Lee Stonum called me on a point that is worth pondering in a comment yesterday about my post wondering whether good lawyers can learn from good doctors. The premise of that piece was an analogy between cancer and a criminal charge: In both cases, professionals help those dependent upon them to manage risk. Central to the task of both lawyers and doctors is the management of hope and expectation in the face of catastrophe.
Lee's point disconcerted me. He so quickly found a fatal flaw in my analogy that I went about my chores yesterday (it was Saturday, and there are only so many days left in the Summer; I've plenty of outside work to get done before winter, and I worry that I cannot it all done) with a heavy heart and a spinning head.
Facing trial is not like facing cancer for the simple reason that, unlike cancer, a trial is the product of deliberate human will and conscious deliberation. Cancer occurs, whether the proximate but indirect result of human conduct, e.g., the use of pesticides. A trial is the result of a decision by prosecutors to single out a person for some real or imagined violation of the law. What's more, in a criminal prosecution, a judge is charged with the responsibility to see that the parties are treated fairly. There is no role analogous that of the judge in the oncologist's word; a doctor faces forces at once darker and more oblique. The law boasts of transparency; the physician struggles against opaque and primitive forces.
This is nowhere so evident as in the case of what criminal defense lawyers call the trial tax, the iron fist hidden beneath the Bill of Rights's velvet glove. As Stonum points out, there is a great risk in the criminal justice system that lawyers counsel guilty pleas in cases in which clients are either overcharged or actually innocent in order to avoid the punitive hammer that comes of holding the state to its burden of proof at trial. The trial tax, an opaque factor looming forever in the background, betrays the law's promise of transparency to be a farce.
Consider the following: Police observe a suspicious transaction between two men. As the officers walk toward the men one flees; it appears as though something was tossed as the man fled. The remaining man hands police officers his wallet on request. He, too, then breaks free and runs, escaping. The police still have a wallet, however. The officers find small bags of crack cocaine in the area where things appeared to be thrown.
An hour or so after this confrontation, the owner of the wallet calls the police station to report his wallet stolen. When officers go to the home of the man reporting the missing wallet, they recognize him as the very man who fled their custody. He is charged with possession with intent to sell crack cocaine and related offenses.
During plea negotiations the state offers the man two years to plead guilty to lesser charges. The man rejects the deal, and the case his tried. His father, sister and girlfriend testify he was at home with them at the very time officers claim to have stopped the man. It is a case claiming mistaken identity and alibi.
The jury convicts the man. His sentence? Eighteen years in prison. The tax imposed for going to trial was assessed at a rate of 900 percent! (The sentence was so severe the man's mother headed for a balcony on the courthouse's sixth floor after sentence was imposed. As her husband watched this, he collapsed with chest pain.)
In retrospect, I am sure this young man and his family wish that he had taken the two-year offer. The case was tried a decade ago; the man is still behind bars. Hindsight is 20-20.
But what of foresight? What is the lawyer's role? Stonum describes the process he goes through of counseling clients facing hard choices. But that process works best with clients possessing the intellectual and emotional resources to make candid judgments about their prospects. Some clients and families cannot face these decisions any more than a cancer victim can frankly assess their odds. Hope, perhaps like free will, is a necessary illusion.
I am troubled by the trial tax. I wonder, really, whether there ought to be something like binding high-low offers on the criminal side. The practice of setting upper and lower limits on recovery in civil arbitrations is common: Parties agree to avoid the risk of a zero-sum game by agreeing that recovery can fall within a given range. Why, if we value the Bill of Rights and the presumption of innocence as much as we say we do are we not engaged in imposing limits on the trial tax? When lawyers counsel clients about the punitive nature of claiming the rights all defendants are guaranteed something is wrong.
I hope Stonum sees this post. I would like to advance the discussion here. I concede the trial tax is a real and present danger to defendants seeking to resolve their case. And lawyers too timid to try cases will easily quake in the face of harsh offers, thus encouraging the state to overcharge and engage in legally sanctioned extortion. The system fails if lawyers are unwilling to try cases. I wonder, finally, whether there ought not to be due process limitations on the trial tax.
There is something fundamentally wrong with the practice. Good lawyers need to acknowledge the reality of this silent killer of Constitutional hopes and dreams; it adds a layer of complexity to our counseling of clients that physicians do not face.
