried to persuade her that since she had argued for a week with them, it was too late. She kept pushing like mad until they were so sick of her they did it. They had her dismissal within five lousy minutes of asking for one. Prosecution said ‘cool, no problem’ without a hitch, according to them. Few minutes later they were in front of a judge who mindlessly dismissed.

    The first example is worse than the second on its face because the second just comes off like public defenders cutting corners to speed up their work, even if it cuts into a defendant’s rights. Meanwhile, the first example appears to be of corruption.

    2. The public defender’s office tells defendants they can’t look at the arrest police report even though the public defender has a copy of it. (I am not talking about when the PD hasn’t even received it yet) They wave supposed justification for it in the form of some cock-eyed rule that doesn’t even say this. Result is that only clients with private attorneys who are not playing by the same unwritten rules are the only ones allowing their clients to read the police narratives that underlie the charges against them. Imagine how that is for defendants who are innocent of fabricated charges based on conduct the police have never even described to them — They honestly protest they don’t know what they did, I mean really, they really don’t know. All they have access to is the barebones statute.

    Anyway, that is an extreme example and it happens in Connecticut but for any defendant it is ridiculous in the absence of some indication that the defendant is dangerous to witnesses. The Public Defender’s Office categorically denies this to everyone.

    When I read the NYT column I followed up by searching for other information about Susan Burton and I immediately understood what she was going through and why she felt such drastic measures were worth it. Public defenders have none of the incentives she has for pointing to this tactic.

    Also, I fail to see a distinction that matters enough between what Gideon is saying and what right wingers out of U Chicago might say about the so-called “recidivist innocent.” The argument being that a plea bargain is a good result for subsequent false arrests of someone who was once convicted of something . In other words, when police keep arresting someone they once arrested and who then was convicted, someone who isn’t breaking the law now, they are damaged goods already and a plea bargain in that scenario is no shame. We should be happy with that. The system is working.

    Finally, when we talk about police targeting certain people for re-arrest, we ALWAYS use as an example someone who once broke the law but no longer is but keeps getting arrested anyway because they are on police radar or malicious police know they can get away with it or their RAP sheet pops up on every traffic stop, prejudicing a cop, etc.

    Yet, when we raise the issue of the person who was falsely arrested once and thereby is now at increased risk of rearrest, someone who has never been convicted of anything, the same people who pontificate on the former turn and act incredulous about this, as if it is unlikely or rare. Yet it is not any less likely at all. Of course someone who was innocent the first time would have factors like an arrest record and/or angry cops putting him or her at greater risk of future arrests

    There are people who haven’t broken laws who keep getting arrested. Those people are totally desperate to do something to stop it. They know there is absolutely nothing they can do to prevent it because obeying the law, what most people think is preventative, doesn’t work for them.

    Public defenders with blinders on, offering the habitual conventional services in dealing with clients with that background aren’t really doing their clients a service, no matter what Gideon says. These defendants aren’t asking their public defenders to go above and beyond their statutory or policy-set duties either. (just read the duties of the Connecticut public defender’s office and you’ll see).

    What they are asking their public defenders to do is abandon the mindless routine processing of their defense and look to all their proscribed duties and judge what they can do if they only would.

    Since this means working a little harder than they already are (probably they are already working harder and longer than the consent decree in place in Connecticut allows them to) maybe it is time to lay off the blog for a while and make more of a difference.

    As for a lawyer’s strike — that is the best idea I have ever heard in my life. If self-described liberal advocates really want to distinguish themselves from cynical elitist wingnuts who use the term “recivist innocent” without even cringing, then prove it by becoming activist in a way, then, that you know WON’T harm your clients. Start organizing a strike, start threatening one. See how long it takes to get people to the table. It won’t take long and I believe a strike could be averted.

    A final word on Connecticut public defenders:

    Aside from their nasty little violations they work hard and do get good results in this state. Many are very competent and experienced. And for capital crimes they never allow incompetent attorneys near them. Connecticut is not all bad.

    But Connecticut public defenders have no reform agenda. They ignore grassroots efforts and have missed opportunity after opportunity to build change. Why is that? I think it is because of the way they are appointed and ultimately under the thumb of the courts.

    One district chief i know of drives a BMW and I imagine he wants to continue to do that.

    Compare the Connecticut system to Seattle’s and tell me there is not a huge difference.

    So Gideon, I don’t particularly enjoy singling you out for being a Connecticut publc defender, but it is worth it to take the opportunity to tell Connecticut public defenders to put their money where their mouths are. If you care so much, start organizing a strike. Start encouraging the collection of testimonials and examples from the grassroots.etc etc. Start identifying trends and calling them out. Create a public agenda and a public platform. The Connecticut office has abandoned its duty to improve justice here. It is satisfied to live within the confines of the status quo. It’s made it everyone else’s problem but its own to bring change but those that would need its help.

  5. I know this discussion is just over a year old but what the heck. The weather is so beautiful here today that I am having a hard time concentrating on work. I am surfing.

    And I am about to take a pot shot. Or I think say some true things maybe not in a nice way.

    Gideon is presumably a Connecticut public defender, according to his/her blog.

    Let’s point to a couple of simple but heinous practices of the Public Defender’s Office in Connecticut.

    1. There are reports that it is the policy of that office not to advise clients that they can reject nolle’s. I assume because this office is busy and feels that nolle’s are good-enough results. But in Connecticut defendants have a right to reject those and demand a dismissal or trial.

    There are two reports I know of where that wasn’t communicated to clients but clients figured it out and knew it and tried to invoke it.

    In the first case the defendant failed to move the attorney even though rejecting the nolle would probably have triggered a dismissal because the officers involved in the arrest were indicted by federal authorities and all their cases were being thrown out. Not only that, as usual, it all happened behind closed doors, and I mean chamber’s doors, with the judge. So the defendant against his will accepted the nolle as the final disposition of that case even though he could have gotten a dismissal and in Connecticut had the right to demand that — that’s not a decision his lawyer can take from him. This is codified in Connecticut. I imagine it is elsewhere too.

    In the second case I know of in detail, the defendant argued ad nauseum for a week with disingenuous public defenders who still, after all that, would not explicitly acknowledge the defendant had that right or that they failed to inform her of it and further tried to persuade her that since she had argued for a week with them, it was too late. She kept pushing like mad until they were so sick of her they did it. They had her dismissal within five lousy minutes of asking for one. Prosecution said ‘cool, no problem’ without a hitch, according to them. Few minutes later they were in front of a judge who mindlessly dismissed.

    2. The public defender’s office tells defendants they have no right to view the arrest police report even though the public defender has a copy of it. (I am not talking about when the PD hasn’t even received it yet) They wave supposed justification for it in the form of some cock-eyed rule that doesn’t even say this. Result is that only clients with private attorneys who are not playing by the same unwritten rules are the only ones allowing their clients to read the police narratives that underlie the charges against them. Imagine how that is for defendants who are innocent of fabricated charges the police have never even described to them — they literally have no idea what conduct is being alleged underlying that disorderly conduct charge — no description of the underlying behavior is even available to them. Anyway, that is an extreme example and it happens in Connecticut but for any defendant it is ridiculous in the absence of some indication that the defendant is dangerous to witnesses. But the Public Defender’s Office categorically denies this tot — I say routine because these practices appear to be normal routine.

    When I read the NYT column I followed up by searching for other information about Susan Burton and I immediately understood what she was going through and why she felt such drastic measures were worth it. Public defenders have none of the incentives she has for pointing to this tactic.

    Also, I fail to see a distinction that matters enough between what Gideon is saying and what right wingers out of U Chicago might say about the so-called “recidivist innocent.” The argument being that a plea bargain is a good result for subsequent false arrests of someone who was once convicted of something . In other words, when police keep arresting someone they once arrested and who then was convicted, someone who isn’t breaking the law now, they are damaged goods already and a plea bargain in that scenario is no shame. We should be happy with that. The system is working.

    Finally, when we talk about police targeting certain people for re-arrest, we ALWAYS use as an example someone who once broke the law but no longer is but keeps getting arrested anyway because they are on police radar or their RAP sheet pops up on every traffic stop, prejudicing the cop, etc.

    Yet, when we raise the issue of the person who was falsely arrested once and thereby is now at increased risk of rearrest, someone who has never been convicted of anything, the same people who pontificate on the former turn and act incredulously about this, as if it is unlikely or rare.

    It is not any less likely or any rarer in my estimation than the other example.

    There are people who haven’t broken laws who keep getting arrested. Those people are totally desperate to do something to stop it and get help from nowhere usually. Their lives just go down the tubes. They know there is absolutely nothing they can do to prevent it because obeying the law, what most people think is preventative, doesn’t work for them. They are sitting ducks. Public defenders with blinders on, going through the usual routine in dealing with clients with that background aren’t really doing their clients a service, no matter what Gideon says, nor are they asking their public defenders to go above and beyond their statutory or policy-set duties (just read the duties of the Connecticut public defender’s office and you’ll see). What they are asking their public defenders to do is abandon the mindless routine processing of their defense and look to all their proscribed duties and judge what they can do if they only would.

    Since this means working a little harder than they already are (probably they are already working harder and longer than the consent decree in place in Connecticut allows them to) maybe it is time to lay off the blog for a while and make more of a difference

  6. I know this discussion is just over a year old but what the heck. The weather is so beautiful here today that I am having a hard time concentrating on work. I am surfing.

    And I am about to take a pot shot. Or I think say some true things maybe not in a nice way.

    Gideon is presumably a Connecticut public defender, according to his/her blog.

    Let’s point to a couple of simple but heinous practices of the Public Defender’s Office in Connecticut.

    1. There are reports that it is the policy of that office not to advise clients that they can reject nolle’s. I assume because this office is busy and feels that nolle’s are good-enough results. But in Connecticut defendants have a right to reject those and demand a dismissal or trial.

    There are two reports I know of where that wasn’t communicated to clients but clients figured it out and knew it and tried to invoke it.

    In the first case the defendant failed to move the attorney even though rejecting the nolle would probably have triggered a dismissal because the officers involved in the arrest were indicted by federal authorities and all their cases were being thrown out. Not only that, as usual, it all happened behind closed doors, and I mean chamber’s doors, with the judge. So the defendant against his will accepted the nolle as the final disposition of that case even though he could have gotten a dismissal and in Connecticut had the right to demand that — that’s not a decision his lawyer can take from him. This is codified in Connecticut. I imagine it is elsewhere too.

    In the second case I know of in detail, the defendant argued ad nauseum for a week with disingenuous public defenders who still, after all that, would not explicitly acknowledge the defendant had that right or that they failed to inform her of it and further tried to persuade her that since she had argued for a week with them, it was too late. She kept pushing like mad until they were so sick of her they did it. They had her dismissal within five lousy minutes of asking for one. Prosecution said ‘cool, no problem’ without a hitch, according to them. Few minutes later they were in front of a judge who mindlessly dismissed.

    2. The public defender’s office tells defendants they have no right to view the arrest police report even though the public defender has a copy of it. (I am not talking about when the PD hasn’t even received it yet) They wave supposed justification for it in the form of some cock-eyed rule that doesn’t even say this. Result is that only clients with private attorneys who are not playing by the same unwritten rules are the only ones allowing their clients to read the police narratives that underlie the charges against them. Imagine how that is for defendants who are innocent of fabricated charges the police have never even described to them — they literally have no idea what conduct is being alleged underlying that disorderly conduct charge — no description of the underlying behavior is even available to them. Anyway, that is an extreme example and it happens in Connecticut but for any defendant it is ridiculous in the absence of some indication that the defendant is dangerous to witnesses. But the Public Defender’s Office categorically denies this tot — I say routine because these practices appear to be normal routine.

    When I read the NYT column I followed up by searching for other information about Susan Burton and I immediately understood what she was going through and why she felt such drastic measures were worth it. Public defenders have none of the incentives she has for pointing to this tactic.

    Also, I fail to see a distinction that matters enough between what Gideon is saying and what right wingers out of U Chicago might say about the so-called “recidivist innocent.” The argument being that a plea bargain is a good result for subsequent false arrests of someone who was once convicted of something . In other words, when police keep arresting someone they once arrested and who then was convicted, someone who isn’t breaking the law now, they are damaged goods already and a plea bargain in that scenario is no shame. We should be happy with that. The system is working.

    Finally, when we talk about police targeting certain people for re-arrest, we ALWAYS use as an example someone who once broke the law but no longer is but keeps getting arrested anyway because they are on police radar or their RAP sheet pops up on every traffic stop, prejudicing the cop, etc.

    Yet, when we raise the issue of the person who was falsely arrested once and thereby is now at increased risk of rearrest, someone who has never been convicted of anything, the same people who pontificate on the former turn and act incredulously about this, as if it is unlikely or rare.

    It is not any less likely or any rarer in my estimation than the other example.

    There are people who haven’t broken laws who keep getting arrested. Those people are totally desperate to do something to stop it and get help from nowhere usually. Their lives just go down the tubes. They know there is absolutely nothing they can do to prevent it because obeying the law, what most people think is preventative, doesn’t work for them. They are sitting ducks. Public defenders with blinders on, going through the usual routine in dealing with clients with that background aren’t really doing their clients a service, no matter what Gideon says, nor are they asking their public defenders to go above and beyond their statutory or policy-set duties (just read the duties of the Connecticut public defender’s office and you’ll see). What they are asking their public defenders to do is abandon the mindless routine processing of their defense and look to all their proscribed duties and judge what they can do if they only would.

    Since this means working a little harder than they already are (probably they are already working harder and longer than the consent decree in place in Connecticut allows them to) maybe it is time to lay off the blog for a while and make more of a difference

  7. I fully agree wit the author of this topic/report, whatever. Plea bargaining is a fix for the prosecution. The bottom line is this. Either your guilty or you’re not. The system is full of innocent people who were really given no other choice other than to plead guilty. Also, Plea bargaining is a “Fraud” because you do not always get what you bargained for. I know I am a victim of the same. I gave up on this corrupt system along time ago. My focus is on those who partook in my prosecution. Revenge is sweet.

  8. I fully agree wit the author of this topic/report, whatever. Plea bargaining is a fix for the prosecution. The bottom line is this. Either your guilty or you’re not. The system is full of innocent people who were really given no other choice other than to plead guilty. Also, Plea bargaining is a “Fraud” because you do not always get what you bargained for. I know I am a victim of the same. I gave up on this corrupt system along time ago. My focus is on those who partook in my prosecution. Revenge is sweet.

  9. One-year summary probation is great. A small fine with no probation and no jail term is even better. But they all show up as “misdemeanor petty theft” on a background check.

    I work in South LA. All my clients have a criminal record. A substantial number of them had imposition of sentence suspended and were given probation. Some went to prison. Others spent a few days in jail.

    The so-called “collateral consequences of a criminal conviction” do not depend much on how many days one spends in jail or if s/he went to prison. Do you really think that employers will delve into the particulars of a job applicant’s sentence? For most employers (and now increasingly landlords), it’s enough that the applicant has a record–of any kind. Title VII supposedly protects against this type of blanket discrimination. In theory.

    PS: I don’t think Michelle Alexander is advocating for this. Susan Burton is, as Rick points out. And Susan Burton isn’t asking criminal defense attorneys to do the persuading. She wants to persuade the community to stand up and fight. Yes, with individual sacrifices. I fear, however, that well-meaning criminal defense attorneys–in the name of zealous advocacy and best interest of the client–stand in the way of a new civil rights movement.

  10. One-year summary probation is great. A small fine with no probation and no jail term is even better. But they all show up as “misdemeanor petty theft” on a background check.

    I work in South LA. All my clients have a criminal record. A substantial number of them had imposition of sentence suspended and were given probation. Some went to prison. Others spent a few days in jail.

    The so-called “collateral consequences of a criminal conviction” do not depend much on how many days one spends in jail or if s/he went to prison. Do you really think that employers will delve into the particulars of a job applicant’s sentence? For most employers (and now increasingly landlords), it’s enough that the applicant has a record–of any kind. Title VII supposedly protects against this type of blanket discrimination. In theory.

    PS: I don’t think Michelle Alexander is advocating for this. Susan Burton is, as Rick points out. And Susan Burton isn’t asking criminal defense attorneys to do the persuading. She wants to persuade the community to stand up and fight. Yes, with individual sacrifices. I fear, however, that well-meaning criminal defense attorneys–in the name of zealous advocacy and best interest of the client–stand in the way of a new civil rights movement.

  11. Well, I guess the best thing is to just keep imprisoning more people than all of Europe combined. We’ll hang onto our record for refusing to deal with mental health problems, racism and poverty in a rational fashion and instead just lock up people we don’t like or otherwise want to deal with.

    The day will come when the system will crash violently, instead of because of being tied up in too many cases.

    I just hope we remember that we had a hand in bringing that about when it happens.

    P.S. Meanwhile we’re ruining more than a million lives a year with the current system.

  12. Well, I guess the best thing is to just keep imprisoning more people than all of Europe combined. We’ll hang onto our record for refusing to deal with mental health problems, racism and poverty in a rational fashion and instead just lock up people we don’t like or otherwise want to deal with.

    The day will come when the system will crash violently, instead of because of being tied up in too many cases.

    I just hope we remember that we had a hand in bringing that about when it happens.

    P.S. Meanwhile we’re ruining more than a million lives a year with the current system.

  13. Just one major problem with this boneheaded Idea: most criminal defendants believe in the justice system more than their lawyers do. They have no interest in crashing the system.

  14. Just one major problem with this boneheaded Idea: most criminal defendants believe in the justice system more than their lawyers do. They have no interest in crashing the system.

  15. I had a young 20 yr-old client who was offered a choice between pleading to a felony with no jail time or pleading to a felony with future misdemeanor treatment after six months in jail. He took the jail. I guess it was a no brainer but it still took some guts to accept the jail, and it’s sad that not only the government but society in general is so prejudiced against felons as to make this a wise decision.

  16. I had a young 20 yr-old client who was offered a choice between pleading to a felony with no jail time or pleading to a felony with future misdemeanor treatment after six months in jail. He took the jail. I guess it was a no brainer but it still took some guts to accept the jail, and it’s sad that not only the government but society in general is so prejudiced against felons as to make this a wise decision.

  17. Frankly I can’t see how anyone would even seriously consider this idea unless lawyer strikes had been tried and failed. Nobody seemed to like that idea, though, even though it’s done in other countries. Certainly the New York Times took no notice.

    In a lawyer strike there is no risk to the client, only to the lawyer. Gums up the system just as badly if done in any numbers at all.

    I wouldn’t play Russian roulette with someone else’s life, or encourage them to do so.

    I can relate to the frustration, though.

  18. Frankly I can’t see how anyone would even seriously consider this idea unless lawyer strikes had been tried and failed. Nobody seemed to like that idea, though, even though it’s done in other countries. Certainly the New York Times took no notice.

    In a lawyer strike there is no risk to the client, only to the lawyer. Gums up the system just as badly if done in any numbers at all.

    I wouldn’t play Russian roulette with someone else’s life, or encourage them to do so.

    I can relate to the frustration, though.

  19. Rick: You don’t and you shouldn’t. But lest you forget, it’s your job to give your client advice, not just lay out the options. And if you’re advising trial when they should be pleading, it’s a bad move.

    Alice: I thought that’s what I’ve been saying since this morning.

  20. Rick: You don’t and you shouldn’t. But lest you forget, it’s your job to give your client advice, not just lay out the options. And if you’re advising trial when they should be pleading, it’s a bad move.

    Alice: I thought that’s what I’ve been saying since this morning.

  21. Fascinating discussion. What we have to remember, and what makes the system keep working, is our ethical responsibility to our current clients. It might be brilliant & supremely effective to crash the system with trials of every case, but the individuals would be sacrificial lambs. Not a good outcome. The ethical thing for the public defenders & other criminal defense lawyers is to be wise enough to set the right cases for trial, to file demands for speedy trial when we know the state can’t prove their case, and to settle the cases that need to be settled with pleas. Equally critical is to tell our naive clients the truth about the consequences of entering the plea that will get them out of jail today AND the consequences of going on probation when they have no job, no driving license, no stable place to live, no public transportation and a drug addiction! IMHO we don’t set nearly enough cases for trial, but we have to try the right ones.

  22. Fascinating discussion. What we have to remember, and what makes the system keep working, is our ethical responsibility to our current clients. It might be brilliant & supremely effective to crash the system with trials of every case, but the individuals would be sacrificial lambs. Not a good outcome. The ethical thing for the public defenders & other criminal defense lawyers is to be wise enough to set the right cases for trial, to file demands for speedy trial when we know the state can’t prove their case, and to settle the cases that need to be settled with pleas. Equally critical is to tell our naive clients the truth about the consequences of entering the plea that will get them out of jail today AND the consequences of going on probation when they have no job, no driving license, no stable place to live, no public transportation and a drug addiction! IMHO we don’t set nearly enough cases for trial, but we have to try the right ones.

  23. Hey, look, I can make broad sweeping assumptions too!

    If you’re telling clients to go to trial who have no business going to trial, or telling them to go to trial because you want to crash the system and not because it’s in their best interests to do so, you’re being unethical. Simple.

    Sure, you want to bring down the system. By whatever means necessary. And those means now seem to include the welfare of your clients.

    You’re either being intentionally obtuse or practicing with blinders on if you don’t think that in the vast majority of cases, “the best possible outcome” is “least time in jail”. What good are collateral consequences if they’re going to spend 30 years in jail instead of 5 or 2?

    Stop playing with other people’s freedom for your war.

  24. Hey, look, I can make broad sweeping assumptions too!

    If you’re telling clients to go to trial who have no business going to trial, or telling them to go to trial because you want to crash the system and not because it’s in their best interests to do so, you’re being unethical. Simple.

    Sure, you want to bring down the system. By whatever means necessary. And those means now seem to include the welfare of your clients.

    You’re either being intentionally obtuse or practicing with blinders on if you don’t think that in the vast majority of cases, “the best possible outcome” is “least time in jail”. What good are collateral consequences if they’re going to spend 30 years in jail instead of 5 or 2?

    Stop playing with other people’s freedom for your war.

  25. Once the system crashes, it crashes.

    I practice in criminal courts nearly every day. Here’s the thing about that, too: recently, I’ve gotten pissed off. Though I tell my clients what I think their chances really are, I also make sure they understand what’s going to happen to them after they accept the agreement, including what’s going to happen after they are released from custody. I’ve also started offering really low rates for those who want to fight back with a trial, as I discovered finances were factoring into the equation too much (and people are scared shitless of public defenders and will stupidly hire even the worst attorney before staying with a public defender).

    Point is, there are people who aren’t fighting back, who should, but they are thinking only of “how much time am I going to get.” There’s more to a felony conviction than the time in custody.

    I don’t see things the same way you do — neither does Susan Burton, neither does Michelle Alexander, neither does Bobby Frederick from what I can tell, neither do a growing number of attorneys to whom I’ve spoken.

    Of course, I happen to support the violent overthrow of the current system, because I think we’ve reached the point where the only way the system is going to ultimately be brought down is if citizens start shooting those who comprise it, which even most of the people I just named probably think is wrong. (I believe we are going to reach that point in my own lifetime, because a portion of our country is actively working to subjugate the rest by using the legal system to strip them of all their rights, while a bigger portion stands by and allows it. The exploited portion is eventually going to get tired of it and realize that when they shoot at each other, they’re shooting their allies instead of their enemies. One day they will learn: their real enemies wear uniforms.)

    The system is, as I put it in my post, EVIL. And it needs to be brought down by whatever means are possible.

    Each person charged with a crime has to make their own choice after being fully informed of what they are up against. I don’t think you’re doing your job if you think “less time” is still the “best possible outcome.” Ten years, twenty years, what’s the difference if when you come out you have to live under a bridge or in a sewer pipe, as increasing numbers of people in America are doing already?

    Tell your clients what their life will be like after they are released and see if that doesn’t change the equation.

  26. Once the system crashes, it crashes.

    I practice in criminal courts nearly every day. Here’s the thing about that, too: recently, I’ve gotten pissed off. Though I tell my clients what I think their chances really are, I also make sure they understand what’s going to happen to them after they accept the agreement, including what’s going to happen after they are released from custody. I’ve also started offering really low rates for those who want to fight back with a trial, as I discovered finances were factoring into the equation too much (and people are scared shitless of public defenders and will stupidly hire even the worst attorney before staying with a public defender).

    Point is, there are people who aren’t fighting back, who should, but they are thinking only of “how much time am I going to get.” There’s more to a felony conviction than the time in custody.

    I don’t see things the same way you do — neither does Susan Burton, neither does Michelle Alexander, neither does Bobby Frederick from what I can tell, neither do a growing number of attorneys to whom I’ve spoken.

    Of course, I happen to support the violent overthrow of the current system, because I think we’ve reached the point where the only way the system is going to ultimately be brought down is if citizens start shooting those who comprise it, which even most of the people I just named probably think is wrong. (I believe we are going to reach that point in my own lifetime, because a portion of our country is actively working to subjugate the rest by using the legal system to strip them of all their rights, while a bigger portion stands by and allows it. The exploited portion is eventually going to get tired of it and realize that when they shoot at each other, they’re shooting their allies instead of their enemies. One day they will learn: their real enemies wear uniforms.)

    The system is, as I put it in my post, EVIL. And it needs to be brought down by whatever means are possible.

    Each person charged with a crime has to make their own choice after being fully informed of what they are up against. I don’t think you’re doing your job if you think “less time” is still the “best possible outcome.” Ten years, twenty years, what’s the difference if when you come out you have to live under a bridge or in a sewer pipe, as increasing numbers of people in America are doing already?

    Tell your clients what their life will be like after they are released and see if that doesn’t change the equation.

  27. No, it’s not a strawman. It’s taking her words – or the author of the opinion piece’s: everyone should refuse to plead.

    And what of the person against whom there is good evidence? Isn’t going to trial always a risk? If the client wants to make an informed decision that they should plead despite the 30% chance of success, that’s a valid choice for them to make. For us to tell them to forgo that choice so we can “crash the system” is nigh irresponsible.

    The system crashing – if it even happens – may work for defendant number 2000, but of the 1999 before him? My job is to secure the best possible outcome for my client. If you practice regularly in criminal court, you know that isn’t regularly going to come via a trial. It’s dangerous to think otherwise.

  28. No, it’s not a strawman. It’s taking her words – or the author of the opinion piece’s: everyone should refuse to plead.

    And what of the person against whom there is good evidence? Isn’t going to trial always a risk? If the client wants to make an informed decision that they should plead despite the 30% chance of success, that’s a valid choice for them to make. For us to tell them to forgo that choice so we can “crash the system” is nigh irresponsible.

    The system crashing – if it even happens – may work for defendant number 2000, but of the 1999 before him? My job is to secure the best possible outcome for my client. If you practice regularly in criminal court, you know that isn’t regularly going to come via a trial. It’s dangerous to think otherwise.

  29. I’m not so sure about that. I think if you want to compare extremes, then you’ll possibly win the argument, just like anyone who builds straw men wins.

    There are a whole lot — a whole lot — of people who are charged with crimes for which there is some evidence, possibly even “good” and “strong” evidence, of their guilt for whom nevertheless there is still not a slam-dunk of a win for the prosecution. Too many of those people are convinced to take the agreement because they’ll do less time in prison that way.

    If every one of those cases were fought, that would be enough to bring down the system. But too many people are frightened off because the trade-off, due to aggressive “three strikes” and other “tough on crime” laws, is typically going to be probation, or a short-term in prison, versus a long term. I’m saying these people should fight back, because the truth is that if they don’t, their lives are over anyway.

    Where I live, convicted felons might as well have targets on their backs. No matter how well they do, the police will continually harass the crap out of them and they won’t be able to do more than eke out a shitty living ever again.

    However, Susan Burton — the woman who actually made the suggestion — is right: even the guilty people whose cases are slam dunks for the prosecution, if they took up this “cause” in enough numbers, would crash the system.

    There would be nothing finer in America than to see the criminal system collapse under its own weight.

    With that, there would be no reason not to refer to it as a justice system. Because that would, indeed, be justice. Those Americans who think what we’re doing with the creation of a new exploitable underclass would get exactly what is deserved.

  30. I’m not so sure about that. I think if you want to compare extremes, then you’ll possibly win the argument, just like anyone who builds straw men wins.

    There are a whole lot — a whole lot — of people who are charged with crimes for which there is some evidence, possibly even “good” and “strong” evidence, of their guilt for whom nevertheless there is still not a slam-dunk of a win for the prosecution. Too many of those people are convinced to take the agreement because they’ll do less time in prison that way.

    If every one of those cases were fought, that would be enough to bring down the system. But too many people are frightened off because the trade-off, due to aggressive “three strikes” and other “tough on crime” laws, is typically going to be probation, or a short-term in prison, versus a long term. I’m saying these people should fight back, because the truth is that if they don’t, their lives are over anyway.

    Where I live, convicted felons might as well have targets on their backs. No matter how well they do, the police will continually harass the crap out of them and they won’t be able to do more than eke out a shitty living ever again.

    However, Susan Burton — the woman who actually made the suggestion — is right: even the guilty people whose cases are slam dunks for the prosecution, if they took up this “cause” in enough numbers, would crash the system.

    There would be nothing finer in America than to see the criminal system collapse under its own weight.

    With that, there would be no reason not to refer to it as a justice system. Because that would, indeed, be justice. Those Americans who think what we’re doing with the creation of a new exploitable underclass would get exactly what is deserved.

  31. And yes, I paid attention. And yes, I tell my clients of the consequences of their pleas. That’s what good lawyers do. Good lawyers also don’t put their interests before those of their clients. Not all clients’ interests are the same. It’s our job to recognize that and serve them, not make them the poster-children of a nuclear holocaust.

  32. And yes, I paid attention. And yes, I tell my clients of the consequences of their pleas. That’s what good lawyers do. Good lawyers also don’t put their interests before those of their clients. Not all clients’ interests are the same. It’s our job to recognize that and serve them, not make them the poster-children of a nuclear holocaust.

  33. See, I think you’re framing the discussion differently. The idea that everyone should refuse to plead and go to trial and thus bring the system to a halt is stupid, dangerous, unrealistic and impossible.

    The idea that we should not be afraid to try cases and work a little harder for our clients is a valid one.

    The two ideas are vastly different. I cannot tell a client who has a mountain of evidence against him, who is facing 40 years in jail and whose offer is 3 years to go to trial. That’s malpractice.

    What she’s advocating is borderline unethical. Heck, it might even be over the border.

  34. See, I think you’re framing the discussion differently. The idea that everyone should refuse to plead and go to trial and thus bring the system to a halt is stupid, dangerous, unrealistic and impossible.

    The idea that we should not be afraid to try cases and work a little harder for our clients is a valid one.

    The two ideas are vastly different. I cannot tell a client who has a mountain of evidence against him, who is facing 40 years in jail and whose offer is 3 years to go to trial. That’s malpractice.

    What she’s advocating is borderline unethical. Heck, it might even be over the border.

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