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Rolling the dice for your client

I'm wondering whether I should have just told Rico to take the case to trial. 

There was a lot at stake.  Rico, the police claimed, shot at some guy.  Rico was charged with attempted murder and felonious assault, both of which carried three year gun specs.  They'd merge, but that still meant that conviction of either of those offenses and the spec would mean a minimum of five or six years in prison.

But the case was garbage.  The physical evidence didn't match up with the victim's account.  The "victim" has been convicted of four drug charges, two of them trafficking.  His girlfriend claimed to be a witness, but she originally told the police that she had pulled into a neighboring driveway, from which she couldn't have seen anything.  There were two independent witnesses, but all they saw was a bunch of shooting, and from the way the report reads, it may have been the "victim" who was doing the shooting.

The deal was a plea to a count of attempted felonious assault, a third-degree felony, with no specs.  Rico had spent five months in jail already, and had only a couple prior misdemeanors.  Both of his brothers had been murdered, and he gave the prosecutor information on those cases; the prosecutor was going to come in and make a pitch for him.  And we had a good judge, so I was about as confident as I could be that Rico would get paper.

So what do I tell Rico?

And, depending on what I tell him, have I rendered ineffective assistance of counsel?

The latter question is prompted by the Supreme Court's decision last year in Lafler v. Cooper.  Cooper was charged with attempted murder, but was offered a deal to plead to six years.  His lawyer told Cooper to reject the plea, telling him he couldn't be convicted of attempted murder because his victim had been shot below the waist.  It sounds like something our clients would tell us -- "Hey, they can't convict me, I only shot him the ass!" -- and when Cooper was convicted and sentenced to three times what he would've gotten on the plea, he had little trouble persuading the courts that he'd been the victim of bad legal advice.  In fact, the State didn't even challenge the first Strickland prong, that the lawyer's performance had been deficient; they simply argued that since Cooper had a fair trial, his attorney's sins didn't prejudice him.

The Court didn't buy that, and that's significant, but the decision left open a host of questions, mainly over what might constitute ineffective assistance in plea bargaining.  The stipulation that the attorney's performance was deficient precluded the Court from defining that further.  Obviously, a gross error of law is sufficient, but what if I make a gross error in evaluating the factual aspects of the case?  If a case goes to trial, the defendant is convicted, and an appellate court subsequently determines that the evidence was "overwhelming," does that open the possibility of the defendant claiming that the attorney goofed by advising him to go to trial?  And how do you resolve a dispute as to what the attorney's advice was in such a situation?  (Keep in mind that the "Frye hearing"  -- the hearing trial courts frequently conduct anymore to ensure that the defendant is aware of the plea offer -- doesn't help there; the court can find out whether the defendant is going to plead, but it can't ask him what his attorney's advice was on that question.)

I thought that Burt v. Titlow would offer the Court an opportunity to clarify the issue.  Titlow had pled guilty in a murder case and agreed to testify against the co-defendant, in return for a 7 - 15 year sentence.  Three days before trial, Titlow hired Fred Toca as her new attorney, and he had her withdraw her plea.  She was tried, convicted, and sentenced to 20 - 40 years in prison, and claimed that Toca had misadvised her by telling her to withdraw her plea. 

But as I explained after oral argument and when the decision came down last week, the case was too messy to allow any clear determination of that issue.  Most of the problem was due to it coming up on habeas relief.  In habeas claims alleging ineffective assistance at trial, the Federal courts are supposed to be "doubly deferential":  deferential toward the state court findings, and toward the attorney's performance.  Titlow couldn't overcome that. 

Nonetheless, some definition of the lawyer's duties crept into the discussion, mainly in Sotomayor's concurring opinion.  According to her, regardless of what the client says about her guilt or innocence, "her counsel must make an independent examination of the facts, circumstances, pleadings and laws involved and then offer his informed opinion as to what plea should be entered."  While "a defendant possesses the ultimate authority to determine her plea," the lawyer must abide by that decision "only after having provided the client with competent and fully informed advice, including an analysis of the risks that the client would face in proceeding to trial."

I've emphasized that last portion, because I believe it points to the problem.  The decision to plead is our client's, and we're supposed to provide him with the information to allow him to make an informed one, but we don't have perfect information.  We usually don't know exactly what the judge is going to do at sentencing on a plea.  Our information about the outcome of a trial is even less:  we don't who's going to be on the jury, we don't know how the witnesses are going come across.  What do I tell Rico?  That he has a "good chance" of being acquitted?  That he'd "probably" be acquitted?  A 75% chance of being acquitted?  And the client is going to hear what he wants to hear, anyway.  You tell a client that the judge said he's a "good candidate" for probation, what he hears is that he's getting probation.  You tell a client that he'll probably be acquitted, I guarantee he's going to blame you if he isn't.

So I left it up to Rico, and he decided he just wanted to get out of jail as quickly as possible.

I'm pretty sure I did the safe thing.  I'm not so sure it was the right thing.

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