Closing the deal
For somebody who's supposed to be a smart lawyer, I can be really dumb at times.
So I've got a client we'll call Brian, and he's got a case from the file drawer labeled Drug Deal Gone Bad. The prosecutor concurs: the alleged victim was trying to sell some weed. His story is that for his troubles, my guy clubbed him with a gun and the gun went off, leaving Dealer Boy with a bullet wound to the head. Not a bad one, as those things go, but then there aren't a whole lot of good bullet wounds to the head, you'd figure. (Timeout here: what's with robbing a marijuana dealer? Isn't that like shoplifting at the Dollar Store?)
Is it a triable case? Sure. Drug dealers who get robbed aren't likely to move the Jury Sympathy Needle into the red. But Brian's undoing is that while he had the right to remain silent, he didn't have the ability. From the police report: "Police completed a gun shot residue test for Brian, during which he made several spontaneous statements of "Is that a gun shot residue? I'm fucked, right? How do you get it off? I heard if you pee on your hands."
He apparently wasn't the only one to subscribe to the latter theory; a quick Google search ("gun shot residue pee on hands," for those keeping score at home) produced the following story:
A man in a police interrogation room to be questioned about a murder was caught on video urinating on his hands to wash away gunshot residue, prosecutors alleged Thursday.
Interesting take on a charge of "tampering with evidence."
So I've got some problems with the case, and we're in front of a judge who is likely to be tough with the stick. The prosecutor isn't offering me much in the way of a deal: a second degree felony, but she's sticking with the three-gun spec.
Then we catch a break: the judge has to take some time off, and another judge takes her place, and that's taken about two or three years off Brian's potential sentence. As I've mentioned before, discussing a plea is the most challenging aspect of representing a criminal client. And Rule Number 1 is be honest. You can tell a client that this is what you anticipate happening, based on your experience, but just make sure to let him know that it's only a guess, not a promise. About the only thing I can tell Brian is that he's likely to get a better sentence on a plea with this judge than with the other one. Not the new judge is soft; it's all relative.
Brian climbs aboard, and we're already to do the plea last week, but then the judge brings up the issue of restitution for medical bills. It's a pointless subject, as we all recognize, because whatever Brian gets for churning out license plates isn't going to make much of a dent in any medical bill I've seen in recent times, "recent times" meaning when doctors stopped using leeches to halt bleeding. The victim does have insurance, and there's no restitution on that, but the prosecutor doesn't know how much he's spent out of pocket. The judge says we need that figure to proceed with the sentencing.
Here's what the smart lawyer says when the judge indicates that she'll kick the case for a week to let the prosecutor come up with a restitution figure. "How about we do the plea now, judge, and we can come back for the sentencing next week?"
Why does the smart lawyer say that? Because the smart lawyer knows that if you do the plea right then, it's done. Sure, Brian may have some second thoughts about the deal between now and sentencing, but if you've read this blog over the years and the cases about the law on withdrawing pleas, you know he's got a better chance of getting a governor's pardon than of getting the judge to let him back off of a plea.
The smart lawyer also knows that his client will have access to probably dozens of people who are smarter than the smart lawyer is. Or at least, the client will think they are; that the person giving him advice on this case hasn't had a steady job in ten years or is wearing an orange jumpsuit with "Cuyahoga County Jail" embroidered on the back will not in the least diminish their credentials. And he will spend that week listening to what a crappy deal you got for him, and various friends, relatives, and inmates telling him that they "know a guy" who did only two years for shooting seventeen people or who got probation for raping three women.
So instead of saying, "How about we do the plea now, judge, and we can come back for the sentencing next week," I looked at my calendar and said, "Okay, that works for me." And you know how the story ends. There we are, standing there at the podium with the judge announcing the case on the record, when Brian leans over and whispers to me that he's not going to plead. So in a month or so I get to go back and try the case.
Well, at least I know one question I'm going to ask on cross-examination. "Officer, is it true that you can beat a gun shot residue test by peeing on your hands?"