Being Found Guilty After Pleading Guilty

If you plead guilty, there is a 100% chance that you will be found guilty. Or something like that. I read that on the Internet a few weeks ago and, while I can’t remember who said it for attribution, I had the opportunity to use this clever little phrase just the other day. It is what you tell a client who wants to plead guilty when you think the case should go to trial.

This was rarely a problem when I represented indigent defendants in Philadelphia. In fact, public defenders often have the opposite problem: clients with miserable cases and a good plea offer on the table who nevertheless insist on trial.

Sometimes it is a lack of sophistication: a client may have a crazy theory he is convinced is going to carry the day. For example, the police officer never read me my rights. Or the police officer got the cross-street wrong on his report. This will prove he is a liar. Or my favorite: I pled guilty every other time I was arrested. The judge or jury will be convinced I am innocent this time since I want to fight the charge.

Other times it is a lack of trust in the lawyer appointed to represent them. You work for the government and you want to see me go down on these charges. Or: It is easier for you if I just take this plea.

Occasionally, in a variation of the insufficient evidence defense, it is indignation at being charged with an offense. Yeah, I took the car or sold the drugs. But they don’t know that for sure. How will they ever be able to prove it? Besides, they don’t have any physical evidence. How can I be convicted of something based on a police officer’s simple say-so?

And sometimes – it is hard to say just how often – it is a sincere belief in actual innocence.

Given the distrust, I learned early on when dealing with indigent defendants not to lead with the recommendation of a guilty plea even when I firmly believed such a plea was in the client’s best interests. I would begin with a discussion of a plan of action for taking the case to trial. I would lay out what I believed were the strengths and weaknesses of the case. Only after we had covered all these things would I relay the government’s offer for a plea agreement, doing my best not to appear personally invested in any particular course of action.

This is simple psychology. It is also that we never really know. Trials are remarkably unpredictable. What you may believe is a strong case can go awfully wrong no matter how well-prepared you are. You can also win trials you were convinced you would lose. Witnesses fail to show up. Or they get rattled on the stand and change their testimony.

In my experience, people rarely regret having exercised their constitutional right to a trial. Even defendants who receive a harsher punishment as a result of the trial – the dreaded “trial tax” — seem to feel better about it. They have had their day in court. They have been heard. They need never suffer the “what ifs” I have heard from so many clients who took the deal. There is no grimmer face than that of someone who has just pled guilty.

If I have had problems getting indigent defendants to accept a plea offer even when I firmly believed it was the right thing to do, I have sometimes had the opposite problem with retained clients and court-appointed juveniles. Thus, my use of the “100% of people who plead guilty are found guilty” phrase from above.

Retained clients tend to take the advice of the lawyer they hired. They trust you. They believe you actually know what you are doing. But they are often more reluctant to roll the dice at trial. I don’t want to go to jail, they say. I just want to plead guilty and move on with my life. I just want to put this whole thing behind me. Note to client: Pleading guilty is not putting this whole thing behind you. Getting probation is not beating the case.

I have experimented with a tiered fee structure in which I charge one fee for negotiating a non-trial disposition, such as a diversion program or guilty plea, and then an additional fee if the case eventually goes to trial. But I am always reluctant to do this. A decision to take a case to trial should depend on: (1) the strength of the case and (2) the client’s tolerance for risk. Financial considerations – “I don’t want to pay the extra fee for trial” – shouldn’t enter into it. I often offer to waive my fee if I feel that the client is being unduly influenced by this consideration. Unfortunately for me, some clients take me up on this offer.

The decision-making in a court-appointed juvenile case represents yet another dynamic. Like retained clients, juveniles tend to trust the lawyer’s recommendation. Just tell me what I should do and I’ll do it. And like all clients, they can sometimes make decisions for the wrong reasons. Which course of action, for example, will require the fewest court appearances?

There is also a much greater incentive for a juvenile to take a case to trial. For one thing, the worst that can happen to a juvenile is that he/she is held in custody until the age of 21. More importantly, judges in juvenile cases – in D.C. at least — are much more concerned about care and rehabilitation than about any notions of retribution.

As a result, there is much less likelihood that the judge will punish a juvenile for putting the government’s case to the test. As I often tell juvenile clients, usually as a way to inspire them to fulfill all pre-trial release conditions, the judge can find you guilty of murder and still send you home with your mother that very day if the judge believes that you have your act together. Conversely, you can be found guilty of a petty offense and still spend the time until you are 21 in custody if the judge believes that is what you need. In other words, I can help you out with the legal aspects of your case but whether or not you go home after the case is over is entirely up to you. In other words, we really have nothing to lose by taking this case to trial.