Public Defenders Play the Race Card

I just finished an article on Slate with the headline “When Race Tips the Scales in Plea Bargaining.”  It discusses a study out of Loyola Law school that

analyzed 30,807 misdemeanor cases in Wisconsin over a seven-year period and found that white people facing misdemeanor charges were more than 74 percent more likely than black people to have all charges carrying potential prison time dropped, dismissed, or reduced. And white people with no criminal history were substantially more likely to have charges reduced than black people who had no criminal history.

The authors did not consider the obvious: that relative poverty might cause this outcome.  In California, people of color are less wealthy.  If you wealthy, you are more likely to afford a lawyer who can negotiate these benefits.  They wealthy can bail themselves out and fight the case, eventually securing a better deal.  If people of color tend to be less wealthy, they may be unable to afford to fight as hard, and thus may get a worse deal.  There may be other explanations. Do the two groups commit the same crimes at the same rates? Consider a hypothetical: one group commits only driving without a license misdemeanors, while the other commits only domestic violence misdemeanors. You would not expect similar jail commitment rates for these two groups. The authors don’t consider whether different patterns of offending account for the different outcomes. The authors don’t consider geographical differences. Is the law more lenient in the suburbs than urban centers? In the south than the north? The list of alternate explanations could go on and on.

But the authors, without an explanation, go right to “prosecutors are racist” as an explanation.  That’s lazy, inaccurate, and offensive to well-meaning public servants. Prosecutors are like any other profession, there are good and bad people. In my experience, prosecutors as a group far exceed other lawyers in their honesty and ethical conduct. And they show a lot of patience in the face of nonsense muckraking like this, both inside and outside of courtroom.

Also, the incoherent authors appear to partially blame bail, but don’t explain how the race-neutral bail system fits their “prosecutors are racist” theory.  Is it bail that’s causing this?  Or racist prosecutors?  The authors can’t decide.  They just know that prosecutors “destroy livelihoods, and tear families apart” “destroy communities of color” and “devastate low-income communities.”  Not criminals; prosecutors are to blame.  Who thinks like this?  More stupidity: the study found disparities in Wisconsin, therefore “New York must eliminate money bail.”  What?

I just hate-read this again before finishing up and noticed this was written by public defenders.  Assuming they believe in their work, their agenda is clear. Not all public defenders make dumb, incoherent arguments.  Not all public defenders are quick to accuse the other side of racism.  But it seems like these two are a great example of everything that’s wrong with the defense bar.

Perils of Plea Bargaining

“Justice and liberty are not the subjects of bargaining and barter.”  (Shelton v. United States (5th Cir. 1957) 246 F.2d 571, 579.)  This noble statement is simply not true: 90% of all convictions in the United States are obtained by plea bargain, rather than by trial.  The system of plea bargaining, therefore, has almost overwhelmed the system of trial by jury, and we must be constantly aware of how it may go wrong.  Specifically, we should guard against conflicts of interest on the part of the lawyers that my produce unjust outcomes for victims and defendants.

Lawyers’ self-interest can skew the outcomes of plea bargaining.  On the defense side, a public defender may be, and in some places always is, overworked.  A new case may come in for arraignment that would contribute significantly to the attorney’s workload.  In that situation, the defense attorney may recommend a quick plea bargain to dispose of the case.  This might not even be a bad thing.  When the public defender is dumping this case in order to focus on her more significant cases, the defendant in those significant cases may benefit.  In this way, the public defender is exercising something like prosecutorial discretion.  It is not controversial, after all, for a prosecutor to refuse to file a relatively unimportant case because her energies are already spent on other more important cases.  Defense lawyers do not have this formal power, but if they are willing to accept bad plea deals, they have this power in practice.  I have even seen this in action, especially in misdemeanor courts.  In this situation, the defendant loses his right to aggressive representation on his behalf.

Prosecutors, in turn, may be motivated to make unnecessarily lenient plea offers.  Even the best criminal code is written in general language, and there are often problems in application to individual cases.  As Albert W. Alschuler has said, “individual prosecutors may be influenced […] by a desire to smooth out the irrationalities of the criminal code.”  (Alschuler, The Prosecutor’s Role in Plea Bargaining (1968) 36 U. Chi. L.Rev. 50, 71-79.)  Prosecutors may be faced with weak cases that they still believe in.  For example, if a prosecutor believes she can prove a case beyond a reasonable doubt but feels that it is very unlikely, she may plea bargain to ensure a conviction, regardless of whether the punishment is too lenient.  Better something than nothing, after all.  Prosecutors may plea bargain to avoid harsh minimum sentences.  They may also plea bargain to protect victims who do not wish to testify.  None of these motivations would constitute a conflict of interest.

But there are other, less reputable reasons why prosecutors may plea bargain where conflict of interest rears its ugly head.  Prosecutors are often evaluated on their performance by looking at their trial statistics.  More guilty verdicts are better, obviously, than hung juries or acquittals.  Ambitious prosecutors, and we are all ambitious, pay attention to this record more than any other measure of performance.  When a difficult case comes along, this type of evaluation puts prosecutors in a tough position.  The prosecutor may feel that the defendant deserves a particular sentence.  Let’s say 20 years, for example.  But she knows that the case is difficult to prove, and that juries are unpredictable.  If the defendant is willing to take 10 years, a prosecutor may be tempted to agree to this to preserve her trial record.  After all, if she takes the case to trial because she doesn’t feel that 10 years is a punishment that fits the crime, she risks a loss on her record.  A loss that would be held against her when her performance is evaluated.  How much more important is justice (that the punishment fit the crime) than the prosecutor’s career?  It’s a question that shouldn’t have to be asked, but that I’m sure is asked all the time.

The problem of conflict of interest during plea bargaining is particularly acute with private defense attorneys.  It may even be in a private defense attorney’s self-interest to recommend rejection of a favorable plea agreement.  For example, if a private defense attorney bills by the hour, his economic self-interest would be to spend as many hours on the case as possible.  A favorable offer at the beginning of the case would nip that opportunity in the bud.  A private defense lawyer may run into the same problem if they are charging by the motion, if they are able to charge more for a writ, for a habeas corpus proceeding, or to handle an appeal.  Private lawyers may even want the practice of conducting a trial, to improve their trial skills, regardless of the potential consequences for their clients.  On the other hand, many private attorneys are paid a flat fee to take a criminal case, regardless of whether they dispose of it quickly or take it to trial.  It’s much easier to take the fee and take the plea than to prepare a complex trial.

Plea bargaining will continue until more lawyers are hired or less cases are filed.  Many people feel that the current situation cries out for reform.  When someone’s freedom is at state, it pays to do things right.

A Bad Deal

There didn’t seem to be anything out of the ordinary when we first looked at the student interviewing with us for a law clerk position.  He a pale, skinny man in his late 20s at the top of his class at a local law school.  The interview was pretty normal until the very end, when our candidate asked about the background check he would have to pass if he were hired on.  We explained that misdemeanor criminal convictions, like DUIs would probably not disqualify him.  He said that he had a DUI, but that it was a felony.  Neither my coworker nor I were very sophisticated about employment law; neither of us asked any follow up questions, probably on the assumption that we didn’t want to know more.  Felony DUIs in California happen under two circumstances.  Either you get three misdemeanor DUIs and your fourth is a felony, or your DUI causes someone injury.  But in the moment, neither of us though about it much: we figured he would either pass a background check or he wouldn’t.

Later in the interview, the candidate mentioned that he worked for a non-profit expunging convictions.  This brought me back to his question about our background check, so I asked him why he didn’t expunge his own conviction.  He said that he looked into it but the best he could do was a certificate of rehabilitation.  He said that you cannot get a conviction expunged if you did a certain amount of time in state prison.  We were shocked that this candidate would have gone to state prison on a DUI.  We asked him about that, and he said that the DA made him a bad deal.  We thanked him for his time and finished the interview.

But something about what happened was stuck in my mind.  We talked it over with another prosecutor, a ten year veteran, after the interview.  As we were relating the story, and the candidate’s strange answers, a look of recognition seemed to come over his face.  He asked, “what’s this guy’s last name?”  We told him.  “I know that guy!  I remember that guy!”  Ten years ago, when this prosecutor was new, he was assigned to a preliminary hearing department and actually handled this candidate’s case.  We looked it up  in the computer, and he was right.  And what was even more extraordinary was that our colleague remembered the facts.

The candidate had a drinking problem when he was a younger man.  Ten years ago, even before he was legal drinking age, the candidate had driven drunk.  He crashed his car into a house.  The car entered the bedroom window of the house and landed on the bed.  The bed was not empty.  The car crushed a person lying in the bed, breaking their back.  The candidate, instead of remaining at the scene and aiding the victim, fled.  He didn’t even call 911 to let them know that an ambulance was needed.  When he returned home, he saw his father, who suspected that something was up.  He asked his son if anything had happened, and the candidate drunkenly mumbled that he had crashed his car.  His father feared the worst, and went out to look for his son’s crashed vehicle.  He found it crashed into a house.  The father approached the police and told them that the vehicle belonged to his son.

Later, in court, the father changed his mind.  He hired a lawyer for his son, who rejected the people’s offer of 16 months at an early hearing.  The father said he regretted ever cooperating.  They did the preliminary hearing, which was held to answer, and then asked for the early offer again.  The DA refused.  The candidate ended up pleading to high term on a DUI with injury, with the agreement that the DA would strike the punishment for the great bodily injury enhancement.  He was sentenced to three years, and did about half of it.

Go Ahead And Threaten Me

Defense lawyers are often extremely interested in whether the prosecution has all their witnesses.  They will often base their legal strategy around whether they believe the witnesses will cooperate.  For example, in a domestic violence prosecution, the two sides may confer at the beginning of the hearing.  “What do you want to do?” the prosecutor will ask.  “Do you have your witnesses?” the defense counsel will respond.  If the witnesses are there, the defense may plea, but if they are not there, the defense has less of an incentive to come to a negotiated disposition.  In fact, the defense may be hoping and praying that the People’s witnesses are uncooperative, as it may represent their only realistic hope of a dismissal.

I have wondered how prosecutors should handle this situation.  The defense’s gamesmanship bothers me, and seems unjust.  If the defendant is guilty and looking to admit his guilt, he should accept the punishment he thinks is fair.  This fair punishment should not depend on the strength of the prosecution’s case.  Should prosecutors tell defense counsel what their witness status is?  Should they refuse to answer questions about their witnesses?  Is it ethical to bluff?

The answer to the last question, at least, seems clear.  The Business and Professions Code says that “[a]n attorney must employ, for the purpose of maintaining the causes confided to the attorney, only those means that are consistent with truth.  (Bus. & Prof. Code § 6068(d).  For example, an attorney cannot continue to represent someone who intends to commit perjury.  (See Nix v. Whiteside (1986) 475 U.S. 157.)  Although this section of the Code doesn’t seem to be intended to apply to plea bargaining, it does point to the larger issue: bluffing doesn’t seem to be “consistent with truth.”  Criminal prosecutions are not poker games, at least not for prosecutors.  The defense bar, on the other hand, seems to have no problem with acting like the courtroom is the wild west.  The unfairness of the double standard applied to each side is glaring, and manifests itself in all sorts of ways.

If a prosecutor does not read the Business and Professions Code the way I do, and does bluff about his witness status, what may happen?  Specifically, can a defense lawyer threaten to report her to the bar?  The California Rules of Professional Conduct address threats in civil disputes:

(A) A member shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.

(B) As used in paragraph (A) of this rule, the term “administrative charges” means the filing or lodging of a complaint with a federal, state, or local governmental entity which may order or recommend the loss or suspension of a license, or may impose or recommend the imposition of a fine, pecuniary sanction, or other sanction of a quasi-criminal nature but does not include filing charges with an administrative entity required by law as a condition precedent to maintaining a civil action.

(C) As used in paragraph (A) of this rule, the term “civil dispute” means a controversy or potential controversy over the rights and duties of two or more parties under civil law, whether or not an action has been commenced, and includes an administrative proceeding of a quasi-civil nature pending before a federal, state, or local governmental entity.

(Cal. R. Prof. Conduct 5-100 [Threatening Criminal, Administrative, or Disciplinary Charges].)

This rule, on its face, seems to apply only to civil disputes and not to criminal prosecutions.  The phrase, “civil action” is specifically defined in the rule.  So it seems like a criminal defense lawyer can threaten to report the bluffing prosecutor to the state bar.  And it seems like prosecutors can threaten defense counsel with criminal, administrative, or disciplinary charges.

Why are threats allowed in criminal disputes but not in civil disputes?  I took a very cursory look at this issue and I can’t find an easy answer.  It would seem to me that the rule against threats in civil court is intended to keep both sides acting in a professional way.  Why don’t we want the same professionalism on the criminal side?  Threatening to have someone disbarred never helps the justice system arrive at the truth: it only leads to tension and acrimony.  I think Rule 5-100 should be expanded to include criminal actions.