Who's in charge?
I had a seminar last Friday, which included an hour of ethics. It was one of those "interactive" seminars, where instead of droning on, the lecturer posed hypotheticals for the audience to respond to. That can prove disastrous in certain situations, but this wasn't one of them. The audience was engaged, the speaker was very good, and the hypotheticals were quite interesting. One involved doing post-conviction relief on a death penalty case, digging into whether the trial lawyers competently examined and presented mitigating evidence, and your client tells you under no circumstances do you talk to his mother. That's a no-brainer; death penalty work is a whole 'nuther animal, and you leave no stone unturned, regardless of what your client wants. (It might have been more interesting if the hypothetical had been that you're the trial lawyer, you think the mother might have evidence relating to an alibi, and your client forbids you to talk to her.)
The last hypothetical, though, was what you do if you think you can get an instruction on a lesser-included offense, and your client doesn't want you to pursue that. The answer to that, it became clear, depends on what you envision is your role as a defense attorney.
One way of looking at it is that there's the Big Three, and there's everything else. Under the disciplinary rules, a client has sole authority to determine whether to plead, whether to try the case to a judge or a jury, and whether to testify. You can implore, cajole, even intimidate, and it's still your client's call. Everything else is in your bailiwick. You're not going to pay any more attention to your client's opinions on whether to ask for a charge-down to a lesser included than you would ask for his opinions on how to handle voir dire or closing argument.
Several lawyers there were strong advocates of the Big Three, Then Me philosophy. "If he wants to go law school for three years, that's fine, but until then, I'm going to make that call," said one. Another opined that the real issue was "client control." "Judges know the lawyers who can control their clients," he said. The speaker rightly rejected this as an attempt at evading the issue: of course you don't have these kinds of problems if you assume that you always get your client to agree with you.
I'm not a big believer in the philosophy that I'm in control of everything but the Big Three. Sure, when it gets down to trial tactics, and even strategy, I'm not going to be asking for his input on how I'm going to cross-examine a particular witness, or what my theory of the case is going to be. But I've always regarded my role on the major issues to be an informational one: My job is to provide my client with as much information as I can, so he can make an intelligent choice among his options.
Of course, that doesn't always work. There are some people who simply are very poor at making good decisions in life, and criminal defendants are vastly over-represented in that group. Any criminal defense lawyer can tell you about cases that never should have gone to trial, but did because of the client's bull-headedness. The results of that usually aren't pretty. I got assigned an appeal just last week of a client who had withdrawn her plea to a third degree felony, and then gone to trial. She got convicted of aggravated robbery with a three-year gun spec, and is doing thirteen years.
Still, I remember overhearing a lawyer trying to sell a plea bargain years ago over at the Justice Center. "It's a great deal," he told his client. "Yeah?" said the defendant, unimpressed. "If it's such a great deal, why don't you do the time?"
That's something we sometimes forget: regardless of our investment of time, effort, and even emotion in a case, it's the client who still has to deal with the consequences. Regardless of what happens, I get to walk back to my office when the case is over. I thought about that when I read the 8th District's cases last week, and came across Joanne Schneider's. As I explained yesterday, Schneider had bilked 1700 people out of about $60 million dollars, the second biggest securities fraud case in Ohio history. Her three-year sentence got reversed last year when the everyone belatedly realized that she'd pled to an offense that carried a mandatory ten years, and last week the 8th reversed again because the new trial judge had refused to let Schneider withdraw her plea on remand. There were some defense attorneys I know who argued that withdrawing the plea wasn't a good idea, since Schneider was now in front of a judge who could easily give her consecutive sentences totaling substantially more than ten years if she went to trial. But for some clients, a sentence isn't simply a linear spectrum from zero to whatever; for some, going to prison at all is what's to be avoided, and if that can't be accomplished, it doesn't much matter whether it's two years or five. To Schneider, who's 69, there's probably not much difference between getting out of prison in ten years and never getting out at all.
So what do I tell my client about the lesser included? Yeah, you have to go to law school for three years to decide whether you're entitled to a charge on one, but you don't need law school to figure out how it will affect you. Maybe it's simple: you've got a 50-50 chance of acquittal. If it comes up tails, you lose, you'll do ten years. If the jury gets a charge on a lesser-included, your chances of getting convicted of the greater offense go down to near zero, but you've got a 70% chance of being convicted of the lesser, in which case you'll do three years. Sometimes -- usually -- it's not that cut-and-dried, and I may lean, and lean hard, one way or the other. But ultimately, it's the client's call.
Oh, one more thing: if a judge tells you that he thinks you've got "good client control," don't take it as a compliment. What he means is that he can count on you to always get your client to plead out.