The understandable uproar over Brian Bank’s five year imprisonment for a rape he never committed has focused public attention on the wrenching situation where a criminal defense attorney feels he must counsel an innocent client to plead guilty (or no contest, in Banks’ case) when the only alternative appears to be conviction at trial and a harsher sentence. Banks’ attorney persuaded him that five years for a crime he didn’t commit was preferable to a maximum of 40 years if he was found guilty. Was that bad advice? Was it unethical advice?
In Canada, the ethics rules do not permit a lawyer to counsel a client to plead guilty to a crime unless the client can honestly state that he or she performed the criminal act with the requisite state of mind to constitute a criminal offense. Lawyers in the U.S. aren’t allowed to counsel their clients to lie either, which would seem to rule out a strategic guilty plea to lesser charges or in response to the incentive of a reduced sentence, unless the client truly did the deed. The American legal ethics system acknowledges, however, that the first job of a lawyer is to give the client the benefit of his or her legal expertise and judgment. If the lawyer doesn’t think a “not guilty” verdict is likely, the client has a right to know it. If the only way a criminal defendant client can avoid a long prison sentence or an execution is to admit to a crime he didn’t commit, he has a right to know that as well, and to base his actions on that information. It is not unethical for a lawyer to help a client determine the best way to navigate the criminal justice system. A similar dilemma occurs in the parole process, when a prisoner wrongly convicted is asked to express remorse and an acknowledgement of guilt for the crime he didn’t commit as a condition of being granted early release. Should the prisoner’s lawyer advise his client to lie to the parole board to achieve the greater justice, or to sta truthful and adamant in his claims of innocence, resulting in longer imprisonment? This kind of dilemma is one of the reasons I abandoned criminal law, but yes, I would advise my innocent client to admit guilt, after making sure he understood that this would have unpleasant consequences too. It’s his life, and his choice.
Advising an innocent client to plead guilty can be necessary to serve the best interests of the client. Was it in Banks’ case? So far, I haven’t seen evidence to the contrary. Sometimes lawyers advise pleading guilty in winnable cases because they are lazy, or because their judgement of the likelihood of conviction is mistaken, or because they just aren’t very competent lawyers. Then again, the assessment of whether a criminal defense will prevail has to be based on the skills of the rlawyer handling the case, not a theoretical, best possible lawyer. It would be absurd for the defense lawyer to say, “Yes, I think Clarence Darrow, F. Lee Bailey, Perry Mason or Denny Crane could get an acquittal from this jury, so let’s plead innocent and go to trial!” The question the lawyer has to answer is, “Can I get an acquittal, and if I can’t, is there another lawyer my client could hire who could?” If the answer is no, and the prosecutor offers a plea bargain, it might be an offer the client can’t afford to refuse.
Obviously, a prosecutor should never use a plea bargain offer to persuade a defendant to plead guilty if the prosecutor doesn’t believe the defendant is guilty. Let’s assume that this was true of Banks’ prosecutor: he believed the lying rape victim, and didn’t want to drop the charges. He also wanted to make sure that Banks served time for the rape; people should not get away with rape, after all. His tactic, therefore, right out of the “Law and Order” playbook, was to over-charge, and perhaps make an inexperienced or gullible defense attorney believe his case was stronger than it was. Dangling the sword of 40 years in jail and a lost lifetime over the head of a teenager, the prosecutor says, “Look…I’ll give you a break. Save the state the cost of a trial and plead guilty, and you can be out of jail in 5 years. You’ll still be a young man; you’ll have time to turn your life around. Or you can roll the dice, but I’m telling you, the victim is very persuasive, and I think the jury will believe her.”
“In the inevitably selective business of criminal punishment, selections are often made on perverse criteria. The lack of careful investigation that characterizes most felony prosecutions virtually guarantees that a significant number of innocent defendants are pressured to plead to crimes they did not commit. And within the much larger universe of guilty defendants, those who are punished most severely are often those who made the worst deals, not those who committed the worst crimes.”
The justice system only works if there are coherent and fair laws, competent and sufficiently funded law enforcement investigation, fair and ethical prosecutors determined to do justice rather than to maximize convictions, defense attorneys who have the dedication and skills necessary to expose a weak case and communicate it to the jury, and juries who can be trusted to take their duties seriously and who have the intelligence, perception and objectivity to weigh the evidence and come to a just verdict. Those are a lot of opportunities for something to go wrong, which is why we come right back to the cause of the Brian Banks tragedy: a vicious young woman who placed an innocent man at the mercy of criminal justice, where a lot can go wrong, and too often does.
Pointer and Sources: Legal Ethics Forum; special thanks to John Steele, Monroe Freedman, Patrick S. O’Donnell, Alice Woolley and Richard Zitrin.
Graphic: LA Weekly
Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts. If you are aware of one I missed, or believe your own work was used in any way without proper attribution, please contact me, Jack Marshall, at firstname.lastname@example.org.