“You are saying it was unfair to have a fair trial?”

That was a fair question put by Justice Kennedy at oral argument today. The issue is whether a criminal defendant can be deprived of the effective assistance of counsel (for Sixth Amendment purposes) when a lawyer screwup prevents him from taking a plea deal.

The issue was presented in two companion cases, Lafler v Cooper and Missouri v. Frye. In Lafler, defense counsel gave bad advice, so that the defendant rejected a plea offer and went to trial instead. In Frye, the defendant did take a plea, but an earlier more favorable offer had never been conveyed.

Everyone accepts as given that the lawyers in these cases screwed up big time. The issue is only whether the screwups were so deficient as to rise to a constitutional violation.

Defendants do not have a right to a plea bargain, of course. The Supreme Court has spoken pretty firmly on that one. The plea bargain is, however, almost universally lauded — it allows defendants to cut their losses, prosecutors and courts to free up resources, and gives the system a chance to impose a “more fair” penalty than that which the legislature would otherwise have imposed. Plea bargains are wonderful. But there is no constitutional right to them.

Given that, the layman might be forgiven for scratching his head and wondering why these two cases were granted cert in the first place. (Laymen do that, you know.) There was no constitutional right being deprived, and there’s no doubt about the reliability of the conviction, so how could there possibly be ineffective assistance here?

That’s pretty much what the government argues — that there’s no prejudice, so there’s no Strickland problem. Being convicted after a fair trial is not prejudicial. Voluntarily taking a guilty plea is not prejudicial. The mere fact that a less harsh sentence could have been gotten with a better lawyer may perhaps be a pity, but it is not prejudicial. A do-over ought to be out of the question.

But Padilla held that ineffective assistance applies to the plea bargaining stage, that failure to advise as to immigration consequences can require just such a do-over. So the defendants argue that what was prejudiced was the outcome of the plea process itself, and not the outcome of the case. The issue for them is not whether the defendant would have been convicted or not, but whether ineffective assistance deprived them of the opportunity to get a better deal.

Both defendants argue that the correct fix would be to give them a chance to accept the earlier offer that, but for their lawyers’ failing, they would have accepted in the first place.

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There is a fear that, if the defendants win, there will be a rash of appeals claiming that prior plea offers hadn’t been conveyed, or had been rejected for stupid reasons. Who wouldn’t want to take advantage of a chance to cut their 10-year sentence down to the 2-year offer that was originally rejected? How easy is it to claim that a lawyer told you something stupid, or didn’t tell you anything at all, especially as those discussions aren’t typically recorded or transcribed — it’s a he-said-she-said at worst, and who knows what lawyers might not be persuaded to bend the truth and swear out an affidavit substantiating the defendant’s claim?

One might also fear that, given this safety valve, defendants would be more likely to take cases all the way to trial, on the off chance that they win, knowing that if all else fails they can just go back to their saved game from the plea levels. That would sort of undermine the courts’ stake in plea bargaining, clogging the courts rather than freeing them up.

These are policy issues that may well be persuasive to the justices. Not law issues, so much as practicalities.

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But what did the justices actually say today? That might give a better clue to what they might be thinking. Our take is a Roberts-Scalia-Kennedy-Thomas-Ginsburg-Alito majority against a Sixth Amendment remedy. Here are some selected quotes from the Lafler argument (the Frye argument is left as an exercise to the reader):

CJ Roberts — “How are you ever going to know that the defendant would have accepted the plea agreement? Because by not accepting it he has a chance of going scot-free. He’s going to have a fair trial, that’s the assumption, and he may be acquitted … presumably the defendant will always say, ‘I would have taken that deal, because it’s better.’ So how is a judge supposed to go back and decide whether that’s true or not?”

Scalia — “Have you provided ineffective assistance of counsel if you are a lousy bargainer?” | “This man deserved to get the sentence he got, didn’t he? He had a full and fair trial. A jury of 12 people, finding him guilty beyond a reasonable doubt, determined that he deserved that sentence. How could it be unfair to give him the sentence that he deserved?” | “We reinstate the offer, okay. He accepts the offer and it goes to the judge and the judge says, ‘no, this is outrageous. No, I’m not going to approve of this plea bargain.’ What happens then?” | “There is no prejudice unless [the defendant] would have accepted the deal. How are you going to know that he would have? Of course he is going to say that he would have, but how is a trial judge going to make a credibility determination on that?”

Kennedy — “Let’s say the remedy is it goes back before the judge … I should ignore everything that I learned during the trial?”

Breyer — “As I’ve looked at it, I don’t see the ineffective assistance of counsel within the AEDPA meaning…. So what am I supposed to do about that? … In my own opinion at this moment, perhaps no one else’s, there is no ineffective assistance of counsel such that the Sixth Circuit could set that aside.” | “So if you are the defense counsel, the best thing for you to do is not communicate any plea offer you get, and then if your client is found guilty, then you can go back and say, ‘oh by the way, I didn’t tell you about this,’ and he gets a whole new trial?”

Ginsburg — “Explain why defective advice causing a plea, that qualifies [for relief], but defective advice causing a defendant to turn down a plea does not?” | “That [the defendant would have gotten a better deal] is certainly controverted, because of two interventions: The prosecutor can say ‘no deal; I’m withdrawing it,’ even after an initial acceptance; and the judge can say, ‘I think 51 to 68 is entirely improper for what this man did.”

Alito — “What if it had come to the prosecutor’s attention during this intervening time that your client had committed four or five other shootings? Would you still be entitled to specific performance?” | “Do you think it’s feasible to draw a distinction between this case, where there was arguably inaccurate legal advice, and the case in which the defense attorney simply makes a terribly mistaken calculation about the chances of a favorable verdict at trial?”

Sotomayor — “Counsel, isn’t there a right to make a critical decision on whether to accept or reject a plea bargain, once offered?” | “How can a trial be fair when the attorney is going into trial thinking [the stupid advice he’d given when counseling against taking a plea]?”

Kagan — “Here the person is sitting in prison for three times as long as he would have been sitting in prison had he had effective assistance of counsel at the plea bargaining stage, so why doesn’t that just meet the requirements of Strickland, both deficiency and prejudice … and … a different outcome.” | “You don’t contest that plea bargaining is a critical phase, entitling somebody to a lawyer and to an effective lawyer, do you? … Because we have said that many times, isn’t that right?” | “To deprive somebody of a lawyer at that stage of the process, where 98 percent of the action occurs, is inconsistent with the Sixth Amendment — that’s what we’ve said, isn’t that right?” | “Have you ever seen a critical phase before in our Sixth Amendment jurisprudence where the right to a lawyer depends upon what happens during that critical phase — where if one outcome results there is no Sixth Amendment right, but if another outcome results there is?”

Thomas — “…”

So yeah, we’re calling it 6-3. What’s your call?

Because we were bored out of our skull this afternoon, we checked this blog’s stats on Google Analytics.  Browsing through the various keywords people have used to find this blog over the past year, all we can say is “The hell is wrong with you people?”

Leaving aside the freaks and weirdos (and possibly some of their clients), however, it seems that most people find this blog by asking Google the same handful of questions.  The number one search engine query that get people here, every month this year, is something along the lines of “why become a lawyer.”  Number two includes variations on a theme of “can a cop lie about whether he’s a cop.”  The top five are rounded out by queries about what crimes Goldman Sachs may have committed, connections between Adam Smith and insider trading, and what one should say to a judge at sentencing.

We’re not sure that we’ve actually discussed all of these topics here.  Then again, we might have, and just forgot it (which is a distinct possibility — these posts are all written in a single pass, without any real editing, and usually are not given another thought once they’re posted.  If you ever wondered what “ephemera” meant, you’re looking at it right now.)

Still, in the interests of alleviating our boredom public service, here are some quick answers to our readers’ most pressing questions:

1. Why Should You Become a Lawyer?

Because you feel a calling to serve others.  Because you want to make a difference in the lives of others.  Because you are genuinely interested in the rules by which human society functions, why people behave the way they do, and the policies and interests underlying it all.  If those are your reasons, then you belong.

Not because you want to make a buck.  Not because you want prestige.  Not because you can’t think of anything else to do.  Not because you want a cool job.  If those are your reasons, you don’t belong.

2.  Can a Cop Lie to You About Whether He’s a Cop?

Of course he can.  Cops are allowed to lie to you about pretty much anything, and that includes whether they’re really an undercover.  Cops are trained to make false statements in order to elicit a confession — it’s not the only way, but it’s a time-honored investigative technique that gets results.  Whether that is ethical or not is not the issue.  But there is no ethical question when it comes to whether an undercover has to admit he’s carrying a badge.  The slightest bit of thought should make that obvious.  An undercover dealing with some dangerous thugs is likely to get shot if they find out he’s a cop.  At the very least, if he himself isn’t killed, the investigation sure will be.  It would be beyond stupid to require undercover officers to announce that fact if someone asked them.  Nevertheless, idiots continue to ask “you’re not a cop, right?” and then go ahead with their crime when the cop says no.

3.  What Crimes did Goldman Sachs Commit?

None that we’re aware of.

Certain people like to rant that there aren’t enough criminal prosecutions to punish the Wall Street types who “caused” the financial meltdown of the last few years.  We’d like to remind those people that stupid business decisions are not a crime.  Neither are smart business decisions undercut by market forces beyond one’s control.  Neither are decisions to hold off on extending credit in uncertain times, especially when the uncertainty is exacerbated and extended by foolish governmental actions.  And neither are those foolish governmental actions criminal.

The one criminal case that was brought, against Bear Stearns executives, was a flop because those guys didn’t commit any crimes either, and the jury saw it pretty clearly.  The case shouldn’t have been brought in the first place, and wiser heads have prevailed against calls for further similar arrests.  The prosecutorial focus has instead shifted to frauds that were exposed once the market turned sour, and to the current fad of insider-trading cases.

4.  Would Adam Smith Approve of Insider Trading?

Depends on which Adam Smith scholar you ask, and on your definition of insider trading.  Speaking generally, he’d probably be in favor of economic decisions being made rationally, taking into account all the relevant information.  He’d probably be opposed to keeping such information secret in the first place.  Still, we’re not an Adam Smith scholar (thank goodness — he’s almost impossible to read).  For a thoughtful and insightful summary of his writings, however, we heartily recommend P.J. O’Rourke’s take “On the Wealth of Nations.”

5.  What Should You Say to the Judge at Sentencing?

It depends on your particular case.  In some cases, especially where there’s been an agreed-upon plea deal, you don’t need to say anything at all.  In some cases, you the defendant opening your mouth is only going to piss off the judge so he gives you a few extra months or years in the slammer.  In other cases, a sincere statement can demonstrate that you’re not the kind of person who ought to get a harsh sentence.  Depending on your circumstances, this could mean a statement of remorse, of change, of compassion, or other things likely to make a difference.

Even if you don’t say anything yourself, and it’s not an agreed-upon plea, it is often a good idea to have a lot of people in your community write letters to the judge showing why you should get a lighter sentence.  These letters should not be sent to the judge, but instead should be sent to your attorney, so he or she can put them together as an appendix to a sentencing memorandum arguing for a lighter sentence.  Letters should be from people who actually know you.  They should state facts about you, specific things you’ve done, as specific as possible.  Provide facts from which the judge can draw conclusions.  The worst letters just provide the conclusory statement that this guy deserves a lighter sentence, without providing any facts to support it.  No, we take that back, the worst letters aren’t about you at all, but are about the writer of the letter — how much they’ll miss you, how hard it will be on them if you go to jail, etc.  Sentencing is not about them, it’s about you.  The judge isn’t going to feel like he’s the one putting them through any hardship; you are.  Just focus on reasons why you shouldn’t get a higher sentence, period.

And if saying anything will just make it worse, then don’t say anything.

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There.  Nothing too in-depth here, but we hope it sorta answers some of your questions.

Dang, that wasn’t as time-consuming as we’d hoped.  Now what else are we going to do this afternoon?

Every defense attorney has their own favorite metaphor for what we do.  Some talk of it like a street fight, envisioning a slugfest with the cops or the court or DA (or all three).  Others speak as if it’s a poker game (with the other side usually holding all the aces).  Occasionally, we even hear chess analogies.  Well, for whatever reason, we tend to think in fencing terms.

On the one hand, this makes little sense, as we haven’t fenced much since our kids started coming along.  (Literally.  Our wife went into labor with the first one right in the middle of us getting trounced by some French guy in an épée tournament.)  But on the other hand, we do find the analogy extremely useful.

Like fencing, much of what we do is reactive.  There’s something they teach fencers called the “tactical wheel” which starts off with a simple attack, which gets countered by a parry and riposte, which gets countered by a feint, which gets countered by a counterattack into the feint, and so on until you’re reacting with a simple attack.  You’re always reacting to what your opponent did, and trying to use your reaction to score off him instead.  That’s pretty much what we do.

Note that each reaction is not merely a defensive parry.  If all you’re doing is deflecting attacks, you can never win.  Eventually, one of them’s going to get through.  Every defensive action is an attack of some sort.  You win by taking the game to the other guy.  You go on the offense.  Make the other side react to you.  The best defense, as always, is a good offense.

And as in fencing, you pretty much have to take your opponent as you find him.  Different tactics are going to work with different situations.  It’s nice to know what works when.

That whole “tactical wheel” thing only really works, of course, if both you and your opponent are of intermediate skill.  A novice doesn’t always do the smart thing, which throws such rote tactics into disarray.  An expert, with a zen-like empty mind, is not hindered by the rule of thumb, and is free to react to this particular action in the most effective way.  Still, there is something to be said for a rule of thumb.  When all else fails, you have something to fall back on, which at the very least assures you of a solid, workmanlike job.  It may not be elegant, but the odds are safe.  And with the vast majority of opponents, it’s going to be all you need.

So what would such a tactical wheel look like for criminal defense?

It’s not going to be as one-dimensional as that for fencing, for one thing.  In fencing, you only have one opponent.  Here, you have to deal with a prosecutor, the police, and the judge — each of which has their own motivations and tactics.  You could get a combination of an easygoing prosecutor, a cop who’s making his story up after the fact to justify his gut reactions on the scene, and a judge who’s nice enough but doesn’t know what he’s doing.  Or you could get a true-believer prosecutor, a diligent cop, and a prick for a judge.  Or an in-over-his-head prosecutor, an average cop, and a stellar judge.  The permutations are far too many to go into in a simple blog post.

But if we limit it to just the prosecutor, we can start something useful.  Most cases, after all, are resolved between you and the prosecutor.  The fight there is to get the best disposition, as opposed to winning a trial.  Here are a few extremely glib, oversimplified examples of what might be in your toolbox in such cases:

One very common type of prosecutor is the neophyte who hasn’t really developed a sense of perspective, a working bullshit meter, or any of the other attributes of experience.  You can expect this one to play it straight.  No creativity.  Every move is a simple one.  So you respond with simple deflections and go on the offense.  Put them in a situation they have not yet learned how to deal with: being on the defensive.  Keep on the attack, hitting their errors and omissions — and they will make them — and keep them wrongfooted.  Win the psychological victory early, maybe with a motion that gently points out the right way to do their job.  Keep helping them psych themselves out, and stay in charge of that case all the way to the end.

Another common type of prosecutor is the bully.  The bully is unthinking and obstinate.  Principled argument will not work, because they’re just not thinking that hard about the case.  Their response to any reasonable suggestion or negotiation is something along the lines of “tough shit.”  They’ve given you their terms, and there is nothing you can say to change them.  Bullies are usually this way because they are in over their heads and, at some level, they know it.  It’s all they can do to hold their ground.  Any modification of their position can only be a concession of weakness.  This is the secret to dealing with them.  The proper response in this situation is to become a bully yourself.  Just say “no” to everything they throw at you.  And keep saying “no.”  It becomes a game of chicken.  The bully is going to break before you do.  It’s what they do.  The insecurity that made them a bully in the first place is what will work in your favor.

Our favorite kind of prosecutor is the smart one who is willing to consider new facts, or a new way of looking at the facts they already have.  Someone receptive to a negotiation based on underlying principles, rather than a mindless rug-bazaar back-and-forth.  They are out there.  The proper response is, of course, to change their perception of the case with new facts, a new way of looking at the facts, and principled argument.  They’re really out there.

Our least favorite kind of prosecutor is the incompetent.  They’re either careless, lazy or just plain stupid.  They’re out there, too.  They’re the ones who just don’t get it, no matter how many times you beat them over the head with the plain fact that they have no case.  You wind up going to trial on a case that never should have been written up in the first place, and you’d never counsel your client to accept the offer.  Going up against these can be immensely frustrating if you’re thinking like an intermediate fencer.  They don’t know the rules, they’re not rational, so they’re not predictable.  You have to really be zen-like here, not limited by your expectations of what ought to happen, so you’re free to react to what does happen.  (Going over their head to their supervisor is rarely as useful as one might think, because the supervisor knows even less about the case, and has little to lose from just going forward.)

And then of course you’ve got the true believer, a suited vigilante.  They are often confused with bullies, but they aren’t the same.  The true believe is firmly convinced of the rightness of this prosecution, and the offer that seems insane to you seems precisely just to them — if not obscenely lenient.  You’re not going to get anywhere trying to convince them that this particular defendant is not someone that penalty rationally applies to.  A principled discussion is not going to happen, because you’re coming from two incompatible sets of principles (one presumes).  You’re barely speaking the same language.  The trick here is to actually argue based on their own principles.  If they’re really a bully in disguise, that’s going to become obvious very soon, and just react accordingly.  But if they really are a true believer, you’re going to have to think like one yourself, if there’s going to be any meeting of the minds.  But don’t make the mistake of playing chicken with this one.  The righteous are as famous for their caving as they are for their compassion.  Take them to trial, by all means (done right, a jury can be moved to distaste for them), but don’t bluff with your client’s liberty at stake.

No matter what you do, however, you must always ALWAYS go on the offensive.  You be the one in charge of the case.  Make them react to you, and keep it that way.  Nobody ever wins by playing defense.

Another good post by Mark Bennett today over at his blog “Defending People,” entitled “Today Only?”  He recounts the plea-bargaining tactic some prosecutors use, attempting to force a plea by saying the offer is only good that one day, and won’t be offered again.

Did the words mean what they purported to, or was this just part of the ritual?  Put in practical terms, what does the criminal defense lawyer tell his client when the client asks if he can have some time to think about the plea offer?

Chances are good that the same factors that led the prosecutor to make the offer today will still exist when the case comes back to court….  There might be a reason that making the same offer at the next setting would interfere with these goals (chief isn’t here today, will be then and will nix the deal; case at a point where ADA has to get it pled or do some actual work).  If so, the prosecutor will generally identify the reason; the defense lawyer then has to decide whether the prosecutor’s assessment is correct, or whether the plea offer is likely to remain the same (or, as usually happens, get better).  Without a plausible reason for the offer to get worse, though, “today only” in the courtroom means what it means in the bazaar: it’s part of the ritual.

Over at Simple Justice, Scott Greenfield added that

Negotiating pleas isn’t for the squeamish, and if someone can bulldoze you into a plea by using the “today only” ploy, chances are you don’t have the guts for this work.  On the other hand, know your adversary, including the judge.  With some people, “today only” means exactly that, and they will cut off their nose to spite their face just to keep their word.

It’s not a job for the gutless, but better to know up front whether the person making the pitch is going to live with the consequences.  If you don’t know, it will be your client living with the consequences, whether they want to or not.

In my* experience, a “today only” ultimatum is a sign of either resignation or desperation.  It’s made in the hope that it will be taken, and the case will go away.  Maybe the prosecutor is just sick of it and doesn’t want to spend more time on it, or maybe the prosecutor is afraid of having to go to trial on it.  It’s rarely made out of sheer altruism.

The kind of prosecutor who would make a “today only” offer is usually the kind who will drop down from the offer again later on.  Backsliding is a real possibility next time, the time after that, and on the eve of trial.

During the first half of my stint as a prosecutor, I began a practice of filing and serving a written schedule of plea offers at the first arraignment on the indictment.  Few in my office did anything like that, and certainly nobody we knew did it.  If you took the plea that day, you got a great offer, less than what the case was really worth, as a bonus for taking responsibility early.  At the next big stage, it went up to the going rate for that offense and criminal history.  Once we were in hearings-and-trial mode, your offer went up again.  And once the first witness was sworn in at any hearing or trial, it was plea to the charge.

The point was not to penalize anyone for making me do any work.  I’ve always held that to be an unconscionable — if not unethical — position.  I was getting paid to do the work, and if it wasn’t being done on your case it was surely being done on someone else’s.  And believe it or not, I actually enjoyed it.  So no, it had nothing to do with whether I had to shift my lazy ass into gear.

The point was twofold: first, to reward being a stand-up guy — those willing to take the hit wound up getting a very sweet deal — and second, to provide an incentive for those who were inclined to plead anyway, to just get it over with sooner rather than later.

Of course, incentives only work if they’re consistently applied.  So I made a point of never backsliding.  The only way you’d get me to revise my offer was to give me some new facts, or a new way of looking at the facts — in which case I tried to do the right thing, whatever that happened to be (even including dismissal).

That was the key.  Consistency.  The very fact that I was consistent, meant what I said, and never backslid on my offers… that started to get around.  Towards the end of that first half of my time as an ADA, I couldn’t get a trial for love or money.  Everyone was pleading out early and often.  My favorite place to be was on trial, in front of a jury, but I was never tempted to be a jerk with my pleas to force a trial — as I was taught as a rookie, there’s nothing more despicable than trying to enhance one’s career at the expense of someone else’s life.

All that changed, however, when I joined the Rackets Bureau for the second half of my prosecutorial career.  All of a sudden, though I was running enormous cases solo, I somehow was no longer in charge of my own plea offers.

The shock hit during a fairly high-profile mob case.  I was meeting with a couple of the main defense lawyers, who I respected immensely, and who I knew had forgotten more than I’d ever known about criminal law.  So I resorted to frankness.  I was holding all the cards, so I might as well show them.  After detailing the rock-crusher case I’d built, I told them about my plea practice.  I said they should ask around, if they needed to confirm that I really would mean what I said in that schedule, so they should advise their clients accordingly.

They chuckled.

See, they knew (and I didn’t yet) that any plea offer was going to be dictated by my bureau chief, not me.  No matter what plea schedule I set, they told me, they knew from experience that my bureau chief would backslide on the eve of trial.  And he’d override me.  So they were going to advise their clients to go through the whole process, rolling the dice during the litigation phase, secure in the knowledge that the offer before trial would be just as good or better than the one I’d be offering on indictment.

I confronted my chief with this later on.  He was as honest and decent as they come, and he responded by nodding and saying “there’s some truth in that.”  And sure enough, that’s how it played out.

It was an unprincipled approach to plea bargaining, however.  It was unpredictable.  The incentives were exactly reversed.  The rational defense approach would be to plead as late in the game as possible, rather than as soon as possible — defeating pretty much the whole point of plea bargaining, if you asked me.

A prosecutor who makes “today only” offers is similarly unprincipled and inconsistent.  It’s a signal that the offer can be as good or better later on.  It gives me every reason to say “no, thanks.”  If we’re not picking a jury in five minutes, I’m probably going to see what further concessions I can get down the road.

So yeah… what Mark and Scott said.

—–

*Just for you, Scott.  Today only.

Extortion is a kind of threat.  A threat that’s so bad, it’s criminal.  For a threat to be criminal extortion, it needs to be of a kind to make someone do something against his will, that’s adverse to his own interests.

Threatening to kill a child if the parents don’t give you money, for example, would be extortion.  So too would be a civil lawyer’s threat to file criminal charges — even if such charges are warranted — if the other side doesn’t pony up with a settlement.  Another example is when a government official threatens to use his position to do something he’s perfectly entitled to do in the first place, unless the victim does him a favor first.

There are lots of examples of extortionate behavior.  But these last two examples demonstrate that the threatened action doesn’t itself have to be against the law.  The civil lawyer could go ahead and press criminal charges, but threatening to do so is against the law.  Ditto for the government official whose threat to merely do his job is a crime.  The point isn’t whether the threatened action is itself criminal, but whether the threat causes such fear as to override someone’s free will.

This is basic stuff.  Not exactly cutting-edge law here.

So how come nobody seems to have litigated the Queens (New York) District Attorney’s practice of extorting speedy trial waivers from defendants?

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In New York, there are a few different kinds of speedy trial rules.  One is the classic constitutional speedy trial rule, also embodied by statute in CPL §30.20.  It’s almost never used, because before any delay is likely to have impaired the defense in a typical case, CPL §30.30 will have kicked in.  That one, in a nutshell, calls for dismissal of a felony after roughly 183 days have counted against the People since the initial arraignment.  Delays asked for or consented to by the defense don’t count.  A third analogous rule is the “speedy indictment” rule of CPL §180.80, which says a defendant who hasn’t made bail must be indicted within 144 hours of his arrest, to the minute, or else he must be released from custody on his own recognizance.

CPL §§30.30 and 180.80 are there to make sure the prosecution does its job.  If a case has had more than 6 months of delay, and it’s the People’s fault, then the prosecution didn’t do its job, and the case gets dismissed.  If the People haven’t gotten their act together to secure an indictment against someone who’s sitting in jail, and this goes on for 6 days, then the prosecution didn’t do its job, and the defendant gets released for the rest of the case.

The policy is simple: we don’t want people rotting in jail while waiting to be formally accused of a crime, and we don’t want people’s lives on hold forever while awaiting trial.

The Queens DA’s office has come up with a workaround, to avoid having to play by these rules.

Their office policy is to require defendants to waive the CPL §§30.30 and 180.80 requirements, to enable the office to “investigate” the case more thoroughly before presenting it to the grand jury.  A defendant who does not waive these rules, the policy goes, will not be offered any plea bargain.

They’re threatening not to do their job right, unless the defendant first agrees they don’t have to do their job right.  How is this not extortion?

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Now, no defendant is entitled to a plea bargain.  It’s not a right, it’s not a guarantee, and it’s not even a privilege.  But the chance for a plea bargain — especially in the busy dockets of New York City — is certainly a fair expectation.  There is mutual benefit to all concerned: the prosecution doesn’t have to waste time and resources trying a case it didn’t need to; the courts can handle more cases without breaking the bank; and defendants get a disposition that satisfies the interests of justice without subjecting them to the higher sentence contemplated by the legislature.  The legislature countenances this practice, explicitly specifying what kinds of plea bargains are allowed in a given case.  Justice is served, all around.  And it’s the norm, the routine.  It’s a fair expectation, in almost every case.

There certainly are times when a plea bargain is not appropriate.  The most common example is when the hearings and trial have already begun.  Once the People have done all the preparation for trial and have started putting on witnesses, they don’t gain a whole lot from any plea deal. 

Another good reason not to offer a plea is when the defendant has testified in the grand jury and said he didn’t commit the crime.  There’s no reason to penalize a defendant who testified that he did do it, but threw himself on the mercy of the grand jury — that’s perfectly fine.  But a defendant who says he didn’t do it is either telling the truth — in which case he’s innocent, and it would be unethical for a prosecutor to induce an innocent person to plead guilty by offering a lighter sentence — or he perjured himself and is undeserving of any beneficial treatment.

When a prosecutor tells a defendant that he will not get a plea offer if he testifies in the grand jury that he didn’t do it, that’s nothing more or less than a fair warning.  It’s not only appropriate, it’s practically required as a matter of professional ethics.

Telling a defendant that he will not get a plea offer unless he waives his statutory rights to speedy indictment and speedy trial, on the other hand… That’s extortion, pure and simple.

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So we’ve had some clients who had done this Queens waiver with prior counsel.  (Aside: The vast majority of our clients come to us mid-case, after losing faith in their original lawyers.  It’s nice, but it also makes us wonder why they didn’t just come to us first.  But that’s a topic for a whole ‘nother blog post.)  One is a strictly routine, run-of-the-mill case, yet it took the Queens DA’s office 15 months to get off their duff and take it to the grand jury. 

That struck us as excessive, so we analyzed whether there might be a speedy-trial violation here.  The waiver sure seemed extorted, so it seemed like an argument worth raising. 

But wait a second.  This has been the Queens DA’s policy for some time now.  One would think it had already been litigated.  We enjoy this stuff, but there’s no point wasting client dollars just to re-invent the wheel.

But no.  It doesn’t seem to have been litigated.  At least there aren’t any written decisions out there on this topic that we can find.  And nobody we’ve asked — including current Queens DA personnel — seems to be aware of any cases on point.

That’s just weird.  Sure, not every defendant is going to have a problem with this.  And defense lawyers who advise their clients to execute the waiver are not often going to claim their clients were extorted.  But even so, we can’t be the first to raise the issue.

Oh, we’ve raised it now.  And it wouldn’t be our first case of first impression, by a long shot.  But it’s just weird that nobody’s already called the DA’s office on this completely wrongheaded policy.

So we’ll ask our readers: What do you think about this?  Is the Queens DA doing anything wrong by conditioning plea negotiations on a waiver?  Or are we missing something here?

Tonight, we attended a panel discussion on federal sentencing that was actually worth commenting on. Usually, these things are either so basic or insubstantial as to be a waste of time. But this one had a few choice moments we’d thought we’d share with our readers.

The panelists included John Conyers (Chairman of the House judiciary committee), William Sessions (Chair of the U.S. Sentencing Commission and Chief Judge of the District of Vermont), Jonathan Wroblewski (policy director for the DOJ, among other things), Alan Vinegrad (former US Atty for the EDNY and now a white-collar partner at Covington), Tony Ricco (mainstay of the federal defense bar), and Rachel Barkow (NYU professor, didn’t speak much). It was moderated by Judge John Gleeson of the EDNY, and we recognized in the standing-room-only audience a number of distinguished jurists and counsel.

Everyone seems to agree that the Guidelines are in need of a major overhaul. As Judge Gleeson put it, “when even the prosecutors are saying that sentences are too severe… the sentences are too severe.”

But not everyone agrees on what changes ought to be made, how drastic the changes ought to be, or even what’s causing the problems in federal sentencing.

Here’s the take-away: Everyone knows what the right thing to do is. Judges want to do the right thing, regardless of what the Guidelines say. The DOJ forces its prosecutors to do what the Guidelines say, regardless of what they think is just. Congress is incapable of doing the right thing, in its efforts to pander and blame rather than solve. And the Sentencing Commission is afraid to be independent of Congress, preferring instead to make baby steps toward eventually maybe doing the right thing.

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“Unnecessary cruelty”

For as long as we’ve been practicing law, everyone has been complaining bitterly about the 100-1 disparity between crack and powder cocaine sentences under the Guidelines, but nobody’s done anything about it. And over the last year or two, there’s been a growing movement among federal judges to push back against the dumbfoundingly disproportionate sentences for those who merely look at child porn — most recently with the Second Circuit’s Dorvee ruling a couple of weeks ago, basically telling the District Courts that the Guidelines here are crazy and ought to be ignored. (See also the NY Times’ front-page piece on Judge Weinstein this weekend, discussing his “crusade” against the “unnecessary cruelty” of the law here.)

And for as long as we’ve been in the game, the bulk of federal criminal practice has been devoted to dealing with the Guidelines. Even in this post-Booker world, the Guidelines have a huge role in federal practice. An enormous chunk of advocacy is involved in challenging the government’s Guidelines calculation, and vying for a variance or at least a departure.

We’re very opinionated here. But we’re going to try to focus on reporting in this piece. After all, these are very distinguished panelists, who frankly know far more about the sentencing sausage factory than we do. So what did the panelists have to say?

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What judges think

Judge Gleeson brought some historical perspective. In 1986, when the Guidelines were first being drafted, the nation was in a panic about the crack epidemic. Amid all the horror stories the public was hearing, Congress passed a law with mandatory minimums and elevated maximum sentences for drug kingpins. 10-year mandatory minimums for trafficking bosses, and 5-40 years for middle management. Except that’s not the way it panned out.

The Guidelines were being written to reflect the national average sentences in the preceding years. But this law, with its mandatory minimums, screwed that whole idea. The Guidelines wound up having to be redrafted, to conform to this new legislation — can’t have a Guideline sentence that’s several times lower than the minimum set by statute.

And the “kingpin” law wound up applying to everyone, including low-level street schmucks. The sentencing wound up not taking into account one’s role in the organization, but merely the amount of drugs involved. So someone on the bottom rung of a drug sale could easily wind up getting the kingpin sentence. Especially if crack was being sold, where 10 grams would be punished as severely as a kilo of powder. Only 6% of defendants are actually bosses or managers, but the 94% who got picked up on the street — the “low-hanging fruit” — went to prison in greater numbers, and for far greater terms of incarceration.

Judge Gleeson pointed out that the whole purpose of the Sentencing Commission is to protect the law from the shifting political winds of Congress. But the winds blew anyway, and Congress rejected any attempts to make the Guidelines more reasonable, as the injustices became apparent. On the contrary, the prevailing winds only blow in one direction, resulting in ever-increasing sentences as elected officials pander to the latest crime scare. Congress wound up micromanaging the Commission, directing increases for the most obscure offenses, and even making its own amendments without involving the Commission at all.

At the end of the day, drug sentences are now 3 times what there were before the Guidelines were enacted, even though the offenses themselves are no more severe than before. After Congress shot down the Commission’s first proposal to equalize cocaine sentencing, the Commission has refused to take the lead, instead waiting for Congress to lead the way. The DOJ says the crack/powder sentences should be identical. The Senate proposed that the crack disparity be reduced from 100-to-1 down to 18-to-1. The House hasn’t acted at all.

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What Congress thinks

At this point, Rep. Conyers spoke. Like most career politicians in a setting like this, he spoke an awful lot without saying much. (We got a kick out of watching the visible signs of frustration among those in the audience, who felt the various digressions on congressional history, the health-care bill, war policy and the like to be a complete waste of time. Some of the gestures and gesticulations were chuckle-inducing. Conyers seems not to have noticed that he kept losing his audience.)

What he did say that was on point was fairly interesting, however. He said the House has held back on resolving the crack/powder disparity, not because they can’t see the problem for themselves, but because the Senate’s 18-1 bill sets a limit on whatever they can hope to get if the bill ever goes to conference. Fair enough. But he didn’t offer any explanations of why 18-1 seemed rational to the Senate in the first place.

He said that it’s the conservatives and the blue dog Democrats who are opposed to sentencing fairness. So a voice vote would never work. And a suspension would require a two-thirds majority, which can’t be gotten without the votes of those very conservatives and blue dogs. [As part of the conservative Republican end of the political spectrum, however, we’d have to say Conyers’ concern is misplaced. The Republican platform may be pro-death-penalty for certain violent crimes (though we ourselves are against capital punishment, as mentioned previously), but it also wants to get rid of mandatory minimums for nonviolent offenders, and to focus the drug laws back on the kingpins they were intended for.]

Whenever there is some horrific crime in the news, some congressman is going to get up on his hind legs and make a speech, demanding tougher sentencing, more micromanaging of the Guidelines, etc. That goes for politicos from either party. It’s typical pandering, irrational and emotional — exactly what the Sentencing Commission was supposed to insure against.

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What the Commission thinks

Chief Judge Sessions countered that the Sentencing Commission is not beholden to Congress. Yes, he admitted several times that the Commission works far more closely with Congress than with the other two branches of government. Yes, it works “incredibly closely” with Congress, as a matter of fact. But it would be a mistake to treat it as Congress’ lap dog. They’re proud of the fact that, since 1991, pretty much every new criminal law has sought to impose a mandatory minimum, and due to the Commission’s efforts most of those laws have wound up without one.

Unfortunately, the Sentencing Commission is not a big-government utopian agency of wise experts, acting on all kinds of studies from the social sciences. It doesn’t direct policy from an ivory tower built on the bedrock of hard data. It really is beholden to Congress in most important respects. The Commission makes an effort to respond to the concerns of all three branches of government, Sessions said, and they are in fact passing some amendments this year despite Congress. But he had to admit that, for the most part, the Commission responds mostly to the concerns of the legislature.

Sessions had a real problem with the Second Circuit’s move to disregard the child porn guidelines in particular, and the judiciary’s general move towards individual justice rather than compliance with the bright-line Guidelines scheme. Cases that tell judges to disregard congressional policy, he said, are not the best way to get Congress on board with the reforms that have to be made.

[We’d have to disagree here. How else is Congress going to realize what the nation wants? Congress short-sightedly, and incorrectly, assumes that everyone wants to ratchet up sentences. That being perceived as “tough on crime” is what gets votes. But what people want to be tough on is violent crime, against real victims, and maybe some extreme cases of massive economic crime against real people. Nobody wants symbolic measures that destroy lives in disproportionate retaliation for nonviolent offenses. The judiciary’s general rejection of such measures is precisely what the judiciary is there for in the first place, at least since Marbury v. Madison -- to check and balance the excesses of the legislature and the executive. It’s not the judiciary’s job to suck up to Congress, and it’s telling that Sessions seems to think so.]

Sessions reported on a recent massive survey of federal judges, which found that 75% believe that the system as it exists is “the best available” (whatever that means), that the Guidelines are a part of the culture of criminal procedure now (not exactly a shocker), and Booker is being followed. Excepting crack sentences, only 30% thought that drug sentences were too high (everyone seems to think crack is sentenced too harshly). Everyone agrees that mere possession of child porn, rather than creating or distributing it, is punished too severely.

Judges say they need more discretion, particularly at the lower levels of the Guidelines. They want alternatives to incarceration, such as treatment programs, just like the ones the states have been using with great success for 20 years or so.

The Commission also figured out that the criminal history points don’t really reflect the realities of recidivism. They add 2 points for an offense committed within 2 years of release from prison, but there’s no correlation between that and the incorrigibility that’s supposed to be penalized here. So they’re getting rid of that particular calculation later this year. That should result in an average reduction of one year off a whole lot of people’s sentences.

Another point of contention has been whether courts can consider individual characteristics of the offender, in granting a more lenient sentence. Congress put the ixnay on that back in 1987, instructing the Commission to discourage 11 particular factors. Earlier this year, the Commission reinstated 5 of these factors. Courts are now allowed to take into account, once again, such common-sense factors as the age of the offender, his physical condition, his mental health, his emotional condition, and any military service. If any of these are relevant, the court is now permitted to take a downward departure based on such considerations. Judges had wanted to depart, but felt they couldn’t, because the Guidelines said they couldn’t. Now the language has been changed from saying these are categorically “not relevant,” to saying they “may be relevant.”

Also, Zones B and C have been expanded by one level, to give more discretion to judges.

And the Commission is starting to consider the beginnings of drug treatment, and treatment for those with mental health problems. Addictions and disorders that contributed to the offense may perhaps at some time in the future be grounds for a non-prison sentence to deal with the underlying problem instead. [Again, this has been done in the states for a generation already. When we first started with the NYC Special Narcotics Prosecutor’s office in 1997, their DTAP program was well under way, which involved 18 months of inpatient treatment, and 18 months of outpatient treatment, involving getting one’s GED, getting a job, moving out of the crime zone if necessary, getting a bank account, amassing a couple grand in savings, and otherwise figuring out how to get ahead without drugs. Had a 70% success rate, if we recall correctly. We remember being a very young lawyer with grownups sobbing with gratitude at our desk, thanking us for giving them the opportunity. Now it’s systematic, institutionalized in the state’s drug courts. All kinds of states have similar success stories. Why the feds are only now beginning to explore the possibility of maybe someday trying something like that themselves is beyond us.]

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What the Department of Justice thinks

The DOJ was represented by Jonathan Wroblewski, a pretty decent guy. But we have to say we had problems with his approach, as well.

He said the saddest thing is the political dysfunction preventing any progress on the crack/powder issue. The political dialog has changed dramatically, so that everyone feels like they have to argue from extremes, and point fingers at the other party. [We’d say this has been politics as usual since the founding of our republic, but we’re only a historian in our spare time, so what do we know.] But it would take near-unanimity of representatives from both parties to get the change that is needed. And that’s not going to happen so long as people keep demonizing the other side.

Wroblewski said that the constant ratcheting-up of federal sentencing is relieved in practice by the “safety valve” — referring to USSG § 5C1.2, which allows a reduction below mandatory minimums if the defendant has minimal criminal history, and comes clean with everything he knows about the offense and his fellow conspirators. [Oddly enough, in practice this exposes defendants to a whole lot of risk, and gives the feds all kinds of ammo to go after them and their compatriots; and further exposes defendants to prosecution for obstruction if they don’t disclose everything exactly right. It’s not something to be attempted lightly. We think of it less as a “safety valve” than as a “booby trap” or as “cooperation without confidentiality.”]

He participated in a working group on sentencing formed by AG Holder, speaking with all kinds of judges, prosecutors, defense lawyers, victims groups, visiting prisons, etc. During his time with that group, he’d formulated seven observations:

1) The federal sentencing system is fragmenting into two separate systems. One set of judges are following the Guidelines, and another set has lost confidence in the Guidelines and no longer feel any need to follow them.

2) The Guidelines and mandatory minimums still have an important role in our system.

3) Nationwide, the level of sentencing overall hasn’t really changed. It has here in major metropolitan areas [which we’d say are more likely to gain perspective sooner, because the sheer volume of cases accelerates their institutional experience dramatically], but nationwide on average it hasn’t. What he’s seen instead is an increase in sentencing disparities, which is one of the things the Guidelines were supposed to prevent.

4) The federal prison population is growing exponentially. Meanwhile, crime rates are down, in part because more criminals are behind bars. [We have to agree with this conclusion, but wish we didn’t have to lock up so many who aren’t repeat or violent offenders, just to keep the ones who are off the streets.]

5) There is a non-partisan imperative to improve the re-entry of prisoners into society.

6) Across the board, no matter who you speak to, there is little appetite for an overhaul of the system. It would involve too much uncertainty, strain and change. But at the same time, it’s obvious that the system needs to be overhauled.

7) There’s been a lot of litigation, post-Booker, but a lot of it has been needless. [We’re not sure of what he meant by that, frankly.]

In response, the DOJ is now working toward enacting a new crack/powder law, creating initiatives to improve prisoner re-entry, changing the DOJ’s charging policy (so that AUSAs aren’t compelled to charge the highest offense with the most severe sentence, as had been required under Ashcroft), and improving data collection so as to catch injustice and hopefully nip it in the bud.

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A final word

There were several intriguing comments from the other panelists, and also some good questions from the audience. But we’ll leave you with this one bit about prosecutorial discretion.

As you know, state prosecutors (at least those in the better offices) have the discretion to decide for themselves what crimes to charge, what pleas to offer, and what sentences to offer with those pleas. They are expected to use their judgment to act in the interests of justice. They of course are guided by the penal laws, by their supervisors, by office policies and by community standards, but in the end the decision is up to the individual prosecutor.

This is important. Prosecutors are given an enormous amount of power. With great power must come the discretion to use it wisely and justly. Otherwise, it’s just a big freaking hammer to be used without regard to the size of the nail being hit. And discretion is given to be used. Failing, or refusing, to exercise discretion is an abuse of discretion. It’s flatly unethical.

And yet that is precisely the policy of the DOJ when it comes to sentencing. Individual prosecutors, in the words of Mr. Wroblewski, cannot be allowed to decide for themselves what the appropriate outcome ought to be.

DOJ prosecutors have to seek the maximum charge, and pursue the sentence prescribed by the Guidelines for that charge. Once the essential facts are established, there is no wiggle room. Defense counsel can argue the §3553(a) factors, but not the government. Defense counsel can seek a variance, but not the government. (Though later this year there may be some more leeway for the government to seek a variance in certain cases, watch this space for updates.)

The perceived need for consistent application of the law trumps individual justice. The perceived need to carry out the stated policy of the legislature — no matter how irrational it may be, or how inappropriate to this case — trumps individual justice. Bright-line rules take away discretion in favor of uniformity and ease of application, but they also erase the iffy areas that aren’t so clear-cut, or weren’t necessarily intended, resulting in real injustice on the individual level. That’s the entire reason why discretion is necessary, and given, in the first place.

But the DOJ can’t be having with that. After Booker, the idea was floated that the DOJ ought to write up its own guidelines. Just as the Guidelines are now advice, and the defense bar would be giving its advice to the court, the DOJ wanted to have its own policy to advise the court. But having an office policy would lead to each district having its own office policies. The Southern District of New York and the Middle District of Georgia could conceivably have different office policies. That would be chaos. Think how much more disparity there would be if individual prosecutors were able to exercise their own judgment about the appropriate outcome for a case/

To that, we have to repeat that failure to exercise discretion — whether by choice or because the DOJ forbade it — is an abuse of that discretion. It’s unethical. It defeats the whole purpose of granting that discretion. Which defeats the whole purpose of granting such awesome powers to the prosecution.

So if the DOJ (or any other prosecutor’s office, for that matter) is going to preclude its prosecutors from exercising their discretion, then the awesome powers which that discretion is meant to balance must also be taken away. Failing that, there is nothing left but enormous governmental power over the individual without the necessary checks for individual justice.

And that’s just not right.

The past couple of weeks, there’s been some discussion about a recent paper by Adam Gershowitz and Laura Killinger called “The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants”.

The authors argue that prosecutors in large jurisdictions often have “excessive” caseloads, so they don’t have enough time and resources to devote to each case. And injustice results. Rushed and overwhelmed, they fail to spot cases deserving special treatment, such as more lenient pleas or drug-court diversion. They don’t notice Brady evidence favorable to the defense. Weak cases don’t get dismissed. Jammed up caseloads cause delays that make defendants take pleas to time served, just to get out of jail. Nobody has the time to spot innocent people, who wind up getting convicted in the rush.

One of the better posts was by Scott Greenfield yesterday at his blog Simple Justice, where he makes the point that delay is actually a good thing for the defense, thanks to speedy-trial rules. More importantly, he points out that prosecutors actually have the discretion to do what it takes to make their caseloads more manageable. To get rid of cases, they can offer lower pleas, dismiss them, do an ACD/DP, what have you. There are easy options to put a case on hold while investigating whether a defendant is deserving of special treatment.

But we haven’t seen anyone yet make the blazingly obvious point that prosecutors aren’t likely to do any of that if the defense attorney doesn’t bring it up, first.

So we’re going to say it now. We defense attorneys can’t just sit there and hope that the prosecutor does the right thing. We actually have to get off our butts and make a case. Good defense lawyers know this, and much of their advocacy involves convincing the prosecutors to exercise their discretion in the client’s favor. Even the best prosecutor only knows what’s in front of him. He’s made up his mind about what this case is worth, based on the evidence he has. The only way to get him to change his mind is to give him new facts, or a new way to look at the facts.

So if a client might be innocent, and the prosecutor doesn’t realize it, then the defense attorney’s job is to bust his ass to make sure the prosecutor figures it out. Ditto for clients who really deserve a lighter-than-usual sentence, or a creative sentence, or treatment instead of jail. This has nothing to do with prosecutor caseloads, and everything to do with defense counsel. Sorry, but it’s the truth.

Beyond that, we still don’t see much cause-and-effect between prosecutor caseloads and the problems decried by the paper’s authors. That’s just not the problem here. And lowering caseloads or increasing resources won’t fix the real problems.

The best prosecutors do try to screen out the innocent, the weak cases, the special cases. Oddly enough, they are pretty common in some offices with the heaviest caseloads. The worst prosecutors don’t seem to want to exercise their discretion at all, or even recognize that they have been given it for a reason. And they’re common enough in offices with hardly any caseload to speak of. In our experience, prosecutor caseloads have zero effect here. The quality of the individual prosecutor, and the culture of their office, has everything to do with it.

So the trick is to get better, not more, prosecutors. How do you do that?

You don’t really need to pay them more. It’s a government job, so it pays shit. But a good office offers more than pay. It offers prestige. Look at the Manhattan DA’s office, and compare that to its suburban neighbor in Nassau County. Former Manhattan assistants have tremendous prestige, from working in one of the most highly-regarded offices in the country, known for its culture of good judgment and seeking justice above all else, and also known for the best they can get. It’s long been one of the hardest jobs for a lawyer to get, so many highly-qualified grads and laterals want in. And they easily have some of the highest caseloads in the country. Nassau County, on the other hand, has a pretty low caseload, and its office has a reputation for being harsh and inflexible, where assistants are given little or no individual discretion, and those who would exercise their discretion are purged. Oddly enough, it’s not high on the list of where the best and the brightest want to start their careers.

The best prosecutors offices, from the defense point of view (the only view that really counts, if you think about it), are those where individual prosecutors are allowed to use the great discretion that the law has given them. They’ve been given this discretion for a reason: to ensure individual justice. Nobody else in the system has this power to craft the right outcome, no matter what punishment the law might have required. The law is not flexible, and bright lines create injustice. We know this, and that’s why prosecutors are allowed to make plea bargains, dismiss cases, and come up with creative dispositions in the interests of justice.

Naturally, those best offices also hire people who have the judgment and maturity to handle that great discretion. And they weed out those who can’t hack it. Supervisors are there, not to impose decisions from above, but to guide their assistants to the best decision.

It’s not hard to do, and a good culture becomes a self-fulfilling prophecy. The right culture, after a few years, begets a good reputation, attracting the good lawyers. They’ll work there for a lot less money, for a few years at least, getting the experience and prestige they can take back into the private sector. And when they leave, there will be plenty of good lawyers begging to take their place.

So that’s the macro solution. Don’t change the caseloads, change the culture.

And regardless of what kind of office you’re dealing with, the defense attorney has to be the one advocating for the just outcome. We have the burden of showing the prosecution that the facts are different, or that there’s a better way to look at the facts, to convince them to use their discretion in our client’s favor.

Yesterday, the Supreme Court ruled that defense lawyers must advise their immigrant clients that, if they plead guilty, they could get deported. (Read the opinion here, and you can read more about the case here and here.) In a nutshell, Jose Padilla took a plea to selling drugs, and his lawyer told him not to worry about deportation since he’d been a lawful permanent resident for 40 years. That was erroneous advice. Kentucky wouldn’t let Padilla get his plea back, saying this error was about a collateral consequence outside the criminal justice system, so it wasn’t ineffective assistance for Sixth Amendment purposes. The Supreme Court disagreed, saying it absolutely was ineffective assistance. Defense lawyers are duty-bound, as a constitutional matter, to let clients know that pleading guilty could get them deported.

Note that this burden is on the defense counsel, and not on the court. The court does have to advise defendants that they’re giving up their right to a jury trial and all the other things they’re foregoing, but the court doesn’t have to warn about “collateral” consequences of the plea. And deportation is one of a myriad of potential collateral consequences, including losing a driver’s license, or the right to vote, or the ability to hold a particular job, or government benefits. (There are entire books dedicated to listing and describing all the collateral consequences out there.)

But deportation is different. It’s a dramatic life-changer, often more so than incarceration. It affects the now-banished immigrant, but also his family. So somebody ought to mention it to a defendant before he takes a plea and effectively deports himself.

For that reason, since the days of disco the ABA has had standards of conduct for defense lawyers, requiring us to inform our clients fully and accurately about what consequences they might face. See ACA Standards for Criminal Justice, 14-3.2 Comment 75. Some, but not all, states also require it by law. And some states even require judges to do it from the bench as part of the plea colloquy.

But now the Supreme Court has ruled that, as a matter of constitutional law, failure to inform an alien of the risk of deportation is ineffective assistance of counsel. It violates the Sixth Amendment. So the client can take back his plea and go to trial instead.

Great for clients, some defense lawyers may be huffing, but not for us. Now what, are we supposed to master a whole nother specialty of law, and a notoriously byzantine one at that, just so we can do a constitutionally effective job? That would suck!

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Well no, the rule doesn’t suck. We do not have to all of a sudden become experts in immigration law. We do not have to parse the insanities and inanities of that highly complex field. All we have to do is advise our clients that there is a risk of deportation. And we’d better not tell them there is no risk, when there really could be one.

This really is nothing new. It’s what we’re supposed to have been doing all along. For example, look at U.S. v. Couto, a Second Circuit case from 2002. That one held that incorrectly advising one’s client about deportation (as opposed to failing to advise at all) was obviously ineffective assistance of counsel. But it reminded everyone that, when a client is an alien, “counsel and not the court” must advise him of possible deportation. They cited the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289, 323 n. 50 (2001), which pointed out that:

Even if the defendant were not initially aware of [deportation issues], competent defense counsel, following the advice of numerous practice guides, would have advised him concerning the provision’s importance.

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Criminal deportation has a long history in this country. Although it serves a punitive purpose — notably deterrence and incapacitation — it’s not treated as a penal matter. It’s an administrative function of the federal government, which has the authority to regulate aliens and immigration. It’s firmly part of customary international law, a right of nations.

For a long time, though, deportation was reserved for only a few crimes. For a while, it was only used for felonies of “moral turpitude” (a phrase never statutorily defined), and then in 1917 they added anarchy and attempting to overthrow the government (a real problem back then). In 1931 they added drug crimes, but not if the defendant was an addict.

By this time, at the start of the Great Depression, immigration had become a hot-button issue. Importing criminals was no-go, and allowing aliens to remain once they had committed crimes would reduce the public’s confidence in the rightness of immigration. So from this point forward, the number of things one could get deported for grew by leaps and bounds. By 1988, you could get deported for a wide range of violent and non-violent crimes. The number of offenses went through the room with the passage of the AEDPA in 1996.

Between that and the IIRIRA, practically anything can get you deported now. And at the same time there is little to no leeway, mitigation or discretion allowed. Low-level state crimes are enough. Suspended sentences are enough, even if they’re never served. It’s pretty much automatic. There is no release valve, other than finding some plea bargain that doesn’t have deportation consequences.

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Well, that’s hardly a challenge to defense counsel, if you think about it. It’s no different from searching for that elusive federal misdemeanor, when negotiating a federal plea. It’s like searching for a needle in a stack of needles, but it’s not always a fruitless task.

If our job is to get the best outcome for our clients as we can, doesn’t that mean we’re duty-bound to try and find some outcome that won’t result in deportation? And doesn’t that mean we have to at least know what offenses do and do not have immigration consequences?

So it’s hardly a stretch to then inform a client that a particular plea bears a risk of deportation. It’s not a big deal. Nobody should be upset about this. We all ought to have been doing this already.

Monica Conyers arriving at court for sentencing

Former Detroit councilwoman Monica Conyers, the wife of U.S. Representative John Conyers, was sentenced today in federal court on her guilty plea to charges of bribery. The 45-year-old was given 37 months in prison, the top end of the agreed-upon Guidelines range.

Having read the sentencing minutes, we can’t help but think she might have done better if she’d kept her mouth shut. There are some things one does not say during one’s sentencing. She seems not to have gotten the memo, and it may be that others out there don’t know either. So here are some tips:

First, do not imply that the judge is acting improperly, before the judge has even sentenced you. Don’t even hint that the judge is taking things into account that he should not be. For example, it is not a good idea to say “the newspapers have put pressure on you to try to make an example out of me.” Judges do not like to be told they’re committing an impropriety. You do not want to piss off the person who is about to decide your fate.

Seriously, people need to be told this?

Second, do not say it’s unfair that you’re going to jail, when the other people committing crimes with you got less time. If you’ve pled to taking bribes (Conyers admitted taking multiple payments in return for awarding a contract), it doesn’t matter what happened to anybody else. The only consideration is what you did, and what you deserve. So saying “all of the people who were bribing and giving the money, they got zero months, eleven months, and now they want me to go to jail for five years?” — that’s not really going to help you out. All you’re doing is calling the judge unfair to his face. And it’s irrelevant at best.

That leads right to point 3: If you’ve just got done saying you should get the same time as your fellow conspirators, it’s not a good idea to then insist that you’re innocent and your plea was involuntary. Arguing in the alternative, at least in criminal cases, only means both alternatives are wrong. Pick a story and stick with it.

Point 3-A is that you don’t react to sentencing by demanding your plea back. A plea that was negotiated, where you testified under oath that you committed specific conduct, and where there was no actual duress… sorry, you’re not getting it back. Merely being pressured to take a plea doesn’t count. Even being under a colossal amount of pressure isn’t enough. Everyone is under pressure when they take a plea. You weighed the odds, and decided to cut your losses. You don’t get a do-over unless someone else totally overrode your free will, you sincerely did not want to take the plea, under any circumstances, but someone forced you to do it anyway. And you’d better have some real, solid proof of it.

And point 3-B is that you never, never, never, NEVER plead guilty if you are in fact innocent. Do you hear me? NEVER!

Given all the evidence in Conyers’ case, it seems unlikely that she pled guilty despite being actually innocent, and the judge definitely didn’t think so. He’d just finished a trial against one of her fellow conspirators where there was a lot of evidence tending to confirm her guilt here. So her feeble claims of involuntariness here probably only rubbed him the wrong way.

Fourth, if you want the court to go down from the Guidelines, give the judge a reason. Do not simply say “I think that given everything that exists in this case, and I’m not going to elaborate on any of them, I think the court should depart from the guideline range and I think that would be fair.”

You know what? There are a bunch of factors the judge is allowed to consider. Many of them are listed in 18 U.S.C. § 3553. Why not — we dunno — go through them and make arguments for the ones that actually apply? Just saying.

Fifth, if you want a downward departure for accepting responsibility, don’t proclaim your innocence at the last minute.

Sixth, if you want a downward departure for cooperating, you’re actually going to have to give the government something it can use. If all you’re going to tell the feds is stuff that is “conclusory and not firsthand evidence which can be used in a court proceeding,” you’re not going to get any benefit.

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Now there is plenty you can do at sentencing. You can challenge the government’s Guidelines calculations quite often. You can challenge the grounds and calculations for various enhancements. You can argue specific reasons for mitigation, downward departures, and even complete variance from the Guidelines if justice demands they not apply. There is a tremendous amount of room for good advocacy in a federal sentencing. We’ve succeeded in having the Guidelines completely disregarded, in getting judges to agree with us and not the government, so we know it happens.

You just gotta make sure the client gets the memo.

On Sunday, the Philadelphia Inquirer published a lengthy article on that city’s abysmal conviction rate for violent crimes. For every three violent-crime arrests in Philadelphia, only one results in a conviction. There are a lot of worse-sounding statistics in that article, but they’re completely meaningless, as they refer only to convictions of the top count, ignoring the reality of plea bargaining. Still, this meaningful stat, the one-in-three conviction rate, is appalling.

Worse than that, about ten thousand violent arrestees walked, no conviction at all, in 2006 and 2007. Only 8% of that number were found “not guilty” after trial. The remaining 92% walked after their cases were dropped or dismissed.

At the same time, FBI stats show that Philadelphia has the highest violent-crime rate of all the big cities.

Coincidence? Of course not.

Violent-crime defendants aren’t getting convicted, and violent crimes are through the roof. There is causation there.

Conviction rates matter. A low conviction rate means the system is broken. If it was working, the rate would be 70% or higher. 33% = broken. Broken means people are being prosecuted for crimes when they shouldn’t have been charged in the first place. Broken means people aren’t getting punished for their violent crimes. And society suffers both ways.

We blame the prosecutors. More on that in a bit.

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The Philadelphia courts have created a public perception that violent crime will not be punished. The odds of getting convicted are minor, and the odds of taking a felony are even lower. It doesn’t take too long for people to figure that out. And the bulk of crimes are committed by people who have frequent contacts with the criminal justice system. This critical demographic repeatedly experiences that the odds are in their favor. The system keeps reinforcing this perception that, if you commit a violent crime, you’ll probably get away with it.

Perception is everything in this system. In order to prevent crimes from happening, our system relies heavily on the deterrent effect of punishment. Deterrence is important. It doesn’t affect crimes of passion in the heat of the moment, but most crimes involve some planning or forethought, and those are the ones we want to make people think twice before committing. Whether they think twice or not depends on what they think might happen.

If people generally believe that a criminal act will probably result in punishment, then they will generally avoid that behavior. This would be true even if such acts were never actually punished (think of the budget savings, increased productivity, and human value society could preserve if we could devise such a system!). And the converse is true — if every criminal act got punished, but nobody realized it, then all that punishment would have zero deterrent effect.

In general, our system tends to fall somewhere between the two extremes. There is an amorphous sense that people can get caught, and that most of those who do get caught wind up getting punished. This perception results in a general background level of deterrence that’s meaningful.

Most law-abiding folks add a huge layer of deterrence on top of that, arising from the morals and ethics ingrained during their socialization and upbringing. But those folks aren’t the ones the criminal law really cares about. The law isn’t designed to deter them; it’s designed to deter those who would gladly commit such crimes if they didn’t they’d get punished.

Such people come from all walks of life. Sure, there are plenty of thugs from anarchic streets, who couldn’t care less about their victims or the rules. But there are also the spoiled suits who are just the same, caring nothing for their victims and thinking the rules don’t apply to them. For every crime, there are opportunists of every stripe.

And if the system fails to create the right perceptions, opportunists are going to take advantage of the perceived opportunities… obviously.

And that’s what’s happening in Philadelphia, it seems.

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How did it happen? The Inquirer has 6 ideas. We think one or two might even be worth considering.

1) First, the Inquirer says that witness intimidation is working. Witnesses and their families are known to get killed in that city. That scares potential witnesses, who decline to come forward. So cases can’t be proven, and get dismissed or result in minimal plea bargains.

The way we see it, the number of such instances is vanishingly small, but the visceral significance of such instances is dramatic, and so the statistics have a lot more weight than they perhaps deserve.

Regardless, we still have a major problem with this explanation: What are the prosecutors thinking? If you don’t have your witnesses lined up, if you are not in a position to prove your case at trial, you have no business filing charges in the first place. You investigate before charging someone with a crime, not after. It is this blog’s position that any prosecutor who files charges before being able to prove them beyond a reasonable doubt is committing misconduct. The better prosecutors’ offices don’t allow such behavior.

But if the Philly prosecutors are having to get rid of cases because they couldn’t round up any witnesses, that means they were charging these cases prematurely and unethically.

So this “witness intimidation” excuse is really nothing more than a symptom of a deeper problem — that the Philly prosecutors are jumping the gun, and then having to deal with the consequences. And the result of their behavior is a public perception that violent criminals can get away with it. Well done, that DA.

2) The caseload is too high. The judges are too busy, says the Inquirer, so they “put a premium on disposing cases” rather than going to trial.

That’s just nonsense, of course. The vast majority of cases everywhere are disposed of before trial. It’s not the judges who make it happen, either. Defendants agree to plea bargains that cut their losses. Prosecutors agree to plea bargains that result in a fair sentence. And both sides avoid the enormous uncertainty, expense and risks of going to trial.

Plea bargaining does not begin to explain how two-thirds of violent arrestees don’t wind up getting convicted, nor does it explain a public perception that violent criminals are probably going to get away with it.

3) The Inquirer points to the statistic that nearly 10,000 violent-crime defendants had their cases dropped or dismissed in ’06 and ’07.

Again, this means to us that the finger must be pointed squarely at the DA’s office. What the heck are they doing, charging 10,000 people with crimes they couldn’t prove? Cases get dropped or dismissed because they shouldn’t have been charged in the first place. This statistic shows an appalling lack of judgment on the part of the Philly prosecutors.

What are they doing, just charging everyone who got arrested? Perhaps. It’s a sad fact that there are some DA’s offices out there who think it’s their job to zealously advocate for the conviction of everyone who got arrested. But of course that is not only not their job, it’s unethical for them to behave that way.

Prosecutors are given enormous power and discretion, and it is an abuse of that discretion not to exercise it in the first place. They’re supposed to first figure out whether the case should and could be prosecuted, before wasting time and treasure on a pointless case, and dragging people through a horrific process. And they’re certainly not supposed to delegate their discretion to the police, who have neither the authority nor the purpose to exercise it. But those DA’s offices that simply take on every arrest are doing precisely that.

Maybe instead they’re just charging people without proof, in the hopes of getting a plea bargain, and hope nobody calls their bluff. That’s nothing short of criminal extortion, if true.

It should be nigh impossible to dismiss a case, unless there is newly-discovered evidence, or the interests of justice demand mercy. Otherwise, there ought to have been enough evidence to take the case to trial before charges were ever filed. This staggering statistic demonstrates that the DA’s office is charging thousands of people with crimes, when they had no business doing so.

4) The Inquirer says the DA’s office doesn’t track how well or how poorly its cases fare, and as a result cannot prioritize the work of its 300 prosecutors.

That’s sort of irrelevant, really. 300 prosecutors is plenty. The Manhattan DA handles way more cases, and better, with not many more ADAs.

And prioritizing who’s working on what isn’t really something the stats ought to affect. A significant number of losses and dismissals are an indicator that a particular prosecutor might need to be reassigned, but wins and losses don’t affect where you focus your manpower. It’s really just a supply-and-demand thing — put the bodies where they’re needed, that’s all.

5) Philadelphia’s courts are uncoordinated. The basic logistics of getting the parties and witnesses together for trial becomes a disorganized fustercluck of delay. Eventually, cases just collapse because they can never be brought to trial. Defense attorneys know this, and take advantage of it.

We can’t speak to how things work in Philly, having never practiced there. But this doesn’t sound too much different from state court in New York. Unlike federal court, where your trial date is your trial date, NY state courts just set date after date until by lucky chance everyone is ready to go at the same time. It’s pointless and inefficient as hell, but it doesn’t seem to be a huge problem. Most cases get there sooner or later. (Our magic number is usually 5 — if we’ve answered ready four times, it’ll usually go on the fifth. YMMV.)

Getting the cops to show up is a hassle for state prosecutors everywhere. Cops think they’re job is done when they made the arrest, court keeps them from making more arrests, and they don’t like being cross-examined any more than the next fellow. But that’s a simple fact of life everywhere, and doesn’t explain why Philly’s any different. Ditto for herding cats and witnesses. And ditto for defense attorneys who take advantage of the government’s inability to get its act together. It happens everywhere. It’s really irrelevant here.

6) Finally, the Inquirer says the courts aren’t enforcing bail. “Defendants skip courts with impunity,” so that there are nearly 47,000 fugitives in that town. “Impunity” means they never forfeit their bail. The city courts estimate “a staggering $1 billion” in supposedly forfeited bail remains uncollected. Fugitives don’t get convicted, because they’re not in court.

That is appalling. The whole point of bail is to ensure a defendant comes back to court, by holding his money hostage. The defendant puts up his cash or gets a loan from a bondsman. If the defendant doesn’t show up when he’s supposed to, he loses his cash or the collateral for the bond.

But if the defendant never forfeits his bail, then bail serves no purpose.

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Whatever the reason, the conviction rate in Philly is so low as to be counterproductive. The DA’s office is acting in ways that increase, rather than decrease, the incentives to commit crimes.

People are being chewed up by the criminal justice machine when they never should have been charged in the first place. Not all of them got dismissed or acquitted. Who knows how many more went through it and went to jail? And criminals are committing more crimes with impunity. Everyone suffers.

This low conviction rate is merely a symptom of a deeper illness. The DA’s office is charging people when it shouldn’t be. It’s either jumping the gun before enough evidence is in, or it’s abusing its discretion and taking on every single arrest, or it’s trying to extort pleas. From the evidence in this article, it looks like the DA’s office is the disease at the root of it all.

There’s going to be a new DA there in January. We’ll see if he does anything about it. In the meantime, on the whole, we’d rather not be in Philadelphia.