The Defense Attorneys Role in Plea Bargaining ALSCHULER
The Defense Attorneys Role in Plea Bargaining ALSCHULER
The Defense Attorneys Role in Plea Bargaining ALSCHULER
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Journal Articles Faculty Scholarship
1974
Recommended Citation
Albert Alschuler, "The Defense Attorney's Role in Plea Bargaining," 84 Yale Law Journal 1179 (1974).
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The Yale Law Journal
Volume 84, Number 6, May 1975
by Albert W. Alsehulert
1179
1180
The research for this article was conducted during the 1967-1968
academic year, when I visited ten major urban jurisdictions-Boston,
Chicago, Cleveland, Houston, Los Angeles, Manhattan, Oakland, Phila-
delphia, Pittsburgh, and San Francisco. In each city, I talked with
prosecutors, defense attorneys, trial judges, and (usually) other crim-
inal justice officials. My interviews did not follow a set format, and
the resulting study is not a scientific survey. As I noted in an earlier
article based on the same interviews, 7 I have engaged in a kind of le-
gal journalism. 8
The utility of this kind of study seems to me to lie primarily in
its ability to guide analysis and to permit an evaluation of the in-
herency of the problems that it suggests. Most of what I report is
hearsay, and individual stories and observations may therefore be sus-
pect. Even unverified gossip may be valuable, however, when, it "makes
sense"-when reflection indicates that our current system of criminal
justice would inevitably lead to behavior of the sort described in more
than a few cases. Moreover, the hearsay tends to become credible
when similar observations are reported by persons with different and
opposing roles in the criminal justice system and by persons in inde-
pendent jurisdictions across the nation.
In assessing the role of defense attorneys in the guilty-plea process,
I begin with privately retained attorneys and then turn my attention
to public defenders, to other appointed attorneys who represent in-
digent defendants, and to defendants who represent themselves in the
bargaining process. I conclude by considering two major ethical prob-
lems which confront all defense attorneys involved in plea bargainingY
1181
work. There are two basic ways to achieve financial success in the
practice of criminal law. One is to develop, over an extended period
of time, a reputation as an outstanding trial lawyer. In that way,
one can attract as clients the occasional wealthy people who become
enmeshed in the criminal law. If, however, one lacks the ability or
the energy to succeed in this way or if one is in a greater hurry,
there is a second path to personal wealth-handling a large volume of
cases for less-than-spectacular fees. The way to handle a large volume
of cases is, of course, not to try them but to plead them.
These two divergent approaches to economic success can, in fact,
be combined. Houston defense attorney Percy Foreman observed that
the "optimum situation" for an economically motivated lawyer would
be to take one highly publicized case to trial each year and then to
enter guilty pleas in all the rest. "One never makes much money on
the cases one tries," Foreman explained, "but they help to bring in
the cases one can settle." As Boston attorney Monroe L. Inker less
elegantly described this facet of law-practice economics, "A guilty
plea is a quick buck."
To describe how economically motivated lawyers would behave is
not, of course, to say that most lawyers care only about their pocket-
books. Some of them do, however, and an evaluation of the guilty-
plea system should include frank recognition of this fact. Every city
has its share of what Los Angeles attorney George L. Vaughn called
"professional writ-runners and pleaders"-lawyers who virtually never
try a case.1 0
10. In Manhattan, a group of lawyers whose offices are located in close proximity to
the criminal courthouse are sometimes referred to as "the Baxter Street irregulars." The
New York Times once reported, "The philosophy of these lawyers, according to one of
Manhattan's top prosecutors, is simple: 'Whatever the defendant can scrape up, that's the
fee, and from then on all the lawyer is interested in is disposition of the case as fast as
possible.'" Burks, City Courts Facing a Growing Crisis, N.Y. Times, Feb. 12, 1968, at 41,
col. 1, 44, cols. 6-7. See D. NEWMAN, supra note 3, at 74; Mackell, Streamlining Procedure
for Guilty Pleas, 4 THE PROSECuToR 75 (1968).
Judge Harold Rothwax of the New York City criminal court once told a reporter:
Yesterday, a lawyer came up to the bench to plea-bargain-that is to see what I
would reduce the charge to if his client pleaded guilty. The lawyer had never set
eyes on his client and he simply didn't know the law. Now, that was a legal-aid
lawyer. Private lawyers are usually even worse. Many of them hang around the
criminal courts and pick up clients who are bewildered and desperate. These lawyers
charge anywhere from a hundred dollars to five hundred dollars a case, and they
often take in fifty to sixty thousand dollars a year-for doing next to nothing and
doing it very badly. I know some of them who have practiced in the criminal courts
for thirty years and have never gone to trial. They don't even read the papers in the
cases they handle.
Harris, Annals of Law in Criminal Court-I, THE NEW YORKER, Apr. 14, 1973, at 45, 76.
This phenomenon has not escaped the attention of offenders themselves. See B. JACKSON,
OUTsIDE THE LAW: A THIEF'S PRIMER 130 (1972): "Most of these lawyers... can't fight their
case. They don't know how to fight. A lot of them haven't tried a case for the last fifteen
or twenty years."
1182
1183
1184
18. Whatever the current status of the practice of criminal law, older defense attorneys
agree that it has become far more respectable than it was 20, 30, or 40 years ago. "When
I started," reported San Francisco's Benjamin M. Davis, "a criminal defendant had no
right of discovery at all-unless he had a $10 bill. Ten dollars would secure full discovery
from the best police force that money could buy. Moreover, it was especially important for
lawyers to 'take care of' the booking officers at the stationhouse, for these officers gave
the lawyers most of their business. Cases of whiskey for probation officers were also a
necessity, and it was sometimes advantageous to bribe even newspaper reporters whose
recommendations could be influential with certain judges." Another San Francisco at-
torney, James Martin Maclnnis, recalled a former prizefighter who became an attorney
and worked out of a bondsman's office. This attorney would commonly offer half his fee
to a police inspector to arrange a plea agreement, and if the inspector turned him down,
the attorney would return the money to his client. "In that respect, this attorney was
more honest than most of the guys in the criminal courts 35 years ago," Maclnnis con-
cluded.
As Houston's Percy Foreman summarized the situation, "In the past, dishonesty was
the norm. A small number of crooked lawyers were mopping-up. Some good lawyers
entered the field, however, and they attracted others. Everyone had to work harder to
maintain his share of the business. In the process, many of the oldtime sharpsters fell by
the wayside."
19. The estimate of Houston's Lloyd M. Lunsford came closer to Haynes's than to
Foreman's: "Seventy percent of the defense bar are far too ready to plead their clients
guilty."
20. Manhattan attorney Richard H. Kuh said that "purely for economic reasons a
majority of the defense bar are too ready to plead their clients guilty." By contrast,
prosecutor Jerome Kidder estimated that only 10 or 15 percent of Manhattan's defense
attorneys were "chiefly concerned with getting rid of the case through a plea."
1185
Philadelphia prosecutor Joseph M. Smith maintained that there were only two private
attorneys in Philadelphia who "plead all their clients." Smith added, however, "There
are only 20 or so attorneys who regularly appear in criminal cases." The estimates of
Philadelphia defense attorney Bernard Segal and of Public Defender Vincent J. Ziccardi
were similar.
Pittsburgh prosecutor James G. Dunn said that of the six or seven private attorneys
who work in the criminal courts every day, "three or four run their offices like collection
agencies." Pittsburgh Public Defender George H. Ross observed, "Of the 10 to 12 private
attorneys in Pittsburgh with active criminal practices, five plead virtually all of their
clients guilty. There were once more attorneys in the 'cop-out' category, but our office
destroyed two or three of them."
Los Angeles defense attorney Ned R. Nelsen claimed that "far more than half of all
defense attorneys work for fees that do not permit them to go to trial." Prosecutor Lynn
D. Compton said, however, that he could "count the number of 'cop-out lawyers' on the
fingers of both hands."
Oakland defense attorney John A. Pettis said that "only a few lawyers take a predatory
attitude toward their clients," and prosecutor Edward O'Neill agreed that the number of
"cop-out lawyers" in Oakland was very small.
Chicago defense attorney Sam Adam declared, "Of the working defense bar of something
fewer than 50 attorneys, there are probably a dozen 'cop-out lawyers.' "
Joseph Donahue, a Cleveland prosecutor, said, "Let me put it this way. There are a
great many attorneys in Cleveland who have done nothing but criminal work for years
and who have never met a jury."
21. There was also general agreement that this problem had diminished in importance
with the growth of public defender systems. Many jurisdictions require little more than a
defendant's say-so to classify him as indigent and therefore eligible for free defender
services. See Note, Comparison of Public Defenders' and Private Attorneys' Relationships
With the Prosecution in the City of Denver, 50 DEN. L.J. 101, 110 (1973) (by J. Battle)
[hereinafter cited as Comparison of Defense Relationships]; Lobenthal, Book Review, 26
STAN. L. REV. 1209, 1211-12 (1974). Some defendants who might otherwise have paid small
fees to the "hangers-on" of the criminal bar are now apparently represented by public
defenders instead.
22. "The same process is at work in both civil and criminal cases," Foreman added.
He reported that he had recently entered a two-year-old personal injury suit previously
handled by a firm in Lubbock, Texas. Although this firm specialized in personal injury
matters, the defendant's highest settlement offer had been only S10,000. As soon as the
defendant's lawyers learned that Foreman was representing the plaintiff, they called with
an offer of $25,000. "Their offer will be S50,000 by the time the case is ready for trial,"
Foreman concluded.
23. Professor Phillip E. Johnson, a sometime prosecutor in Ventura County, California,
recalled a "cop-out lawyer" who frequently telephoned with a plaintive request: "Phil,
could you dismiss the priors [prior convictions] if my man pleads? Now, of course, we'll
plead anyway, but I just wondered if you could dismiss the priors." Invariably Johnson's
answer was that he simply could not dismiss the priors "in view of the circumstances of
the case."
1186
Not only an attorney's willingness to take his cases to trial, but his
ability as a trial advocate 24 and his willingness to appeal unfavorable
verdicts25 can apparently influence the concessions that his clients
26
receive.
"A lawyer always gets more by fighting," claimed Boston attorney
Paul T. Smith, "but most lawyers don't know how." Houston's Richard
Haynes observed, "A lawyer who scares the D.A.'s office gets better
fees and better pleas. My philosophy is always to give the prosecutors
the long-form treatment and the full-court press." 27
These same lawyers noted, however, that an attorney's reputation
as a trial advocate could grow to the point that, paradoxically, it might
diminish his ability to bargain successfully. Foreman, for example,
said that his national reputation had probably limited his effectiveness
in criminal cases: "Perhaps the prosecutor wants to show that he is
not afraid, or perhaps he wants to write his mother that he lost a case
to Percy Foreman. Whatever the reason, I now have to try cases that
28
I could have settled over the telephone 40 years ago."
24. White, A Proposal for Reform of the Plea Bargaining Process, 119 U. PA. L. REV.
439, 445, 446 (1971) (many Philadelphia prosecutors admitted that they are more willing
to grant concessions when a defense attorney's skill decreases the chance of conviction).
25. Sam Adam, a defense attorney in Chicago, maintained that most lawyers fail to
recognize the bargaining leverage provided by a willingness to appeal:
Appealing cases is not so hard and time-consuming as most lawyers think it is, and
when a lawyer develops a reputation as an appellate advocate, prosecutors offer
lighter sentences during plea bargaining to avoid the burden of appellate proceed-
ings. In addition, if a case does go to trial, a defense attorney's recognized willingness
to appeal usually makes the trial itself a lot fMirer.
26. Some defense attorneys maintain, however, that successful plea negotiation turns
more on personal relationships than on a lawyer's willingness to try cases or his potential
ability to succeed at trial. In the view of these attorneys, a "fighting posture" costs a
defense attorney more than it gains. Moreover, seven of the 10 private defense attorneys
who were interviewed by Jackson B. Battle maintained that "contacts" were more im-
portant in a successful criminal law practice than knowledge of substantive law or
procedure. In Search of the Adversary System, supra note 14, at 66.
27. See D. NEWMAN, supra note 3, at 74; D. NEUBAUER, CRIMINAL JUSTICE IN MIDDLE
AMERICA 219 (1974); Skolnick, Social Control in the Adversary System, 11 J. CONFLICT
RESOLUTION 52, 58 (1967).
28. Similarly, Haynes, who at one point in his career specialized in driving while
intoxicated cases, found that he was unable to bargain successfully after he had secured
successive acquittals in 183 of these cases. A law school classmate who had joined the
prosecutor's office explained, "You are now a Number One Cat, and if I can lay you
in the dust at trial, I'm a champ."
Some prosecutors seem as influenced by a spirit of gamesmanship as by the merits of
their cases or any rational administrative concerns. It is interesting in this respect to
compare Foreman's description of the effect that his reputation as a trial lawyer has had
in civil cases, see note 22 supra, with his description of its quite different effect in
criminal cases. When a lawyer represents a specific, paying client, he may be more reluc-
tant to indulge his personal whims (for example, that it would be "fun" to try a case
against a famous opponent) than when he represents the state as part of its criminal
justice machinery. There may, accordingly, be checks on the rationality of the civil
settlement process that are lacking in the plea bargaining process. Interestingly, most of
the attorneys who participated in Jackson B. Battle's study maintained that "contacts"
were more important in a criminal than in a civil practice. In Search of the Adversary
System, supra note 14, at 67.
1187
Defendants who pay for and accept the self-serving advice of the
"cop-out lawyers" obviously exhibit bad judgment. One might expect
"con wise" defendants to be alert to this danger and to recognize
that representation by a public defender is ordinarily more advan-
tageous. In view of the easy availability of this alternative, -9 it may
seem somewhat surprising that the "pleaders" remain in business at
all, let alone that they secure such a high portion of non-indigent de-
fendants as their clients. Two critical questions are thus how the
"pleaders" obtain their clients and how they induce them to enter
pleas of guilty.
The bail bondsman is a less important figure in the administration
of criminal justice today than he was a decade or two ago, 30 but all
too often it is still the bondsman who brings lawyers and clients to-
gether in criminal cases. The process is simple: when a defendant's
family emerges from their first visit to the jail, their dominant con-
cern is, of course, to secure the defendant's release as quickly as pos-
sible. And as the family stands in the jailhouse door, they see a pos-
sible answer; they confront a world of advertisements with such mes-
sages as "Free Parking For Ben's Bail Bonds." Typically, the family
seeks out a bondsman, and as the interview proceeds, the bondsman
asks, "Tell me, have you found a lawyer for the boy?" When the
answer is negative, the bondsman may respond with an understanding
smile, "Well I know just the man; and don't worry, he won't cost
you too much." The bondsman commonly receives a share of the
lawyer's fee in return for his services.3 1
29. In practice, nonindigent defendants are frequently able to qualify for public de-
fender assistance. See note 21 supra.
30. Illinois has, for example, effectively "socialized" the bail-bonding business, and
the private bondsman has become virtually extinct in Chicago. See Schilb v. Kuebel, 404
U.S. 357 (1971); ILL. REv. STAT. ch. 38, §§ 110-7, 110-8 (1970). In other jurisdictions,
personal bond programs have made the services of bondsmen unnecessary for a sub-
stantial number of defendants.
31. One Los Angeles attorney told me that he had an "ethical" business arrangement
with certain bondsmen: "When they have a client who needs a lawyer, they send him to
me, and when I have a client who needs a bond, I send him to them." But see ABA CODE
OF PROFESSIONAL RESPONSIBILITY, Disciplinary Rule 2-103(B). This same Los Angeles law-
yer estimated that 75 percent of all defense attorneys maintain some sort of business
relationship with one or more bondsmen.
In Texas, the situation is even worse than elsewhere, for defense attorneys may them-
selves serve as bondsmen. See Opinions of the State Bar of Texas Committee on Inter-
pretation of the Canons of Ethics, 18 BAYLOR L. RFv. 195, 327 (1966). One local Texas bar
association, concerned that lawyers who were hired initially as bondsmen might thereby
solicit legal business for themselves, has provided that a lawyer may serve as a bondsman
only when a lawyer-client relationship has come into existence before any bondsman-
client relationship. Lawyer-bondsmen chuckle about this rule, for it has aggravated the
problem that it was designed to solve. When a prospective client calls one of these law-
yers in search of a bond, the lawyer is likely to reply, "I'm sorry, I would like to write
1188
"Runners" in the jails and police stations are another fruitful source
of business, and the runners are sometimes public officials. An Austin,
Texas lawyer claimed to have overheard the sheriff of a neighboring
rural county tell a prisoner, "Mr. X [a notorious 'cop-out lawyer']
can get you probation on a plea."3 2 Houston prosecutor Sam H.
Robertson reported, "In the bad old days, a lawyer might appear at a
police station and ask for a prisoner whom we had done our best to
hold incommunicado. The prisoner had not been allowed to make
even one telephone call, but the lawyer was obviously on good terms
with the desk sergeant."
Jail trusties often have supervisory responsibility over other prison-
ers, and they too may serve as hustlers for the "cop-out lawyers." An
Oakland defense attorney said that he once visited a client in the
county jail and was present when another lawyer arrived. He heard
a jail trusty shout out, "Lawyer's here!," and several prisoners gath-
ered to answer the lawyer's question, "Have you got any money?"
The "pleaders" may even employ their own clients as runners on
a "commission" basis. A lawyer may say, for example, "My fee for
this case will be $700, but I'll make it $100 less for every new client
you send me."
Some lawyers "work" the courthouses as well as the jails. A Chi-
cago prosecutor recalled that he once entered a courthouse elevator
and saw a middle-aged black man studying a legal document. A de-
fense attorney who had entered the elevator with the prosecutor ap-
proached the man and asked, "You got trouble?" "Oh man, have I
got trouble!" the black man replied. "Well, perhaps I can help,"
said the lawyer, and he handed the man a business card as the prose-
cutor left the elevator.
your bond, but bar association rules prevent me from doing so unless you first hire me
as your attorney." The rule thus enables lawyers to make the tie-in more explicit than
it was before the rule's enactment. See E. Tucker, Client Selection of Criminal Defense
Lawyers in Austin, Texas, May 27, 1970 (unpublished paper on file at the University of
Texas Law School Library).
In addition to dangers of unethical solicitation, Texas's toleration of bond-writing by
lawyers promotes serious conflicts of interest on the part of many defense attorneys. A
lawyer's duty is, of course, to obtain as low a bond for his client as possible, but because
a bondsman's fee is usually a fixed percentage of the bond amount, his interests lie in
the opposite direction. In addition, it is often to a defendant's advantage to delay the
date of his trial, see pp. 1230-31 infra, but because delay prevents prompt return of the
bond and increases the risk of flight and of bond-forfeiture, a bondsman's interests al-
ways favor a speedy trial. The "see no evil" attitude of Texas bar associations toward
these problems can best be explained in terms of the fondness of Texas lawyers for
money.
32. The sheriff referred to the lawyer whose practice is described in note 15 supra.
See B. JACKSON, supra note 10, at 134: "Most of these lawyers in these little towns, they
have a little agreement with the chief jailer or someone, and they give him a cut. So if
he makes $100 off you, he gives him $20."
1189
33. See M. MAYER, supra note 13, at 162: "Private lawyers are to some extent paid to
be sympathetic. Part of this sympathy comes out in a protective coloration of self-
proclaimed corruption, because a criminal likes to hear his lawyer say he has the D.A. or
judge in his pocket...."
The attorneys interviewed by Jackson B. Battle spoke about their clients in a way that
tended to confirm this observation:
They usually want a fixer-especially the guys who have been through it before.
They know how it all works.
[Older offenders] accept everything that goes on. They've grown up in another era.
To them everything is "who you know" and the law is the same way.
When a man hires me, he hires me to win, and he doesn't care how I do it-under-
handed, overhanded, any way 1 can.
In Search of the Adversary System, supra note 14, at 110-11, 113.
Harry Subin reports that when a Washington, D.C. judge appointed two prominent
members of the bar to represent indigent defendants, both defendants refused the ap-
pointments and asked instead to be represented by one of the "regulars." H. SUBIN,
CRIMINAL JUSTICE IN A METROPOLITAN COURT 94 (1966). See B. JACKSON, supra note 10, at
130: "When you want a lawyer, you don't want a trial lawyer; you want a fixer."
1190
34. Chicago defense attorney Sam Adam maintained that one can often detect the
"cop-out lawyers" from their practice of filing an elaborate series of pretrial motions,
ending with a motion for a presentence report. "No one asks for a presentence report
before trial unless he is sure that there will not be a trial," Adam explained.
35. Very frequently, in fact, a lawyer does not know why a particular client has
selected him. A Chicago defense attorney described a tawdry incident that illustrated this
fact. The lawyer had been called to a jail late at night by a man whom he did not know.
The man sat in an interview room, refused to look at the lawyer, and moaned, "I'm sick,
I'm sick." When the defendant failed even to acknowledge the lawyer's questions, the
lawyer rose to leave. At this point, however, the defendant looked up and said, "Cop me
out, man. Oh God, I'm sick." The interview continued and the lawyer asked whether the
client had any money. The client responded that if the lawyer would go to his apart-
ment, he would find a pair of gray wash pants with two $100 bills in the pocket. The
only difficulty was that the client, a narcotics addict, could not remember where he had
placed the apartment key. Eventually the lawyer found the defendant's father, and
together they entered the apartment. There were the gray wash pants with the lawyer's
retainer in the pocket. I later watched the lawyer earn his fee by carrying out his client's
instructions.
36. See Alschuler, supra note 7, at 95 (quoting Los Angeles prosecutor John IV. Miner).
37. See pp. 1286-87 infra.
1191
me that you are innocent, and I am inclined to believe you. But here
is how it looks." The lawyer may then recite the evidence, and no
matter how weak it is, he may announce that no jury in his experi-
ence would fail to convict on evidence of this sort. 38 If necessary, the
lawyer may mock and cajole the defendant: "That policeman has a
shield to back his story. What have you got? Are you employed? Don't
you have a record?" Finally, the lawyer may threaten to withdraw from
the case: "If you are not willing to accept my advice, let some other
lawyer get you that 40 years you'll serve if this case ever goes to
trial."3 9
If the lawyer's own efforts are unsuccessful, he may turn to the
defendant's family and attempt to bend their shame and discomfort
to his advantage. The lawyer may treat the family as understanding
collaborators who "of course" recognize the sensible course for the
defendant to take-although the defendant (a problem for his family as
°
always) blindly refuses to cooperate with those who want to help him."
The calculated use of family members to induce pleas of guilty has
occasionally become the subject of appellate litigation, and this strata-
gem was well illustrated in United States ex rel. Brown v. LaVallee,41
a case which the United States Court of Appeals for the Second Circuit
decided in 1970.
The defendant in Brown was charged with murder, but he main-
tained that he had acted in self-defense. Contrary to the advice of his
attorneys, he refused to plead guilty. The attorneys, in turn, neglected
to take the case to trial. As the Second Circuit explained,
The matter remained at this impasse for over ten months, with
defense counsel unable to sway petitioner from his determination
to go to trial.
38. One lawyer explained that his practice was to accept a client's story without
question for the first several interviews. Once the client's confidence had been established,
however, the lawyer would begin an interview by saying in a very soft voice, "My friend,
you're going to jail." The lawyer would then recite the evidence that the client had
failed to reveal, and the client would usually be so unsettled by the process that he
would be receptive to the lawyer's advice: "But it won't be too bad if we enter a plea
of guilty. I've talked to the prosecutor, and he happens to owe me a favor .... "
39. Cf. Lobenthal, supra note 21, at 1216:
After having allowed the client to ripen in jail for some time, [the lawyer] starts
explaining how airtight the prosecutor's case is and what the sentencing consequences
of going to trial are likely to be compared to the far more favorable consequences of
striking an early bargain. The process is worked equally on those who concede their
"guilt" and those who protest their innocence.... [T]his process is fraught with the
dangers of having to make split-second decisions on the basis of wrong or incomplete
information provided by the lawyer and with some additional risk of his downright
treachery.
40. See A. BLUNBERO, supra note 16, at 66; cf. United States ex rel. Curtis v. Zelkner,
466 F.2d 1092 (2d Cir.), cert. denied, 410 U.S. 945 (1972).
41. 424 F.2d 457 (2d Cir.), cert. denied, 401 U.S. 942 (1970).
1192
1193
sidered his action and moved to withdraw his plea prior to sentencing,
his motion was denied.
The court of appeals accepted the uncontradicted testimony of the
defendant and his mother, but it reversed a trial judge's determination
on habeas corpus that the defendant was entitled to a trial. "In our
view the plea was voluntary in every respect," the court concluded.
"In the mouths of the prosecutor or trial judge, these statements might
have been coercive; coming from [the defendant's] lawyers and his
mother, they were sound advice." 45 The court thus echoed the senti-
46
ments of other courts that have considered this issue.
"Cop-out lawyers" sometimes go beyond misadvice and emotional
cajolery. On occasion, they "con" their clients by offering them mis-
information. 47 In a relatively mild form, some of this misinformation
might be characterized as "puffing." A lawyer might, for example,
exaggerate the extent of his friendship with the prosecutor or trial
judge; he might claim that a routine plea agreement represented an
unusual concession; or he might inflate somewhat his prediction of
the likely sentence following a trial.
Other, more serious sorts of misinformation might be characterized
as "tall stories." A lawyer might emerge from a conference with the
trial judge in an angry mood: "You didn't tell me that you shot
45. 424 F.2d at 461. The court's statement seems backwards; the psychological impact
of the highly emotional importuning to plead guilty was certainly not lessened because
it came from the defendant's mother. It is interesting to contrast the courts' attitude
toward the use of family members to induce pleas of guilty with their attitude toward the
use of family members to induce out-of-court confessions. See Culombe v. Connecticut,
367 U.S. 568, 630 (1961) (Frankfurter, J., concurring) (condemning "the crude chicanery of
employing persons intimate with an accused to play upon his emotions").
46. A similar case is Parrish v. Beto, 414 F.2d 770 (5th Cir.), cert. denied, 396 U.S.
1026 (1969). The defendant, charged with rape, was 21 years old and had a sixth-grade
education. The prosecutor had threatened to "burn his butt"; he was held without trial
for 19 months; and his mother got down on her knees, clutched his leg, and begged him
in Spanish to save himself from the electric chair. The court, which set forth the facts
somewhat less vividly than I have on the basis of the record, described the defendant's
guilty plea as "voluntarily made after consultation with both his family and his attorney."
See St. Clair v. Cox, 312 F. Supp. 168 (W.D. Va. 1970); Denson v. Peyton, 299 F. Supp.
759 (W.D. Va. 1969); State v. Maloney, 434 S.W.2d 487 (Mo. 1968).
47. A defense attorney may "con" his client for reasons other than the obvious eco-
nomic ones. He may be persuaded that a trial would accomplish nothing, embarrass both
the attorney and the client, and lead to a more severe sentence. When, in this situation,
a client refuses to accept his attorney's advice and insists upon asserting his constitutional
rights, the attorney may convince himself that he is merely serving his client by defraud-
ing him. To some attorneys, a client's freedom of choice seems less important than his
interest in avoiding a severe sentence, and these attorneys claim to know, almost to an
absolute certainty, the consequences of a client's foolish choice.
Only one of the attorneys whom I interviewed admitted that he himself would oc-
casionally "bullyrag and con" a client into entering a guilty plea. The attorney insisted,
however, that he would deceive a client in only one situation-that in which the client
planned to take the witness stand to present perjured testimony. "I know that this is not
the textbook method for handling the problem," the attorney conceded, "but it works
better."
1194
that guy in the leg. It just so happens that the judge was wounded in
the leg himself during the war, and if you are convicted at trial, he
is going to lose you. But the prosecutor is an old law school classmate
of mine, and he still owes me some money that I loaned him to pay
his wife's medical bills. Here's what we can work out if you plead
guilty."
A lawyer may report that the prosecutor or trial judge has threat-
ened some action that neither official has threatened at all; he may
lie about the strength of the prosecutor's case; he may even lie about
the terms of the plea agreement that he has secured. A Chicago prose-
cutor reported that it is common to see a defense attorney argue for
probation in the courtroom after he and the trial judge have agreed
in the judge's chambers to a guilty plea and a prison term. The
prosecutor added that no one ever objects to the defense attorney's
effort to "put on a show" for his client, although the attorney has
plainly informed his client that the bargain he obtained left open an
48
option that it had, in fact, foreclosed.
In private contract law, when two parties assent to materially dif-
ferent contracts because of the fraud of an agent, there is no binding
agreement between them. 49 Nevertheless, when a defendant and a pros-
ecutor assent to materially different plea agreements because of a de-
fense attorney's misrepresentation, most courts have refused to hold
the resulting guilty plea invalid. Even when an attorney has given his
"word of honor" that the defendant's sentence would be less severe
than the sentence actually imposed, these courts have disposed of the
case by remarking that an erroneous "prediction" by defense counsel
does not render a guilty plea involuntary. 50
48. For a similar situation, see State v. Edmondson, 438 S.W.2d 237 (Mo. 1969); see
generally A. BLUMBERG, supra note 16, at 114.
49. Vickery v. Ritchie, 202 Mass. 247, 88 N.E. 835 (1909); 3 A. CORBIN, CONTRACrs §
599 (2d ed. 1960). Similarly, when an attorney's misrepresentation leads to a default judg-
ment against a client in a civil case, the judgment can be set aside. Searles v. Christensen,
5 S.D. 650, 60 N.W. 29 (1894).
50. Davison v. State, 92 Idaho 104, 437 P.2d 620 (1968); Masciola v. United States, 469
F.2d 1057 (3d Cir. 1972); United States v. Parrino, 212 F.2d 919 (2d Cir.), cert. denied, 348
U.S. 840 (1954) (false assurance by defense attorney, a former Commissioner of Immigra-
tion, that defendant would not be deported if he pleaded guilty); Dorsey v. Gill, 148 F.2d
857 (D.C. Cir.), cert. denied, 325 U.S. 890 (1945) (false assurance that defendant would be
permitted to join armed forces if he pleaded guilty); Jones v. United States, 307 F. Supp.
208 (D. Conn. 1969) (false assurance that defendant would be sentenced by a particular
judge); United States ex rel. Wilkins v. Banmiller, 205 F. Supp. 123, 127 (E.D. Pa. 1962),
aof'd on different grounds, 325 F.2d 514 (3d Cir. 1963) (deliberate misrepresentation that
attorney had obtained statements from witnesses that would convict defendant and that he
had secured a plea agreement that would result in a conviction of less than first degree
murder--"the due process standard is solely whether or not the state played any part in
the wrong done the accused"); People v. Gilbert, 25 Cal. 2d 422, 438, 443, 154 P.2d 657,
665, 668 (1944) (false statement that "'[t]here is no question now about its being a gamble;
it's a certain thing .... You're guaranteed life before Judge McKay' "--held that "[m]ere
1195
advice and persuasion ... will not suffice to vitiate the plea. Neither will unwarranted or
even willfully false statements of factual matters by his attorney suffice"); Ex parte Dye,
73 Cal. App. 2d 352, 353, 166 P.2d 388 (Dist. Ct. App. 1946) (misrepresentation that at-
torney had "fixed" the case and that defendant would not be imprisoned); McCranie v.
State, 242 So. 2d 202 (Fla. Dist. Ct. App. 1970) (false assurance that co-defendants would
be acquitted if defendant pleaded guilty); People v. Scott, 10 N.Y.2d 380, 381, 223 N.Y.S.2d
472, 473, 179 N.E.2d 486 (1961) ("Assuming the truth of the allegation . . . that (defend-
ant's] attorney told him that if he pleaded guilty he would receive a maximum sentence
of 5 years [when maximum sentence was in fact 20 years], it would be necessary for him
in order to succeed to establish that the allegedly broken promise had been made to his
attorney by the Judge or District Attorney"); People v. Cowen, 68 Misc. 2d 660, 328
N.Y.S.2d 111 (Sup. Ct. 1971) (false assurance that trial judge had promised a lesser sen-
tence than he ultimately imposed); State ex rel. Richmond v. Henderson, 222 Tenn. 597,
439 S.W.2d 263 (1969) (misrepresentation that defendant's wife would not be prosecuted
if he pleaded guilty).
51. United States v. Valenciano, 495 F.2d 585 (3d Cir. 1974); Mosher v. LaVallee, 491
F.2d 1346 (2d Cir.), cert. denied, 416 U.S. 906 (1974); Moorhead v. United States, 456 F.2d
992 (3d Cir. 1972); Ross v. Wainwright, 451 F.2d 298 (5th Cir. .1971), cert. denied, 409 U.S.
884 (1972); Castro v. United States, 396 F.2d 345 (9th Cir. 1968); Gilmore v. California,
364 F.2d 916, 918 (9th Cir. 1966) (by implication); United States v. Schneer, 194 F.2d 598,
600 (3d Cir. 1952) (dictum); Tarnabine v. Warden, 331 F. Supp. 975 (E.D. La. 1971); People
v. Walker, 250 Ill. 427, 95 N.E. 475 (1911); Long v. State, 231 Ind. 59, 106 N.E.2d 692
(1952); State v. Rose, 440 S.W.2d 441 (Mo. 1969); State v. Stephens, 71 Mo. 535 (1880);
State v. Casaras, 104 Mont. 404, 66 P.2d 774 (1937); State v. McAlister, 96 Mont. 348, 30
P.2d 821 (1934); State v. Tunender, 182 Neb. 701, 157 N.W.2d 165 (1968); cf. United
States v. Simpson, 436 F.2d 162 (D.C. Cir. 1970) (false assurance that particular sentence
would follow guilty plea does not render plea invalid but false assurance that attorney had
entered plea agreement with trial judge does invalidate plea).
One judge has suggested that an attorney's "mere prediction" shotld itself invalidate a
guilty plea in certain circumstances. In People v. Gray, 29 Mich. App. 301, 304, 185
N.W.2d 123, 124 (1970), the defendant had been sentenced to a term of three to 10 years.
He testified with the support of other witnesses that his attorney had assured him of an
award of probation if he pleaded guilty. The attorney, however, testified that he had
told the defendant only that there was a "reasonable chance for probation." In a separate
concurring opinion, Judge Charles L. Levin observed:
Far too frequently claims of this kind are made and, while many, perhaps most, are
baseless, as long as we permit, indeed encourage by the plea-bargaining process, law-
yers to "merely predict" to their clients that they may be placed on probation, we
must expect that accused persons, grasping for straws, will not stop to scrutinize with
lawyer-like care the words used by a trusted representative and confidant, an officer
of the court, and will share their lawyer's mere "hope" and act on it.
iThe issue is not whether particular words were used; the true question is, was [the
defendant] led to believe that he would be placed on probation?
The line between a promise and an expression of hope, expectation or a mere
prediction, can be most subtle.... [A]t various times in our lives we all justifiably
rely and act upon assurances which could not technically be called unconditional
promises.
Here the expression was by a seasoned lawyer to his youthful client. In such a case,
I would think that a strong disclaimer by the lawyer should be required to avoid
misleading the client; not a mere incantation of words: "It is, of course, up to the
judge."
29 Mich. App. at 307; 185 N.W.2d at 126.
Judge Levin would probe more deeply into the law)er-client relationship than most
other judges. Under the guilty-plea system, a lawyer would plainly be derelict in his
duty if he failed to offer a prediction of the consequences of a client's choice of plea, and
most courts are understandably reluctant to police the sufficiency of the explanation that
a lawyer provides to supplement his prediction. It may be doubted, moreover, that even a
"strong disclaimer" would make very much difference, in light of the psychological con-
siderations that Judge Levin described.
52. 275 F. Supp. 508 (E.D.N.Y. 1967).
1196
53. Id. at 516, 518. The Second Circuit has, however, disavowed the Thurmond
standard as "wholly subjective" and as an invitation to "use a guilty plea as a mere trial
balloon to test the trial judge's attitude." United States ex ret. LaFay v. Fritz, 455 F.2d
297, 303 (2d Cir.), cert. denied, 407 U.S. 923 (1972). But see Mosher v. LaVallee, 491 F.2d
1346 (2d Cir. 1974).
54. See Newman & NeMoyer, Issues of Propriety in Negotiated Justice, 47 DEN. L.J.
367, 398 (1970).
55. Judge Alcaron recognized that when a defense attorney's goal is to "con" his
client, he can, of course, fabricate other meetings and other transactions.
Los Angeles prosecutor John W. Miner recalled a "cop-out lawyer" whose regular
practice was to emerge from a conference in the trial judge's chambers and place his
arm around the prosecutor's shoulders. He would then say something like, "How are you,
John? Let's get together for lunch one of these days." Miner suspected, however, that the
conversation would be reported rather differently to the defendant: "I got the deal, but
)ou'd better come up with an extra 1000 for the judge and 300 for the prosecutor."
There is some evidence that offenders themselves have begun to use the term "fixer"
to refer, not just to the middleman in a bribery transaction, but to any lawyer who
specializes in bargaining pleas. B. JACKSON, supra note 10, at 141 n.10. From the worldly
perspective of these offenders, there is apparently not much difference between securing
a "break" by paying cash and doing the same thing by conferring an economic benefit
upon the people who finance (or fail to finance) criminal trials.
Of course, offenders may conclude that their attorneys have engaged in bribery even
when the attorneys themselves have made no effort to convey that impression, and the
ordinary workings of the guilty-plea system may sometimes lend color to this assumption.
Peter Petkas, a University of Texas law student, interviewed inmates of the Diagnostic
Unit of the Texas Department of Corrections in 1970. He found that questions about
judges, policemen, jailers, and prosecutors rarely generated a more intense response
than, "He was all right," or "I guess he was doing his job." Questions about defense at-
torne)s, however, evoked stronger opinions. Many inmates were bitter about the rep-
1197
Percy Foreman said of the cop-out lawyers, "They are worse than
hijackers. They steal not only money but life and liberty as well.
Moreover, the hijacker is not such a hypocrite. He does not pretend
that his theft is in the victim's interest." As the poet John Gay ob-
served 250 years ago:
resentation that they had received; others viewed their attorneys with admiration. Typical
of the latter category was an inmate serving a five-year sentence who claimed to have
paid his attorney 2200 dollars in cash as well as a house and lot worth 5000 dollars. The
inmate said of his lawyer, "For me he's next to Jesus Christ.... Of course something must
have gone under the table since they had all the evidence they could have wanted to put
me away for life." P. Petkas, Attitudes of Newly Arrived Inmates at the Texas Depart-
ment of Corrections, Spring 1970 (unpublished paper on file at the University of Texas
Law School Library); cf. Newman & NeMoyer, supra note 54, at 398:
All that a defendant may know is that he has paid his attorney a certain set sum, and
in return the lawyer has been able to obtain some sort of "deal" which results in a
lesser charge or sentence (or both) than he expected when arrested. It has been sug-
gested that some attorneys permit this misapprehension of a "fix" to exist in order
to justify fees. In short, they do not disabuse the client of his belief that the court,
the police officers, and/or the prosecuting attorney have been "taken care of" in
order to obtain the lesser charge or the lenient sentence.
See also ABA PROJECT ON STANDARDS FOR CRIMINAL JusrICE, STANDARDS RFLITING io TIIE
DEFENSE FUNCTION § 3.3, comment at 207-08 (1970) [hereinafter cited as ABA SrANDARDS].
56. J. GAY, Fables: The Shepherd's Dog and the l'olf, in THE POErIcAL AVOIms OF
JOHN GAY 249 (G. Faber ed. 1969), quoted in Spano v. New York, 360 U.S. 315, 323 (1959).
57. Cf. People v. Bennett, 29 N.Y.2d 462, 280 N.E.2d 637, 329 N.Y.S.2d 801 (1972). This
case reveals that a lazy lawyer may undertake a trial despite a total lack of preparation,
but the case also illustrates how incongruous this behavior becomes in contexts other
than the guilty-plea system.
58. Some observers seem to reject automatically any suggestion that institutional ar-
rangements can affect human behavior; from their perspective, no failure that can be
attributed to human shortcomings can ever reflect adversely upon "the system" as well.
E.g., H. SUBIN, supra note 33, at 114:
1198
If the prosecutor is merely trying to make his case with a minimum of effort, and
the defense counsel is attempting to earn his fee the same way, there is no fair bar-
gain and the gains to the defendant are likely to be illusory. But this situation is a
function of poor representation by counsel rather than the unalloyed evil of the plea
bargain.
Subin seems to overlook the fact that the very purpose of plea bargaining is to con-
serve resources and to enable attorneys "to make their cases with a minimum of effort."
59. See A. BLUMBERG, supra note 16, at 112; M. 'MAYER, supra note 13, at 161.
60. R. Petty, supra note 15. Petty used the mailing lists of the Texas Criminal Defense
Lawyers Association and the Criminal Procedure Section of the State Bar of Texas to
send questionnaires to 1000 criminal defense attorneys.
61. See A. BLUMBERG, supra note 16, at 113.
62. The attorneys noted that this judicial reluctance to permit withdrawals had in-
creased greatly in recent years. Nevertheless, 71 percent of the lawyers who participated
in the Petty study reported that trial courts in their jurisdictions ordinarily permitted
withdrawals when the lawyers had been unable to collect their fees. R. Petty, supra note
15, at 16.
1199
63. Id. at 6.
64. Cf. Skolnick, supra note 27, at 61: "Usually, defense attorneys charge a set fee for
a defense regardless of whether a trial takes place."
In 1966, the Houston- Bar Association published a Recommended Minimun Fee
Schedule for private attorneys to observe in criminal cases. Under this schedule, fees were
established for different "types" of cases, and these fees remained the same whether or
not a trial was required. Thus the recommended minimum fee was S500 for an
"ordinary felony," S750 for a "second offender felony," and $1,000 for a "habitual
criminal felony." The schedule suggested that when a defense attorney appeared in a
federal court he should "add minimum 200 to all equivalent charges for State Courts."
65. R. Petty, supra note 15, at 5-6.
66. Id. at 8.
67. The attorneys also noted that they sometimes "lose money" on exceptionally
lengthy trials. "I have yet to see anyone rush in to reimburse me when I do," one at-
torney declared.
1200
68. I prefaced this question by noting that of course lawyers were not motivated ex-
clusively by economic concerns and that they might appear in many trials that could not
be regarded as profitable. My purpose was to explore the economic aspects of the prob-
lem and not to suggest that other aspects were unimportant.
69. I cannot claim that my sample was in any sense representative. Although I
tried to interview defense attorneys of various ages, income brackets, and types of practice,
my interviews undoubtedly included more than a random share of "well established"
trial attorneys. One of these attorneys responded to my question about the sort of fee
necessary for a trial by remarking that his own "basic retainer" for a routine case was
$5,000 and that it "would often be more." Another attorney, by contrast, said that a
R500 fee could make a simple trial "profitable for the average attorney." When lawyers
seemed reluctant to mention any specific figure, I asked whether S1000 would represent
a realistic estimate of the fee necessary to make even a one-day trial financially reward-
ing. Some lawyers thought that this figure was "about right," and others maintained that
when a lawyer's expenses and preparation efforts were taken into account 5I000 was "a
low figure."
1201
70. Cf. Steinberg & Paulsen, A Conversation With Defense Counsel on Problems of a
Criminal Defense, PRAc. LAw., May 1961, at 25, 33: "A great many persons charged with
crime have some money, enough to make them ineligible to receive a free assignment of
counsel, but not enough to finance the kind of defense that may be necessary."
71. The problem of the defaulting client may not be quite so common as the com-
plaints of some defense attorneys make it seem. Most of the lawyers surveyed by Ryan
Petty agreed that fewer than 30 percent of their clients ultimately paid less than the
agreed-upon fee. Most lawyers noted that they ordinarily requested full payment before
beginning work. R. Petty, supra note 15, at 15.
1202
72. Steinberg & Paulsen, supra note 70, at 32. A recent New Yorker cartoon depicted
a lawyer in conference with his client. The caption read, "You have a pretty good case,
Mr. Pitkin. How much justice can you afford?," NEw YORKER, Dec. 24, 1973, at 52, quoted
in Lobenthal, supra note 21, at 1221 n.22.
73. R. Petty, supra note 15, at 17.
74. For this reason, professional discipline probably does not represent a realistic ap-
proach to the problem of controlling the conduct of "cop-out lawyers." An attorney may
have entered guilty pleas in hundreds of cases without ever taking a case to trial, but be-
cause the choice between a trial and a guilty plea almost invariably turns upon difficult
questions of judgment, it would usually be difficult to show that the lawyer failed to
represent his client's interests in any particular case. Were professional discipline then
to be based upon a purely statistical inference of the lawyer's unwillingness to try meri-
torious cases, the effect might, at most, be to induce "cop-out lawyers" to meet a mini-
mum "quota" of trials. The quality of representation that these lawyers provided in the
great majority of cases would remain unchanged. Absent any effective mechanism to
discern when a lawyer has sacrificed a client to his own financial interests, professional
discipline seems inherently inadequate. A more workable answer lies in reforming the
guilty-plea system itself.
75. See Alschuler, supra note 7, at 58-64; White, supra note 24, at 445, 451-52 (1971).
1203
able, his final recommendation to his client will usually reflect his
own temperament as much as the circumstances of the case. When
the attorney also has a direct financial interest in his decision, it seems
unlikely that anyone could entirely exclude this consideration from
the decision-making process.
Sound policy cannot simply ignore conflicts of interest and rest in-
stead upon a blind presumption of discipline and devotion to pro-
fessional ideals. In 1927, the United States Supreme Court considered
a state statutory scheme under which mayors sat as trial judges in
criminal cases and received $12 in "costs" for every defendant whom
they convicted and fined but no compensation for cases that ended
in acquittal.7 6 At least one lower court had rejected a claim that this
sort of compensatory scheme violated the due process clause by sub-
jecting judicial officers to conflicts of interest: "We cannot recog-
nize the force of this suggestion, founded as it is upon the assumption
that justices will violate their oaths and the duties of their office
... ."77 Moreover, the state had argued that the amount of the mayors'
fee was de minimis-so small that it was unlikely "to influence im-
properly a judicial officer in the discharge of his duty. 78
The Supreme Court ruled, however, that although there was no
proof of prejudice in the case at hand, a fee system contingent upon
a trial judge's decisions necessarily violated the Fourteenth Amend-
ment. Chief Justice Taft observed:
There are doubtless mayors who would not allow such a con-
sideration as $12 costs in each case to affect their judgment in it;
but the requirement of due process of law in judicial procedure
is not satisfied by the argument that men of the highest honor
and the greatest self-sacrifice could carry it on without danger of
injustice.7 9
Under today's guilty-plea system, it may be even more important that
a defendant receive the impartial advice of an attorney than that his
case be heard by an impartial judge. Nevertheless, a direct financial
interest threatens this impartiality. Once again, this danger cannot
be answered "by the argument that men of the highest honor and
the greatest self-sacrifice" might advise their clients "without danger
of injustice."8 0
1204
held that due process is denied by circumstances that create the likelihood or the ap-
pearance of bias ....It is in the nature of the practices here challenged that proof of
actual harm, or lack of harm, is virtually impossible to adduce"); In re Murchison, 349
U.S. 133, 136 (1955) ("Fairness of course requires an absence of actual bias ....But our
system of law has always endeavored to prevent even the probability of unfairness").
When a fee arrangement may lead a lawyer to demand a trial that is not truly in his
client's interests, a court may be much quicker to find a conflict of interest than when
the opposite problem is presented. In United States ex rel. Simon v. Murphy, 349 F.
Supp. 818 (E.D. Pa. 1972), a defense attorney agreed to collect his fee from life insurance
proceeds that would be paid only if the defendant were acquitted of murder. The court
said of this contingent-fee arrangement: "It is hard to imagine a more striking example
of blatant conflict between personal interest and professional duty.... A conflict of in-
terest arises where the lawyer is faced with the task of giving advice to the client on
optional courses of action where the lawyer stands to benefit personally from the adoption
of one course to the exclusion of the other." Id. at 823.
81. If, for example, a lawyer doubts his ability as a trial advocate, a negotiated plea
is likely to seem especially appealing. Several defense attorneys told me that the longer
they had practiced, the more likely they had become to reject prosecutorial offers and to
take their cases to trial. Contrary to my original expectation that younger lawyers would,
as a rule, be more attracted to the prospect of appearing before a jury, these lawyers
explained that they now "knew better how to try a case," that they were "alert to triable
defenses that they might have overlooked in the past," and that they had "developed
more confidence in themselves in the courtroom."
82. See, e.g., ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, FEDERAL OFFENDERS
IN THE UNITED STATES DISTRIcT COURTS 1971, at 13-14 (1973) (exhibits VII & VIII) [here-
inafter cited as FEDERAL OFFENDERS IN U.S. DISTrcr COURTS].
1205
himself that the situation would probably have been worse had the
defendant stood trial. The visibility of a "wrong' decision to stand
trial may, in this way, provide a further psychological impetus for
lawyers to recommend pleas of guilty to their clients. Virtually every
aspect of today's system of criminal justice, in short, seems designed
to influence defense attorneys to adopt the motto: when in doubt,
cop him out.
83. In this article, I use the term public defender to refer to any salaried lawyer
whose full-time job is representing indigent defendants in criminal cases. This use is, of
course, somewhat imprecise, for it includes the "private defender" whose income comes
mainly from charitable contributions or other nongovernmental sources.
Although only 28 percent of state court jurisdictions have established public defender
systems, these systems provide the most common source of indigent representation in large
cities. As a result, public defenders now serve almost two-thirds of the United States
population. NATIONAL LEGAL AID AND DEFENDER Ass'N, THE OTHER FACE OF JUSTICE 13
(1973) [hereinafter cited as THE OTHER FACE OF JUSTICE].
84. The San Francisco Committee on Crime noted "a deep-seated antagonism toward
the San Francisco Public Defender's Office among minority groups" and found that "by
far the most persistent criticism is that the office is reluctant to go to trial for its
clients." Nevertheless, the Committee concluded that this criticism was unjustified. 4.2
percent of all felony defendants represented by the public defender went to trial; the
overall trial rate for felony defendants was only slightly higher-4.9 percent. SAN
FRANCISCO COMMITTEE ON CRIME, A REPORT ON THE SAN FRANCISCO PUBLIC DEFENDER'S
OFFICE 4-7, A-2 (1970) [hereinafter cited as REPORT ON THE SAN FRANCISCO PUBLIC DE-
FENDER'S OFFICE].
During 1970, 96 percent of all convictions in cases in which the Legal Aid Society of
New York City appeared were by plea of guilty. LEGAL AID SoCIety OF NEW YORK,
NINETY-FIFtH ANNUAL REPORT 7 (1970). At the same time, 96 percent of all convictions in
the felony courts of New York City were by plea of guilty-a fact which suggests that
retained attorneys probably entered guilty pleas at about the same high rate. JUDICIAL
CONFERENCE OF THE STATE OF NEW YORK, SEVENTEENTH ANNUAL REPORT A77 (1972) (table
12). Abraham Blumberg found that although retained attorneys in Manhattan were
ultimately as likely to recommend guilty pleas to their clients as Legal Aid attorne)s, the
Legal Aid attorneys were much more likely to recommend guilty pleas at the initial client
interview. A. BLUMBERG, supra note 16, at 93 (data based on interviews with convicted
defendants).
85. Lee Silverstein studied 30 counties with defender systems in 1962. He found that
in 20 of these counties the clients of public defenders pleaded guilty more frequently
than did the clients of private attorneys. In five counties, this pattern was reversed, and
in the remaining five counties, there was no significant difference in the guilty-plea
rates of the two groups of defendants. L. SILVERSTEIN, DEFENSE OF THE POOR IN CRIMINAL
CASES IN METROPOLITAN STATE COURTS 53 (1965).
1206
Dallin H. Oaks and Warren Lehman reported that public defenders in Chicago entered
guilty pleas for 82 percent of the felony defendants whom they represented; the com-
parable guilty-plea rate for retained attorneys was only 68 percent. D. OAKS & W.
LEHMAN, A CRIMINAL JUSTICE SYSTEM AND THE INDIGENT 156-67 (1968).
In the United States District Court for the Southern District of New York in fiscal
1966, 80 percent of all defendants with appointed attorneys (most of whom were public
defenders) entered pleas of guilty. Only 58 percent of the defendants with privately re-
tained counsel pleaded guilty. D. OAKS, THE CRIMINAL JUSTICE ACT IN THE FEDERAL
DIsTRICe COURTS 238 (Subcomm. on Constitutional Rights of the Senate Judiciary Comm.,
90th Cong., 2d Sess., Comm. Print 1969).
In Philadelphia in 1965, only 27 percent of all criminal convictions were by plea of
guilty. Specter, Book Review, 76 YALE L.J. 604, 605 (1967). The next year, the Defender
Association of Philadelphia reported that a significantly higher proportion of the convic-
tions in cases in which it had appeared had been by guilty plea-48 percent. DIRECToRS OF
THE DEFENDER ASSOCIATION OF PHI.ADELPHIA, THIRTY-THIRD ANNUAL REPORT 26 (1967). But
see Note, Client Service in a Defender Organization: The Philadelphia Experience, 117
U. PA. L. REV. 448, 468 (1969) (only 17 percent of defender cases ended in guilty pleas, a
smaller figure than the overall percentage in Philadelphia).
The National Legal Aid and Defender Association (NLADA) recently reported on the
basis of a national survey, "[rThe national average rate of guilty pleas was 68.5% among
all felony defendants.... The rate of guilty pleas for reporting defenders in felony cases
was 53.4%." THE OTHER FACE OF JUSTICE, supra note 83, at 30. In view of the fact that
the guilty-plea rate of public defenders in almost every jurisdiction for which data are
available seems to match or exceed the overall guilty-plea rate for that jurisdiction, these
figures probably do not suggest that public defenders enter guilty pleas less frequently
than private attorneys. They may at most suggest that public defenders enter guilty
pleas less frequently than appointed attorneys in jurisdictions without defender systems.
The method by which the NLADA calculated its averages (for example, averaging
prosecutors' estimates of the guilty-plea rates in their own jurisdictions without "weight-
ing" the responses to reflect the number of cases in each jurisdiction) may make any
conclusion on the basis of these data somewhat suspect.
86. S. Portman, The Necessity for an Organized Defender Office in a Highly
Populated, High Crime Area 2, 4-5, 1969 (unpublished). An edited version of Portman's
talk appears in REPORT OF PROCEEDINGS OF THE NATIONAL DEFENDER CONFERENCE 55 (1969).
Portman also declared:
The cost savings from the operation of a defender system on a cost-per-case basis
1207
are considerable. During fiscal 1967-68, court-appointed counsel fees in cases where
the Public Defender could not represent multiple defendants because of conflict of
interests averaged .$150 in Santa Clara County. In contrast, the cost-per-case handled
by our department was about $50 per case.
At the same time, as mentioned before, our jury trial rate is 6%, compared to an
average trial rate of about 11% before the establishment of a Public Defender
system. In comparison, our neighboring county of San Mateo without a defender
program had a 30% trial rate during 1967. Considering that the average cost for
jury trials is about ,$300 per day for judges, jurors and court attaches, this represents
a considerable savings in a high-crime jurisdiction.
See also Eckart & Stover, Public Defenders and Routinized Criminal Defense Processes,
51 J. URn. L. 665, 666 (1974) (defenders' goal is to obtain a "satisfactory" rather than an
"optimal" resolution of each case).
At oral argument in Argersinger v. Hamlin, 407 U.S. 25 (1972), Bruce S. Rogow suc-
cessfully urged extension of the right to counsel to all defendants threatened with im-
prisonment. He maintained that a public defender could handle 1000 misdemeanor cases
per year, and he also argued that with an extended right to counsel "there could be a lot
more guilty pleas." 10 CR1m5.L. REP. 4201 (1972).
87. This point has been made elsewhere in greater detail. E.g., Dahlin, Toward a
Theory of the Public Defender's Place in the Legal System, 19 S.D.L. REV. 87 (1974); D.
OAKS, supra note 85, at 238-40; Skolnick, supra note 27, at 64, 67.
1208
offenses more often than did the clients of public defenders. 8 How-
ever, Silverstein's study for the American Bar Foundation did not con-
trol for such variables as the offense charged, the defendant's bail status,
and his prior criminal record. Studies that have controlled for these
variables have usually found only minor differences in sentencing out-
comes between cases in which public defenders were appointed and
cases in which private attorneys were retained. s
Finally, statistical comparisons of public defenders and private at-
torneys suffer from their generality. Private attorneys commonly in-
clude the most respected trial practitioners as well as the most pa-
thetic "cop-out hacks." To say that the performance of a defender
office matches the "standard" of the private bar may thus be only
to say that most defenders are neither as bad as the worst hangers-on
nor as good as the best private attorneys. Professor Jerome H. Skolnick
has suggested that attorneys should simply be classified as "coopera-
tive" or "adversary" on the basis of their styles of practice. In a study
of a major California jurisdiction, Skolnick found that the overwhelm-
ing majority of both private attorneys and public defenders fell into
the "cooperative" category, and he concluded that general comparisons
of public defenders and private attorneys were very likely to be mis-
leading.10 Moreover, the quality of defender offices varies greatly from
one jurisdiction to the next, and although variations in performance
within a single defender office usually seem less extreme than those
within the private defense bar, these variations remain significant.
Jackson B. Battle observed that in the Denver Public Defender office,
1209
"one felony court defender incurred the displeasure of the entire ju-
diciary partly because he took as many as 20 percent of his cases to
trial. At the other extreme was a defender who had been assigned to
felony court for three months and had yet to try a case." 0 '
Nevertheless, the public defender does occupy a significantly dif-
ferent position in the criminal justice system than the private defense
attorney. Although he is, of course, subject to many of the same pres-
sures and temptations as the private attorney, he is free of others; and
he also confronts some pressures, problems, temptations, limitations,
and opportunities of his own. His institutional position apparently
gives him both advantages and disadvantages in the plea-bargaining
2
process, and I therefore turn to an assessment of this position.
The crudest and most obvious form of favoritism for certain clients
might be a kind of express bargaining, the trade-out, in which a de-
1210
94. I have heard the term "trade-out" used simply as a synonym for plea bargaining,
but the more common meaning seems to be the one suggested at this point in the text.
95. Accord, D. NEUBAUER, supra note 27, at 220; Comparison of Defense Relationships,
supra note 21, at 131.
96. "A lawyer is always offered a package deal in a joint trial situation," agreed Oak-
land's Herman W. Mintz. He proceeded to describe a case in which he had even
abandoned an appeal for a convicted client in exchange for a dismissal of charges against
another.
In United States v. Truglio, 493 F.2d 574 (4th Cir. 1974), a defense attorney arranged
a "package plea agreement" for five defendants. Under the agreement, two defendants
pleaded guilty to felonies and one to a misdemeanor, while charges against the remain-
ing two defendants were dismissed. Before the pleas were entered, the attorney told the
court that one of the defendants, Truglio, had been reluctant to accept the agreement
and to plead guilty to a felony. The Assistant United States Attorney immediately ob-
jected that if any of the defendants' guilty pleas were withdrawn or rejected by the
court, "all bets were off."
Truglio did plead guilty, but he reconsidered and filed a motion to withdraw his plea
prior to sentencing. He testified without contradiction about the pressures that his
attorney had employed to induce the plea. The attorney had told Truglio that if he
refused to accept the proposal, all five defendants would go to the penitentiary. More
specifically, Truglio would be responsible for the fact that Karen Bonacci would serve
10 years in prison rather than a term of probation. In addition, the attorney threatened
to withdraw as Truglio's counsel if he did not "cooperate." In this situation, the Fourth
Circuit ruled that the attorney suffered from a conflict of interest and that the trial
court should have permitted Truglio to withdraw his plea. See Gallarelli v. United
States, 441 F.2d 1402 (3d Cir. 1971); McCranie v. State, 242 So. 2d 202 (Fla. Dist. Ct. App.
1970).
1211
1212
and quite apart from the quality of the choice involved, it is hard to
see how trade-outs of one defendant for another further any rational
objective of the criminal process. The fact that a person has "chosen"
to go to prison in place of someone else surely cannot be sufficient
reason for sending him there.10 0 Nevertheless, courts have repeated
Judge Aldrich's language in numerous cases in which defendants have
"taken the heat" for confederates, friends, and family members.10 1
586, 598, 143 N.V.2d 553, 559 (1966). See generally Lynum v. Illinois, 372 U.S. 528, 531
(1963) (confession involuntary when suspect was threatened that she "could get 10 years
and the children could be taken away"); Rogers v. Richmond, 365 U.S. 534 (1961) (threat
to interrogate suspect's wife-conviction invalidated because trial court used improper
standard in judging voluntariness). There are, however, some contrary cases. See generally
3 J. WIGMORE, EVIDENCE § 839 n.4 (. Chadbourn rev. 1970).
100. In Dickens's A Tale of Two Cities, Sydney Carton used stealth to take the place
of Charles Darnay at the guillotine:
"Are you dying for him?" she whispered.
"And his wife and child. Hush! Yes."
"0 you will let me hold your brave hand, stranger?"
"Hush. Yes, my poor sister; to the last."
Had the jurisprudence of the guilty-plea system been accepted by French Revolutionary
tribunals, there would have been no need for hushes. This noble transaction might have
been entirely open. "If a person elects to sacrifice himself for such motives, that is his
choice," a judge might have said.
101. For example, in Latham v. State, 439 S.W.2d 737, 739 (Mo. 1969), the defendant
and his stepsons were charged with stealing soybeans from a schoolhouse. The de-
fendant pleaded guilty to this crime and was sentenced to a five-year term of imprison-
ment. On a motion to vacate his conviction, he maintained that he was innocent and
that he had pleaded guilty only in response to a promise that his stepsons would be
released on probation-an action that permitted the stepsons to care for the defendant's
wife. The state apparently conceded the making of the promise, and the stepsons sup-
ported the defendant's claim of innocence by admitting that they alone had broken into
the schoolhouse. The Missouri Supreme Court nevertheless concluded that these cir-
cumstances did not constitute "a sufficient reason in law to invalidate a plea of guilty."
Accord, United States v. Carlino, 400 F.2d 56 (2d Cir. 1968), cert. denied, 394 U.S. 1013
(1969); Allen v. Rodriguez, 372 F.2d 116 (10th Cir. 1967); Cortez v. United States, 337
F.2d 699 (9th Cir. 1964), cert. denied, 381 U.S. 953 (1965); McGuffey v. Turner, 267 F.
Supp. 136 (D. Utah 1967); Padgett v. United States, 252 F. Supp. 772 (E.D.N.C. 1965);
Thomas v. Warden, 236 F. Supp. 499 (D. Md. 1964), aff'd, 350 F.2d 395 (4th Cir. 1965);
People v. Duran, 498 P.2d 937 (Colo. 1972); State v. Baumgardner, 79 N.M. 341, 443
P.2d 511 (1968); State v. Hansen, 79 N.M. 203, 441 P.2d 500, 504 (1968); Combs v. Turner,-
25 Utah 2d 397, 483 P.2d 437 (1971).
James Vorenberg, Reporter for the American Law Institute's Model Code of Pre-
Arraignment Procedure, once proposed that the Code prohibit concessions to any person
other than the defendant as an inducement for the defendant's plea of guilty. The
Council of the Institute, however, unanimously rejected this suggestion. ALI, A MODEL
CODE OF PRE-ARRLIGNMENT PROCEDURE 68, 106-07 (Tent. Draft No. 5, 1972).
A law school casebook asserts, "There is no doubt that threats ... of prosecution of
family members will invalidate a plea of guilty made in response to those threats." The
book cites no authority, however, and its statement is apparently based on wishful
thinking. F. REMINGTON, D. NEWMAN, E. KIMBALL, M. MELLI & H. GOLDSrEIN, CRIMINAL
JUSTICE ADMINISTR'ioN 568 (1969).
At least three courts have questioned Judge Aldrich's analysis in Kent v. United States,
although they have not had occasion to disavow the Kent ruling. In Crow v. United
States, 397 F.2d 284 (10th Cir. 1968), the defendant alleged that a prosecutor had threat-
ened to file charges against an alleged accomplice unless the defendant pleaded guilty.
The court of appeals held that the defendant was entitled to an evidentiary hearing on
the truth of this assertion, because the prosecutor's threat, coupled with other circum-
stances, might have coerced the defendant's plea.
Similarly, in State ex rel. White v. Gray, 57 Wis. 2d 17, 203 N.W.2d 638 (1973), the
defendant alleged that he had pleaded guilty in exchange for a dismissal of charges
against his younger brother. The Wisconsin supreme court ordered an evidentiary hearing
1213
on this issue and said, "We conclude that the voluntariness of a plea bargain which
contemplates special concessions to another-especially a sibling or loved one-bears
particular scrutiny...." Nevertheless, the court found it unnecessary to decide whether
these concessions were inherently improper.
The Pennsylvania supreme court questioned the Kent analysis in the context of a case
in which the defendant had denied his guilt at the time that he pleaded guilty. Com-
monwealth v. Dupree, 442 Pa. 219, 222, 275 A.2d 326, 328 (1971). The court held that if
a promise not to prosecute the defendant's wife constituted the "primary reason" for the
defendant's plea of guilty, the plea would be invalid. See also People v. Hollman, 12
Mich. App. 231, 162 N.W.2d 817 (1968); People v. Smith, 37 Mich. App. 264, 194 N.W.2d
561 (1971) (hearing required on whether promise not to prosecute defendant's wife
rendered plea involuntary).
102. See ABA STANDARDS, supra note 55, § 6.2(c): "It is unprofessional conduct for a
lawyer to seek or accept concessions favorable to one client by any agreement which is
detrimental to the legitimate interests of any other client."
103. E.g., United States v. Lovano, 420 F.2d 769, 772 (2d Cir.), cert. denied, 397 U.S.
1071 (1970); Chavira Gonzales v. United States, 314 F.2d 750 (9th Cir. 1963); Common-
wealth v. Resinger, 432 Pa. 398, 248 A.2d 55 (1968).
Some courts have suggested that conflicts of interest are less likely to arise in the
guilty-plea process than in the trial process-a view that this article contends is exactly
backwards. Williams v. State, 214 So. 2d 29 (Fla. Dist. Ct. App. 1968); Mitchell v. State,
213 So. 2d 289 (Fla. Dist. Ct. App. 1968); State v. Reppin, 35 Wis. 2d 377, 151 N.W.2d
9 (1967). A few courts have also refused to find conflicts of interest in guilty-plea cases un-
der circumstances in which it would plainly have been improper for an attorney to rep-
resent a particular defendant at trial. E.g., Pressly v. State, 220 Md. 558, 155 A.2d 494
(1959). And other courts have employed an even more direct method of shunting aside
claims of conflict of interest in guilty-plea cases. They have held that a voluntary guilty
plea simply waives any claim of conflict of interest. United States v. Harbolt, 426 F.2d
1346 (5th Cir. 1970); Curry v. Burke, 404 F.2d 65, 67 (7th Cir. 1968); Vanater v. Boles, 377
F.2d 898 (4th Cir. 1967); Dukes v. Warden, 161 Conn. 337, 288 A.2d 58 (1971), aff'd. 406
U.S. 250 (1972). This approach would, perhaps, be unobjectionable if courts automatically
concluded that a conflict of interest on the part of a defendant's attorney rendered the
defendant's guilty plea involuntary. That circular formula, however, is not what the
courts have had in mind.
104. Although this conflict of interest at the plea bargaining and sentencing stages
constitutes a significant reason for prohibiting multiple representation altogether, the
practice also presents other dangers:
The prosecutor may be inclined to accept a guilty plea from one of the co-defendants,
... but this might harm the interests of the other defendant. The contrast in the
dispositions of their cases may have a harmful impact on the remaining defendant;
1214
the one who pleads guilty might even, as part of the plea agreement, consent to
testify against the co-defendant. Moreover, the very fact of multiple representation
makes it impossible to assure the accused that his statements to the lawyer are given
in full confidence. Defense counsel necessarily must confront each with any con-
flicting statements made by the other.... In this situation he may find that he must
"judge" his clients to determine which is telling the truth, and his role as advocate
would inevitably be undermined as to one if not both defendants.
ABA STANDARDS, supra note 55, § 3.5, comment at 213-14. The "standard" to which this
commentary is attached merely provides: "The potential for conflict of interest in rep-
resenting multiple defendants is so grave that ordinarily a lawyer should decline to act
for more than one of several co-defendants except in unusual situations when, after
careful investigation, it is clear that no conflict is likely to develop and when the several
defendants give an informed consent to such multiple representation."
105. 406 U.. 250 (1972).
106. Id. at 254.
1215
107. See Glasser v. United States, 315 U.S. 60, 70 (1942). In Dukes, the defendant,
prior to pleading guilty, had sought unsuccessfully to discharge his attorney, and his
"yes sir" expression of satisfaction was apparently exacted by the trial court as a condi-
tion of receiving his plea. Moreover, a criminal defendant cannot be truly aware of the
dangers of multiple representation until he knows the twists, the turns, and the subtleties
of the plea-negotiation and sentencing processes, and it therefore seems doubtful that
many defendants are in a position to make an intelligent choice. See Campbell v. United
States, 352 F.2d 359, 360 (D.C. Cir. 1965) ("defendants are unlikely to be sufficiently
aware of their rights to object to a possible conflict of interest"); Holland v. Boles, 225
F. Supp. 863 (N.D.W. Va. 1963) (waiver of conflict of interest requires, not merely an
awareness of the facts, but a full appreciation of the legal consequences). In Dukes, the
Supreme Court did not focus on this question of waiver, just as it did not focus on any
of the other issues in the case. Instead, it recited a number of factual circumstances that
seemed adverse to the defendant and announced its result.
108. The Court thus avoided a difficult issue. If a defense attorney were to disparage
a client long after the client had been convicted and sentenced, the attorney's action-
however unseemly-would surely provide no basis for invalidating the already final con-
viction. If, however, in the absence of a plea agreement, an attorney were to disparage a
client before a judge who would soon determine the client's sentence, it would seem
plain that the client had not received the effective assistance of counsel in the sentencing
process.
The situation in Dukes falls somewhere between these two illustrations. In legal theory,
of course, it closely resembles the second case: although the defense attorney had secured
a plea agreement, the defendant had merely agreed to plead guilty in exchange for a
recommendation by the prosecutor concerning his sentence. The bargain was in no
sense binding upon the court, and the judge remained free to impose a sentence either
more lenient or more severe than that contemplated by the agreement. The attorney's
harsh remarks about his client thus seemed likely to prejudice the client before the
judge who was about to sentence him.
In reality, however, trial courts so rarely depart from the sentences recommended by
prosecutors pursuant to plea agreements that the situation in Dukes may more closely
resemble the first case. When the defense attorney disparaged his client, he probably
assumed that the client's case had been finally resolved through plea bargaining and that
his remarks could therefore not harm the client's interests. In all probability, moreover,
the defense attorney was right: the chance that his disparagement influenced the de-
fendant's sentence seems remote.
To adopt this "realistic" analysis would be to recognize that today's guilty-plea system
has largely converted such things as presentence reports and sentencing hearings into
pious gestures designed to ratify foreordained results. The Supreme Court might therefore
have been torn between a desire to preserve the fiction that judges still have a significant
role in the sentencing process and a desire not to allow a defendant who "got a good
deal" to escape on the basis of the "technicality" that he had not yet been sentenced.
1216
and the Supreme Court was certainly in no position to read his mind.
It does seem entirely possible that the defendant in Dukes suffered
no injury because his lawyer represented the alleged accomplices. The
lawyer may, indeed, have been a master of manipulation-first secur-
ing the best possible agreement for the defendant, then turning this
agreement to the advantage of his other clients, and finally maneuver-
ing his way through the defendant's sentencing hearing without up-
setting the earlier bargain. However, it is also possible that from the
outset the lawyer saw the defendant's guilty plea as a "selling point"
for his other clients. If these clients did in fact "capitulate" the de-
fendant into his plea, the lawyer just might have had a hand in it.
In a sense, therefore, the ultimate issue in Dukes was who bore the
burden of proof on the question of prejudice. Without discussing this
issue explicitly, the Court resolved it by observing that "nothing in
the record" indicated that the attorney's alleged conflict of interest
had influenced the defendant's plea.
This statement and others in the Court's opinion depart significantly,
at least in tone, from what had previously been the leading decision
on conflicts of interest in criminal cases. In its 1942 decision in Glasser
v. United States, 0o the Supreme Court relied upon a defense attorney's
"possible" conflict of interest to invalidate a conviction.
It said:
1217
The reason why private attorneys do not follow the same procedure
is equally simple. Two clients usually pay more than one, and three
pay more than two. This reason seems plainly inadequate to justify
multiple representation, in light of the inherent conflicts of interest
that arise during plea negotiation and sentencing proceedings. At these
stages of the criminal process, it is almost invariably to each defendant's
advantage to cast the primary blame upon "the other guy"-or, at least,
to minimize such charges if they are made against him. One way or
another, the relative culpability of each individual defendant is always
an underlying issue."1
111. The failure of the courts simply to prohibit multiple representation is not easy
to explain. Judicial opinions have recognized that "the possibility of a conflict of interest
between two defendants is almost always present to some degree," Morgan v. United
States, 396 F.2d 110, 114 (2d Cir. 1968), that there is, in fact, "usually a probability of
conflicting interests," Maye v. Commonwealth, 386 S.W.2d 731, 733 (Ky. Ct. App. 1965),
that "an individual defendant is rarely sophisticated enough to evaluate the potential
conflicts," Campbell v. United States, 352 F.2d 359, 360 (D.C. Cir. 1965), and that "the
burden placed upon the trial judge ... to decide before trial whether separate counsel for
co-defendants are required is an exceedingly onerous one," Ford v. United States, 379
F.2d 123, 125 (D.C. Cir. 1967). Moreover, even post-trial claims of conflict of interest
remain difficult to resolve. The United States Court of Appeals for the District of
Columbia Circuit once suggested the predicament of an appellate court in a statement
that has special force for guilty-plea cases: "Like the famous tip of the iceberg, the record
may not reveal the whole story." Lollar v. United States, 376 F.2d 243, 246 (D.C. Cir. 1967).
Despite this recognition of the problem, courts have failed to adopt the obvious solu-
tion. Without asserting any affirmative justification for multiple representation, they
have insisted that a per se rule would be inappropriate. E.g., United States v. Alberti,
470 F.2d 878 (2d Cir. 1972), cert. denied, 411 U.S. 919 (1973); Pressly v. State, 220 Md.
558, 155 A.2d 494 (1959). On the very rare occasions when the courts have sought justifica-
tion for multiple representation, moreover, they have merely observed that this practice
tends to simplify the trial process and to preserve a defendant's freedom to select the
attorney he desires, even one retained by another party in the same case. See Campbell
v. United States, 352 F.2d 359 (D.C. Cir. 1965). It could equally be argued that when, in
the interest of economy, both parties to a divorce action or other civil case seek to hire
the same attorney, they should be allowed this "freedom of choice."
The attitude of many state courts concerning problems of joint representation is one
of utter indifference. See, e.g., People v. Seymour, 512 P.2d 635 (Colo. 1973); McCrannie
v. State, 242 So. 2d 202 (Fla. Dist. Ct. App. 1970); Delany v. State, 475 S.W.2d 102 (Mo.
1971), cert. denied, 406 U.S. 948 (1972); but see Commonwealth v. Breaker, 456 Pa. 341,
318 A.2d 354 (1974); Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 176 A.2d 641
(1962). Nonetheless, a few federal courts have adopted partial procedural solutions. One
has said that under the Federal Criminal Justice Act, 18 U.S.C. § 3006A(b) (1970), separate
counsel should initially be appointed for each indigent co-defendant, Ford v. United
States, 379 F.2d 123 (D.C. Cir. 1967), and another has said that, in any case of joint rep-
resentation, the trial judge should conduct a "careful inquiry," to satisfy himself "that no
conflict of interest is likely to result and that the parties involved have no valid objection."
United States v. Deberry, 487 F.2d 448 (2d Cir. 1973); United States v. Alberti, 470 F.2d
878 (2d Cir. 1972); United States v. Lovano, 420 F.2d 769, 772 (2d Cir.), cert. denied, 397
U.S. 1071 (1970); Morgan v. United States, 396 F.2d 110, 114 (2d Cir. 1968); see Campbell
v. United States, 352 F.2d 359 (D.C. Cir. 1965).
However, a "careful inquiry" into potential conflicts of interest does not provide an
adequate solution. It obviously consumes judicial resources that could be saved by a
per se rule, and it is not apparent that the procedure gains anything that justifies the
cost. To the contrary, even the defenders of multiple representation would not maintain
that the presence of separate counsel would work serious injustice in any case. A pretrial
hearing, by contrast, is necessarily predictive and prone to error, and despite the best
efforts of a trial judge, unforeseen conflicts of interest may develop at trial or sentencing
proceedings. Indeed, what was not apparent at a pretrial hearing may become apparent
1218
The allegation that public defenders bargain away the rights of some
defendants in return for concessions to others thus might better be
leveled at some private defense attorneys. At a more subtle, psychologi-
cal level, however, charges of public-defender favoritism for certain
clients are harder to refute. A New York prosecutor put it this way:
A public defender cannot help but evaluate his clients, and the
vigor of his advocacy does vary from case to case. It would be
wrong, however, to conclude from this fact that the public de-
fender provides less effective representation than the private at-
torney. If a public defender says to a prosecutor, "Look, I really
think that this person is innocent," the prosecutor will usually take
a hard look at the case. The odds are strong that the case will be
dismissed-stronger than if the defendant had hired a private
attorney. Thus a public defender may provide more effective
representation for the one client in one hundred who really is
innocent.
only upon appellate review. Litigation and relitigation may thus become necessary to
resolve a problem that could easily have been eliminated at the outset. Cf. Lollar v.
United States, 376 F.2d 243, 248 (D.C. Cir. 1967) (Bazelon, C.J., dissenting). Finally and
most importantly, a pretrial hearing on potential conflicts of interest requires inquiry
into the facts of the case, the available evidence, and the plans and strategies of the
variotus defendants and their attorney or attorneys. As Judge Leonard P. Moore has
observed, a pretrial inquiry into defense strategies seems likely to violate the defendant's
Sixth Amendment right to counsel. United States v. DeBerry, 487 F.2d 448, 456 (2d Cir.
1973) (Moore, J., dissenting). Before adopting its current requirement of a careful pre-
trial inquiry into possible conflicts of interest, the Second Circuit had expressly rejected
this approach for reasons similar to Judge Moore's, United States v. Paz-Sierra, 367 F.2d
930, 932 (2d Cir. 1966), cert. denied, 386 U.S. 935 (1967), but the Second Circuit did not
advert to this objection when it changed its rule two years later.
The administrative simplicity of a per se rule does not constitute the primary reason
for its adoption. Rather, Chief Justice Traynor made the basic point in an opinion for
the California Supreme Court:
Conflicts of interest necessarily exist when the jury must fix the penalty for more
than one defendant. Often the strongest argument that separate counsel can make
on the issue of penalty is that his client was less culpable than the others.... In
addition, he must be free to stress particular mitigating elements in his client's back-
grotnd or other individual mitigating factors that may not apply to a codefendant.
Counsel representing more than one defendant is necessarily inhibited in making
such arguments and in presenting evidence to support them. He cannot simultaneous-
ly argue with any semblance of effectiveness that each defendant is most deserving
of the lesser penalty.
People v. Chacon, 69 Cal. 2d 765, 775, 447 P.2d 106, 112, 73 Cal. Rptr. 10, 16 (1968). Al-
though the standard of conflict of interest articulated in this opinion is far more sensitive
than that of most jurisdictions, a recent decision of the California supreme court em-
phasized that even that court has not adopted a per se rule against representing more
than one defendant in a single sentencing proceeding. In re Watson, 6 Cal. 3d 831, 494
P.2d 1264, 100 Cal. Rptr. 720 (1972).
1219
fender office for his county. Willard Shea was appointed as the first
public defender, and in an address in 1969, the Chief Justice recalled
their association:
When [Shea] was appointed, he came over to my office to be-
come better acquainted. I said to him, "Mr. Shea, you and I are
going to be sitting on opposite sides of the table for a long time,
I hope, and we are going to have different viewpoints on the
cases that come up. But I want to assure you that I do not want
to convict any innocent man. And I am going to give you credit
for not wanting to have any jail deliveries here, either. There
ought to be a modus vivendi for us so that we can both do our
duty, and, at the same time, be considerate of each other and of
each other's duties."
He said, "That is fair enough, and I agree with that."
So, we made the agreement that, if at any time he believed in
his heart that he was representing an innocent man, he could
come to me, tell me so, and I would show him everything we had
in the case. And if, after seeing the complete file, he still ad-
hered to his belief that he had an innocent man, I would go with
him to the judge and tell the judge that his, the public defender's,
belief alone constituted a reasonable doubt in my mind as to the
guilt of the man, and I would move to dismiss the case in the
interest of justice. Mr. Shea said that that arrangement was agree-
able to him.
During the seven or eight years we worked together, he would
come to my office about five or six times a year and tell me that
he thought he had an innocent man. And I would say to him,
"Now, Willard, don't tell me that I have a weak case, don't tell
me that I can not convict this man. You must tell me that, in your
heart, you believe you are representing an innocent man."
Mr. Shea would reply, "Yes, that's right."
I would then show Mr. Shea everything we had in the file
and ask him what he thought about it. Well, in more than half
the cases, he would change his mind and would say, "Well, I
guess we will go to trial." But, two or three times a year, he would
adhere to his belief that he had an innocent man, and every
time we would go down to the trial judge. I would show the
trial judge what we had and would tell him that the opinion of
the public defender was sufficient to create a reasonable doubt in
my mind, and in the minds of the jurors as well, and I would
request the judge to dismiss the case in the interest of justice.
The judge always complied with my request. We went along for
seven or eight years in that manner having a most pleasant asso-
ciation but, I assure you, a very active one, because he was vigor-
ous in the defense of his clients. 11 2
112. Remarks of the Chief Justice to the National Defender Conference, in REPORT OF
THE PROCEEDINGS OF THE NATIONAL DEFENDER CONFERENCE 109, 110-11 (1969).
1220
1221
the merits of each client's case and to vary his representation accord-
ingly, his promises to his clients are false. The attorney may simply
place a premium upon his clients' ability to "con" him, or at least the
clients themselves may see it that way." 6 In any event, this approach
to the practice of law converts an attorney's clients into supplicants.
It encourages each defendant to view his lawyer as one more official
who must be persuaded to be on his side. Under the classic view, by
contrast, the lawyer should be there to begin with. 117
Public defenders "may provide more effective representation for
the one client in one hundred who really is innocent," but they also
pay a .price." 8 The practical consequences of "mutual trust" between
a prosecutor and a defender (not of each other's honesty but of each
other's concepts of justice) may become indistinguishable from those
of a massive trade-out. An advantage to one client arises because the
defender does not make the same effort for the others. Although never
expressed in terms of explicit bargaining, this implicit trade-out may
supply a basic governing principle in most negotiations between public
defenders and prosecutors. As a convict in Connecticut summarized
his perceptions of our system of criminal justice, "One hand washes
the other.""19
116. See generally J. CASPER, AMERICAN CRIMINAL JusTIcE: THE DEFENDANT'S PERSPEC-
TIVE, ch. 4 (1972); Comparison of Defense Relationships, supra note 21, at 131: "A remark
often heard from inmates at county jail was that public defenders were 'cop-out men'
who would 'sell them down the river.' These clients seemed especially afraid that if they
admitted their guilt to a defender and told him the truth, he would cooperate in seeing
them punished."
117. Of course the admonition to serve one's clients rather than judge them runs
counter to ordinary human instincts. It would probably be unrealistic to expect any
attorney's representation-in any system of justice-to be wholly unaffected by his own
evaluation of his clients and their conduct. In this respect, the admonition not to judge
one's clients seems no different from other ethical principles-for example, the com-
mandment not to covet thy neighbor's wife. The fact that an ethical principle con-
travenes natural instincts and probably could never be fully realized does not render it
less valuable.
118. "I am going to give you credit for not wanting to have any jail deliveries here,
either," said Chief Justice Warren, and if the Public Defender, Mr. Shea, had ever acted
to call this assumption into question, the "modus vivendi" to which the Chief Justice
referred might not have persisted throughout seven or eight years of a "most pleasant
association."
Six of nine public defenders interviewed by Donald C. Dahlin in San Bernardino
County, California, expressed agreement with the following proposition: "A Public De-
fender should strengthen his relationship with the District Attorney's office over a
series of felony cases by contending only major points in negotiations." Dahlin, supra
note 87, at 98.
119. J. CASPER, supra note 116, at 105. The convict explained that if the prosecutor
and defender could "ease the caseload by the prosecutor giving a few, the public defender
giving a few, it's a little better for everyone concerned." For example, a defender might
not press a "little technicality" in the case of a plainly guilty defendant, and he might
justify this action to himself by asking a favor for a "young kid." Casper's study indicates
that this convict's impressions of the relationship between prosecutors and public de-
fenders are shared by many "consumers" of defender services in Connecticut.
1222
Private attorneys, too, may evaluate their clients and represent some
more vigorously than others. The guilty-plea system encourages all
lawyers to view themselves partly as administrators and as judges rather
than solely as advocates. Indeed, private attorneys may sometimes pick
and choose among their clients on a far more invidious basis than
public defenders. Jackson B. Battle reports this statement of a Texas
lawyer:
"You naturally use what influence you have for the client who
pays you well. If the D.A. owes you a favor, you don't waste it
on a court-appointed case. You've got to convert your connec-
tions into money. Maybe you shouldn't but you will . ..
"Say Jose Gonzales is charged with assault and I'm appointed to
defend him. Well, the D.A. might owe me a favor. But I'm not go-
ing to use that favor to get Jose off. Hell no! Because Roberto
Sosa is paying me a substantial fee to defend him against a charge
of D.W.I. Now which case do you think I'm going to try to get
dismissed? If I spent my influence on Jose and then tried to get
a favor done for Roberto, the D.A. would tell me, 'Uh-uh, now
you owe me one.' "120
1223
We have been dealing with the prosecutors for a long time, and
they know we are not going to ask them to do something they
should not do. Moreover, we have a reputation for being able to
12 3
evaluate a case. They trust us.
B. Discovery
The extent to which a defense attorney can learn the strength of
the prosecutor's case against his client has an important influence
on the plea-negotiation process, and in general, prosecutors seem
1224
124. Most private attorneys in Philadelphia did, however, report that they too ob-
tained useful information from the prosecutors, and in at least a few categories of cases,
the District Attorney's files are not "officially closed." See J. Maynard, Criminal Discovery
in Philadelphia: The Law, The Practice, A Proposal, Jan. 5, 1970 (unpublished paper
on file at the University of Texas Law School Library).
125. Nevertheless, only 22 of 49 defenders surveyed by the American Bar Foundation
reported that it was easier for them to obtain information from prosecutors than it would
be for other attorneys. Five thought that they had a more difficult time; three said that
they did not know; and 19 thought that they were treated in the same fashion as other at-
torneys. L. SILVErEIN, supra note 85, at 48. Bul see M. MAYER, supra note 13, at 165.
126. J. Maynard, supra note 124; Skolnick,. supra note 27, at 52; Comparison of
Defense Relationships, supra note 21, at 11-18; In Search of the Adversary System, supra
note 14, at 67-80.
127. Comparison of Defense Relationships, supra note 21, at 112. Indeed, in Denver, a
few combative public defenders may have so antagonized the prosecutor's office that
the general advantage in discovery probably belongs to private attorneys. See id. at 117,
118-19.
128. J. Maynard, supra note 124, at 6.
129. In Search of the Adversary System, supra note 14, at 73.
1225
130. Several of the attorneys interviewed by Jackson B. Battle conceded that they
made reciprocal disclosures to their opponents:
But remember, this discovery relationship works both ways. He [the D.A.] gets in-
formation from me that he would never, ever, be entitled to otherwise.
Id. at 76. Most of the attorneys whom Battle interviewed in his Texas and Colorado
studies did not, however, adopt this position. As Battle explained, "The general response
was that an attorney had to be truthful with a prosecutor, had to maintain a reputation
for credibility, but didn't have to reveal information that could be detrimental to his
client.... This sounded good when they said it fast." Id. at 77. See generally Platt,
Schechtner & Tiffany, supra note 114, at 630-31.
Of course a defense attorney's ignorance and lack of preparation may limit his ability
to disclose information that would be damaging to his client. A public defender in
Denver reported:
There's usually not much danger of my revealing facts detrimental to my client
because I usually know little or nothing about my client or the situation until I talk
to the district attorney.... I never know enough about the case at the plea bargain-
ing stage to give up anything that could hurt him.
A Comparison of Defense Relationships, supra note 21, at 128.
131. In Search of the Adversary System, supra note 14, at 78. The attorney who
described this tactic explained that he would use it only in "a rare case." See also the
statement of a Denver lawyer in A Comparison of Defense Relationships, supra note 21,
at 128:
My way of pitching to the D.A. may entail making them think that I dislike a client,
that I think he's a bum, that he's just as much a burden to me as he is to them.
This is just using psychology to make them think we're both working toward the
same ends. The D.A.'s wield so much power that ypu have to learn how to play
them.
132. One court has reacted negatively to the prospect that defendants might attend
plea-negotiation sessions in the chambers of trial judges:
We recognize that occasional situations may arise where it is considered necessary
for the attorneys to discuss [negotiated pleas of guilty] with the judge. However, in
those instances the defendant should never be present. This because of the ever-
present danger that he may not understand the legal discussion and may be misled
1226
sume on behalf of their clients does not always reflect the clients'
desires.
I repeat, however, that there is usually no firm or automatic un-
derstanding in plea negotiation that discovery must be a reciprocal
process, and similarly, there is usually no firm or automatic under-
standing that a defense attorney should not use at trial what he dis-
covers. 133 Nevertheless, some implicit limitations often develop. A
Philadelphia prosecutor reported, for example, that he would refuse
to reveal police offense reports to a defense attorney who might "blow
out of proportion" disparities between those reports and police testi-
mony at trial. He explained that offense reports were prepared hastily
and that minor inaccuracies were simply to be expected. Nevertheless,
the prosecutor plainly reserved to himself the power to determine what
use a defense attorney might properly make of the information that
34
the prosecutor had supplied.
Although the discovery process may be influenced by a defense
attorney's own disclosures to the prosecutor and by his circumspection
in using at trial what he discovers, a far more important factor is the
defense attorney's willingness to enter guilty pleas on behalf of his
clients. This factor assumes its importance, not because prosecutors
expect guilty pleas in exchange for discovery privileges, but because
tactical considerations strongly favor disclosure in most cases in which
guilty pleas seem likely.' 3 5
When defense attorneys are allowed to examine the prosecutor's
files, they do so with *different objectives. Some, of course, are pri-
marily interested in learning the weaknesses of the prosecution case
and in gathering information that will be helpful in preparing a de-
thereby, and may also erroneously conclude that he could not obtain a fair trial in
the event he should later go to trial before that judge.
State v. Tyler, 440 S.W.2d 470, 474 (Mo. 1969).
133. Apparently, however, there are exceptions. See H. SuBiN, supra note 33, at 47
("there is a sort of standing rule that confidences shared during the negotiations will not
be used in court").
134. J. Maynard, supra note 124, at 6-7.
135. This fact may help to explain why prosecutors are more reluctant to disclose in-
formation in serious, highly publicized cases than in routine matters. John D. Nunes,
the Public Defender in Oakland, maintained that because of their "better personal
relations with assistant district attorneys," public defenders had a distinct advantage in
the discovery process. "Ordinarily," he said, "prosecutors share all the information with
us that the law permits. The only exception arises in homicide cases, where the defender,
like everyone else, must get an order."
This experience was common among both the public defenders and the private at-
torneys whom I interviewed, but the opposite policy has apparently been adopted in
Philadelphia. There, the District Attorney's files are routinely open in homicide cases
but not in other cases. Prosecutors explained this distinction by noting their concern that
innocent defendants not be convicted in homicide cases. They failed to explain why they
were not equally concerned about the conviction of the innocent in less serious cases.
J. Maynard, supra note 124, at 9.
1227
136. Prosecutors, of course, do not usually describe their policies in exactly these
terms, but some do report that they are reluctant to make disclosures to attorneys who
"go off half-cocked." Id. at 7. See B. GROSSMAN, THE PROSECuTroR 75-77 (1969) (similar
observations concerning Canadian practice).
137. George Karam, an Assistant District Attorney in Houston, explained, "We
[permit defense attorneys to examine our case files] as a matter of courtesy. If they [the
defense attorneys] use it to see if their client is lying or what our sentence recommenda-
tion is based on, they may look. If they are looking for a loophole, they don't see it."
Johnson, Sentencing in the Criminal District Courts, 9 Hous. L. REV. 944, 988-89 (1972).
Another Houston prosecutor said that he would not permit a defense attorney to inspect
his file if he thought that the case would go to trial. Id.
138. See Brennan, The Criminal Prosecution:Sporting Event or Quest for Truth, 1963
WASH. U.L.Q. 279, 282; Pye, The Defendant's Case for Mfore Liberal Discovery, 33 F.R.D.
82, 85 (1963); Note, Preplea Discovery: Guilty Pleas and the Likelihood of Conviction at
Trial, 119 U. PA. L. REV. 527, 530 (1971).
The impression of experienced public defenders in Denver, according to Jackson B.
Battle, was that "prosecutors would not let them have information that would be
beneficial to their case but only that which might induce their clients to plead guilty."
One of these defenders remarked: "It's all based upon their fear of going to trial.
Whether they hate me or not, they'll open up their file if they can avoid trial." A Com-
parison of Defense Relationships, supra note 21, at 119-20.
It might be supposed that defense attorneys would quickly "catch on," and that they
would view any denial of discovery as the equivalent of a confession that the prosecutor's
case was weak. In this respect, however, public defenders have an apparent advantage
over private defense attorneys, an advantage that may help to explain their generally
favored position in the discovery process. When a prosecutor closes his file to a private
attorney, the attorney cannot be entirely certain that a weakness in the prosecutor's case
1228
has motivated this action; perhaps the prosecutor was annoyed with the attorney for
some past conduct; perhaps he was simply a capricious and perverse fellow; or perhaps
it really was a "special favor" when the prosecutor permitted him to examine the file
in last month's case. If, however, a prosecutor were to deny discovery to a public de-
fender in one of the defender's half-dozen cases for the afternoon, the defender could be
reasonably certain that something in the case itself had induced this turnabout in
prosecutorial policy.
139. See Traynor, Ground Lost and Found in Criminal Discovery, 39 N.Y.U.L. REv.
228, 237 (1964). The general advantage that public defenders seem to enjoy in the dis-
covery process could, perhaps, be neutralized by more effective bargaining on the part of
private attorneys. Most private attorneys seem to accept statements of "official policy"
uncritically and are grateful for whatever information the prosecutors give them. At most,
these attorneys may attempt to induce additional disclosures by granting reciprocal con-
cessions to the prosecutors. A few attorneys reported, however, that the stick was more
powerful than 'the carrot in securing information. These attorneys simply refused to
consider a guilty plea in any case in which they had not been afforded an opportunity
to examine the prosecutor's file. They reported that this bargaining tactic was successful
once the prosecutors realized that they were not bluffing, and they were thus able to
secure reasonably complete discovery in all cases that were not plainly headed for trial.
In addition to their general advantage in discovery, public defenders seem to enjoy an
advantage in conducting their own investigation of factual issues. Most major urban
defender offices employ investigators as permanent members of their staffs, and contrary
to the impression that may have been created by Perry Mason's close association with
Paul Drake in numerous television adventures, private attorneys who enjoy the regular
services of an investigator are rare. Many defendants who have the means to employ their
own attorneys nevertheless lack the resources to pay for investigative services. See Stein-
berg, The Responsibility of the Defense Lawyer in Criminal Cases, 12 SYRACUSE L. REV.
442, 443 (1961); Steinberg & Paulsen, supra note 70, at 26, 28. The organization of de-
fender offices thus gives the indigent at least one advantage over the marginally affluent.
Quite apart from economic constraints, moreover, private attorneys generally have a low
opinion of the ability, diligence, and honesty of private detectives. Some attorneys also
reported that they were reluctant to conduct factual investigations for fear that these in-
vestigations would give rise to charges of bribery and subornation of perjury. Charges
of this sort would, of course, be less credible if leveled against public defenders who lack
the private attorneys' economic incentives for corruption. Whether exclusively for these
reasons or partly out of laziness, most private attorneys seem to rely almost entirely upon
formal and informal discovery and the investigative efforts of defendants themselves (and
sometimes the efforts of their friends and families) in preparing for trial and plea
bargaining. .
1229
D. Delay
A defense attorney usually improves his bargaining position by de-
laying the disposition of his cases as long as possible. 142 With the pas-
sage of time, tempers cool, memories fade, and prosecution witnesses
140. See Newman & NeMoyer, supra note 54, at 367 n.95; Platt, Schechtner & Tiffany,
supra note 114, at 629; A Comparison of Defense Relationships, supra note 21, at 123.
141. Breckenridge also noted that in jurisdictions like Los Angeles, where bargaining
focuses on the charge rather than on the prosecutor's sentence recommendation, an
attorney's ability to predict what sentence the judge will impose is important in evaluating
almost every case.
142. See, e.g., More Careful Use of Defense Motions Urged at Criminal Practice In-
stitute, 5 CRIM. L. REP. 2114 (1969) (remarks of Judge Gerhard A. Gesell).
There are, however, important exceptions to this generalization. In some cities, for
example, prosecutors' offices regularly offer more favorable plea agreements before the
preliminary hearing than they will make available at any later stage of the proceedings.
A guilty plea at this early stage may save not only the burden and expense of trial, but
the burden and expense of grand jury proceedings, various pretrial hearings that a de-
fense attorney may demand, a significant amount of paperwork, and usually, of course,
the preliminary hearing itself. Equally important is the fact that, in most cases, the
jurisdictional limitations of preliminary-hearing courts severely confine the penalties that
a prosecutor can demand if he is to conclude any plea agrepment at this stage.
1230
143. George M. Scott, the County Attorney in Minneapolis, noted that after numerous
court appearances a prosecution witness might remark, "Now that you have finished me,
when are you going to try the man who robbed my store?" Conference of Chief Justices,
3 CRIM. L. REP. 2381, 2382 (1968).
144. Alschuler, Courtroom Misconduct by Prosecutors and Trial Judges, 50 TEXAS L.
REv. 629, 680 (1972).
145. Banfield & Anderson, supra note 89, at 287-90.
146. Some defense attorneys, without giving much thought to strategic considerations,
may simply delay their cases on "general principles." As Percy Foreman observed, "I never
yet lost a case until I tried it."
147. Alschuler, supra note 7, at 58-64.
148. Banfield & Anderson, supra note 89, at 287 n.94. Martin Erdmann, Chief of the
Supreme Court Branch of the Legal Aid Society of the City of New York, observed, "The
last thing [most defendants] want is a trial. They know that if every case could be tried
within 60 days, the pleas of one-to-three for armed robbery would be back up to 15-to-25."
Mills, I Have Nothing To Do With Justice, LIFE, March 12, 1971, at 56, 66.
149. Indeed, more dramatic success in the use of stalling tactics has sometimes been
recorded. The New York Times noted, for example, the case of Carmine Persico: "In the
30 months following arraignment, defense attorneys were granted 25 adjournments, for
the most part because they were busy in other courts." The Times also reported that in
the case of Matthew Ianniello defense attorneys had "sought and received 39 adjourn-
ments from the court over the course of three years." A prosecutor claimed that these
cases were not aberrational; some judges regularly gave defense attorneys "adjournments
stretching over several years to accommodate their schedules." N. Gage, Study Shows
Courts Lenient With Mafiosi, N.Y. Times, Sept. 25, 1972, at 1, 31.
1231
This guy's narcotics habit was so bad that he had become thor-
oughly incompetent at his burglaries. He would be arrested, re-
leased on bond, and then rearrested every month or so for a new
crime. By the time he came to trial, there were a total of six
theft and burglary charges against him. The total bond was enor-
mous. I had already played along for the usual run of continuances
when the defendant told me that he really liked summer. Since I
had kept him out all winter, couldn't I keep him out for the sum-
mer too? I could and did, and after the trial in the fall, I kept
him out for 60 days more-30 days to get his teeth fixed and 30
days for the hell of it. Maybe I could have gone on, but I was
beginning to get nervous. I was relying on the return of the de-
fendant's bond for $1,700 of my fee.
1232
lack one reason for delay that commonly influences private defense
attorneys: they need not seek postponements to facilitate the collec-
tion of fees from their clients. Some courts appear to grant these post-
ponements almost automatically when private defense attorneys re-
port, in appropriately coded language, that they have not been paid.
Martin Mayer notes, for example, that a defense attorney in New York
can secure a continuance by informing the court that he has been
unable to locate his witness, "Mr. Green"; in Washington, D.C., the
defense attorneys' practice is to seek a postponement "pursuant to
Rule 1 of this court." 151 Sixty-five percent of the 311 defense attorneys
surveyed by Ryan L. Petty said that they considered it proper for a
lawyer to request postponement of a case in order to collect his fee.lr 2
One argument against delay is, moreover, frequently stronger in
the cases of public defenders than in cases handled by retained at-
torneys. A defender's clients are more likely than those of a private
attorney to be held in custody during the pretrial period, and the
costs of delay to a defendant are obviously greatest when he cannot
secure his release on bond.15 3 The Banfield-Anderson study reported,
however, that retained attorneys sought and obtained significantly
more postponements than public defenders even when "jail cases"
54
and "bail cases" were considered separately.
Private attorneys commonly asserted, in fact, that delay was advan-
tageous even for many defendants in custody. If trial today would
produce a sure conviction, if trial tomorrow might produce an ac-
quittal, and if the defendant would in any event receive credit on
his sentence for the time that he had spent in custody awaiting trial,
a balance of tactical interests would usually favor delay.55 Most public
defenders, however, did not seem to employ the same calculus; in ex-
plaining their reluctance to seek postponements, they often simply as-
serted that any delay would increase the period of pretrial detention
151. M. MAyER, supra note 13, at 161-62.
152. R. Petty, supra note 15, at 15-16.
153. See Wallace v. Kern, 15 CRnm. L. REP. 2007 (E.D.N.Y.), rev'd, 499 F.2d 1345 (2d
Cir. 1974):
[With delay,] inmates are confined under unspeakably degrading conditions, beaten
by other inmates, and coerced into homosexual activities, until, in many cases, the
pressure to enter some kind of guilty plea becomes unbearable .... The suicide rate
of untried detainees is very high. Jobs are, of course, lost. Families that attempt to
keep up visits for the first three months or so eventually leave the inmate.
154. Banfield & Anderson, supra note 89, at 304 (table 15).
155. Nevertheless, it would not be entirely accurate to say that a defendant in this
situation has everything to gain and nothing to lose by waiting. The conditions of pre-
trial detention facilities are often worse than the conditions of state penitentiaries, and
many defendants would undoubtedly prefer to serve their sentences in the latter in-
stitutions. In addition, even if a defendant receives credit on his sentence for the period
of pretrial detention, the state penitentiary's "good-time rules" may be inapplicable to
this portion of his confinement. See McGinnis v. Royster, 410 U.S. 263 (1973).
1233
for their clients. One public defender of the Legal Aid Society of the
City of New York noted that he was reluctant to seek delay for a client
in custody even when the client had asked him to do so. He ad-
mitted that one factor that entered his calculus was a desire to protect
himself. The defender observed that the client might ultimately change
his position, point to his lengthy pretrial detention, and blame his ap-
pointed attorney for the lack of a speedy trial. By contrast, Richard
Haynes, a private defense attorney, reported that he would sometimes
seek delay even when a jailed client appeared nervous and anxious to
conclude the proceedings as quickly as possible. Private attorneys,
selected and retained by their clients, may be somewhat less fearful
than public defenders of post-conviction proceedings alleging the in-
effective assistance of counsel. 15
The disadvantage of public defenders in the "continuance game"
may not be entirely the product of institutional constraints. In part,
this disadvantage seems self-imposed. With a few exceptions, public
defenders maintained that it was not their function to "abuse the
system" by seeking unnecessary continuances. Most private attorneys,
however, denied that their delaying tactics were unethical. "All a
defense attorney does is ask," one New York lawyer observed. "The
responsibility for wasteful postponements rests elsewhere.' ' 7
The ethical problem may not of course be quite so simple as this
lawyer maintained. A defense attorney is often asked his reasons for
delay, and he rarely responds, "I hope that the complaining witness
will die, move to New Mexico, or tell the prosecutor that he is tired
of waiting and wants to forget the whole thing." When, however, a
defense attorney can present a reason for delay that is truthful and
persuasive to the court, the position of the New York lawyer has
substantial force. It should not matter that the attorney has made
less than full disclosure and that the avowed reason for delay is not
his only or primary reason (or, indeed, that it does not influence
him at all).'- 5 If a court considers the truthful, stated reason sufficient,
the attorney's secret motives are irrelevant.
1234
E. Judge-Shopping
Defense attorneys commonly attempt to maneuver their cases be-
fore judges whose sentencing policies are lenient, and in most cities,
judge-shopping becomes easier when a defendant is willing to plead
guilty than when he insists upon a trial. Our criminal justice system
thereby supplies an additional reward for the act of self-conviction-
a reward that cannot be defended as a measured response to the cir-
159. In addition, I certainly would not give the claim that "everyone does it" any
moral weight when a lawyer's actions are taken to benefit himself rather than his clients.
It is the moral obligation that a lawyer assumes in agreeing to represent a client that
makes the problem complex.
160. The ABA Project on Standards for Criminal Justice has declared that "defense
counsel should avoid unnecessary delay in the disposition of cases" and that "defense
counsel should not intentionally use procedural devices for delay for which there is no
legitimate basis." ABA STANDARDS, supra note 55, § 1.2 (Supp. 1971). The ABA Code of
Professional Responsibility does not contain any comparable restriction. John F. Sutton,
Jr., the reporter to the committee that drafted the ABA Code, told me that this omission
was not the result of oversight but of a conscious decision to leave the matter to the
courts.
1235
We simply do our best to make the list break down. When the
judge calls the first case on the docket, we request a jury trial.
161. I intend to explore this issue in a separate study of the trial judge's role in plea
bargaining and to describe some of the devices that defense attorneys use in the judge-
shopping process.
162. Cf. Eckart & Stover, supra note 86, at 672-73.
1236
When the judge then suggests that we pass this case and proceed
with the others on the list, we respond, "They are all jury trials,
your Honor."
The public defenders' repeated demands for jury trials may cause
a disfavored judge to revise his sentencing policies in an effort to
"move his share of the load." Even if the judge does not respond to
this pressure, the trials tie up the courtroom and cause other cases
to be reassigned, thereby insuring that only a small number of de-
fendants come before the insufficiently lenient judge. The relatively
few defendants convicted at trial are, of course, likely to receive harsher
sentences than they could have secured by pleading guilty. They there-
by suffer an attorney-inflicted sacrifice on behalf of their fellow de-
fendants and become especially victimized victims of our system of
1 3
criminal justice.
1237
1238
Help" effectively selects the public defender and his assistants. 1 8 This
sort of judicial supervision may have been designed to minimize di-
rect political control of defender operations. Neither the electorate
nor the executive nor the legislature may have seemed sufficiently
sympathetic to the need for vigorous representation of indigent de-
fendants, 1 9 and the judiciary may have been thought a more appro-
priate and more impartial guardian.
The danger of excessive involvement in politics does seem to be a
real one for defender offices." 0 Nevertheless, systems which rely on the
judiciary as a buffering agency largely ignore the realities of the guilty-
plea process. So long as judges view the guilty plea as the key to ef-
fective caseload management, they may have a stronger interest in pe-
nalizing aggressive defense efforts than "law and order" politicians.
Under a system of plea negotiation, judges may well be the last authori-
ties to whom public defenders should be beholden if they are to per-
form their functions effectively." 71
168. Cf. D. OAKS & W. LEHMAN, supra note 85, at 120. This judicial control of the
defender office has not always kept the office free of scandal. On one occasion, an in-
vestigator was listed as a full-time member of the defender staff although he was also
drawing another full-time salary from public funds. Incidents of this sort are, of course,
unlikely to give indigent defendants much confidence in the quality of the legal services
that they receive.
169. See REPORT ON THE SAN FRANCiSCO PUBLIC DEFENDER'S OFFICE, supra note 84, at 2:
"[T]he Public Defender... is likely to become unpopular in exact proportion to his
diligence in performing his duties." See generally Steinberg 9- Paulsen, supra note 70, at
38.
170. For example, in San Francisco until 1970, the elected Public Defender required
all of his deputies to contribute one percent of their salaries to a "public relations fund."
The Defender used this fund as a source of contributions to charities, testimonials, and
political campaigns. REPORT ON THE SAN FRANCISCO PUBLIC DEFENDER'S OFFICE, supra note
84, at 13.
Inevitably, of course, some authority must determine the budget of the defender office,
and some authority must assume responsibility for hiring the defender. Public defenders
are thus subject to potential sources of pressure that do not influence the conduct of
private defense attorneys. The extent of this danger, however, is often exaggerated, and
independent boards of trustees or other buffering agencies can minimize the danger that
does exist. Although I have not studied the problem in detail, I am inclined to think that
the best governing agency for a public defender office would be a board of trustees with
representatives of the public (appointed by the executive branch of government), of the
organized bar, of the public defender staff, of community-controlled antipoverty agencies,
and of the local jail population.
171. The National Advisory Commission on Criminal Justice Standards and Goals has
observed:
Appointment of the defender by a judge may impair the impartiality of the de-
fender, because the defender becomes an employee of the judge. Moreover, such a
system will create a potentially dangerous conflict, because the defender will be
placed in a position where occasionally he must urge the error of his employer on
behalf of his client. Such dual allegiance, to judge and client, will cripple seriously
any system providing defender services.
NATIONAL ADvIsoRy COMMISSION ON CRIMINAL JUSTICE STANDARDS AND GOALS, TASK FORCE
REPORT ON THE COURTS, Standard 13.8, comment (1973). See also THE OTHER FACE OF
JUSTICE, supra note 83, at 66 ("it is exceedingly difficult for an indigent defendant ...
to
have confidence in an advocate who is selected by the same authority who controls the
proceedings which may deprive him of his liberty").
1239
Even when judges lack any direct power over the staffing and fund-
ing of defender offices, they plainly possess an overwhelming power
over the fate of the defenders' clients. A public defender may fear-
correctly or incorrectly-that judicial displeasure will result in informal
reprisals, and that these reprisals will extend beyond the case at hand
to future cases and even to the cases of other defenders.1 7 2- As a member
of a large law office with a high volume of cases (and as a lawyer
whose professional judgments are subject to review by the head of
his office), a public defender may sense that he is in an even more
vulnerable position in this respect than most private defense attorneys.
Indeed, power over sentencing and other judicial matters often gives
judges an indirect power over the hiring, assignment, and firing of
defenders. Vincent J. Ziccardi, the First Assistant Defender in Phila-
delphia, explained that approximately one-fifth of the lawyers in his
office were "married" to particular judges. Ziccardi had found that
these defenders achieved unusually favorable results before these
judges, and as a result, they followed "their" judges whatever the
judges' assignments. 173 A defender who incurs a judge's animosity is,
of course, likely to suffer the opposite fate-a "divorce" from the judge
and, perhaps, from the defender office as well. An offended judge may
simply complain to the chief defender about the attorney's inadequa-
cies, and the chief defender may conclude that the attorney is too
abrasive to provide effective representation for his clients. Something
like the Fort Worth system of defender selection may thus develop
in practice despite the independence of the defender office in theory."7
172. See Wilkerson, Public Defenders as Their Clients See Them, 1 AMt. J. CRIM. L.
141, 146 (1972); cf. Davis v. Johnson, 495 F.2d 335 (3d Cir. 1974).
Michael Ginsburg, a University of Texas law student, studied the work of the Colorado
State Public Defender System in rural areas of southern Colorado. He recalled a case in.
which a judge imposed a 270-year sentence following a trial and then told the public
defender who had represented the defendant: "Don't you ever bring a case like this one
into my court. You bargain it out first." Class Presentation, Post-Internship Seminar,
University of Texas Criminal Justice Project, November, 1972.
173. See J. Renfro, Judge Maneuvering in an Urban Court: The Philadelphia System,
Feb. 26, 1971, at 16-17 (unpublished paper on file at the University of Texas Law School
Library); A Comparison of Defense Relationships, suprna note 21, at 109 (similar assign-
ment system in Denver).
If the familiarity between judges and public defenders sometimes breeds abuse and
contempt, it also sometimes works to the defenders' advantage-as these "marriages" may
indicate. Luke C. McKissack, a private defense attorney in Los Angeles, observed, "Public
defenders usually have a casual working relationship with the judges. A judge will
ordinarily talk out a case with a public defender in a more complete manner than he
will with a private attorney."
174. Judge Abraham L. Freedman of the United States Court of Appeals for the
Third Circuit analyzed this problem in a concurring opinion in United States ex rel.
McCoy v. Rundle, 419 F.2d 118, 120 (3d Cir. 1969). A public defender had antagonized a
trial judge, and Judge Freedman reported, "In his anger the judge had handed out what
counsel described as 'really outrageous sentences.' A more experienced lawyer was sent
in ... as the 'fireman' to 'calm the judge down.'" Judge Freedman concluded:
1240
[O]ne whose eye must envisage many other untried cases as he seeks to bank the
fires of a judge's indignation is not likely to be able to stand up fully for the rights
of a single client, whatever they may be and wherever they may lead him. The desire
to appease an indignant trial judge who has already inflicted what seem excessively
harsh sentences is magnified where an institutional law office represents many other
defendants and is under pressure to subordinate the individual rights of one to the
larger good of all.
175. See CONN. GEzN. STAT. REV. §§ 3615, 8796, 54-80 to 54-81a (1973).
176. J. CAsPER, supra note 116, at 105. Compare this statement of a 16-year-old
defendant:
I would never take one of those public defenders.... They sit down with the judge
and they got this piece of paper and they talk it over and decide what this nigger's
gonna get.
Platt, Schechtner & Tiffany, supra note 114, at 634.
In 1970, inmates of the Tombs City Prison in New York presented a list of grievances
to the mayor's office:
[I]n most instances we find that the Legal Aid Society aids and abets the incursions
and abuses of our rights in the courtrooms. It is the order of the day for the assigned
legal aid, on first meeting his client, to open the conversation by saying, "I suggest
that you take a guilty plea," or "I can speak to the District Attorney and get you
(this or that) plea."... [W]e feel that under the present system of the courts that we
cannot receive any justice and can only suffer threat, coercion and intimidation
disguised as law and justice.
Quoted in AMtERICAN FRIENDS SERvIcE COMMITTEE, STRUGGLE FOR JusTIcE 3 (1971).
1241
177. J. CASPER, supra note 116, at 110. See also Wilkerson, supra note 172, at 163. Joe
J. Sawyer, a law student intern in the public defender office in San Jose, heard one jail
inmate tell a defender, "It's a game. Some people have it; some people don't. Some people
have money; I don't, so I have you. It's like craps." Class Presentation, Post-Internship
Seminar, University of Texas Criminal Justice Project, November, 1972.
178. See J. CASPER, supra note 116, at 124.
179. See A Comparison of Defense Relationships, supra note 21, at 109 ("Three
months often passed before one charged with a felony met the defender ultimately
responsible for his case").
180. See, e.g., N.Y. Times, July 12, 1971, at 25, 46; Note, supra note 85, at 448.
181. 332 F. Supp. 595 (S.D.N.Y. 1971).
1242
In this case, Judge Frankel concluded that the defendant had been
denied the effective assistance of counsel, but in a less extreme case,
at least one other court has ruled that the "zone defense" is not in-
herently inadequate to supply effective representation. 8 3
Public defenders themselves usually had few kind words for their
assembly line methods of representation. They commonly explained
that only inadequate financing accounted for their adoption of the
"zone defense" and that they, like their clients, regarded it as incon-
sistent with the development of sound professional relationships. 1 4
More significant than the "zone defense" in explaining the lack of
rapport between defenders and their clients is the attitude that most
public defenders apparently adopt toward their work. Private defense
attorneys seem to view themselves both as lawyers and as salesmen.
Some, in fact, plainly emphasize the latter role to the detriment of
1243
He laid things on the line. He told me this can happen, and this
can happen; so what we got to do is make up our minds .... He
explained to me how the laws working, and what they doing up
there in superior court. 189
185. Cf. Dahlin, supra note 87, at 115: "One defender notes, for example, that he can
be more frank with his client because he does not have to worry that his candor will
cause the client to leave him and get another lawyer."
186. Wilkerson, supra note 172, at 142. Only eight of the 11 San Bernardino County
defenders surveyed by Donald C. Dahlin agreed that "a Public Defender should talk to
every defendant assigned to him." Two even dissented from the truism that "in a felony
case, the Public Defender should talk to the defendant as often as the case requires."
Dahlin, supra note 87, at 99.
187. Wilkerson, supra note 172, at 145. Herbert Sturz, Director of the Vera Institute
of Justice, once said, "Generally, legal aid lawyers don't even bother to introduce them-
selves to clients-the most elementary civility-but start ordering them around and scoffing
at their claims of innocence." Harris, supra note 10, at 82.
188. J. CAsPmr, supra note 116, at 109.
189. Id. at 116-17.
190. Wilkerson, supra note 172, at 146.
1244
191. Id.
192. The defenders noted that they also lacked time to visit the jail more frequently.
193. One suspects that the "democratic touch" would be far less popular.
1245
The lack of rapport between public defenders and their clients is, in
part, a matter of cosmetics and style, and measures designed to educate
the defenders' clientele and to promote better "client relations" might
help to alleviate the difficulty. Nevertheless, the Wilkerson and Casper
studies indicate that the problem goes beyond cosmetics and education
to the substance of the defenders' performance. Many of the grievances
voiced by the defenders' clients mirror the problems, dangers and dis-
advantages that this article has noted in the public defenders' position
-particularly the danger of excessive cooperation with the prosecution:
1246
1247
sexual advances throughout the evening and had become more abu-
sive with each rebuff. He had finally threatened to kill the defendant
and was apparently reaching for a weapon when she shot him. The
defendant had given a public defender a list of witnesses to the entire
transaction. Although she had been in custody for a year, the public
defender had not contacted anyone on the list. Instead, the defender
repeatedly urged the defendant to plead guilty to murder, promising
that her sentence would be only 14 years imprisonment, the minimum
term permitted by statute. Goldberg telephoned the public defender,
who confirmed the defendant's story of their relationship. The de-
fender nevertheless resisted Goldberg's suggestion that it was his duty
to secure a trial for the defendant if she wanted one. He maintained
that the proposed 14-year sentence was a "good deal," and he argued
unrealistically that the defendant might receive the death penalty if
she stood trial. Three more months passed before the defendant plead-
ed guilty to voluntary manslaughter and was sentenced to a term of
two-to-ten years. Even then, the defendant had been reluctant to forego
her right to trial. She had relented only upon learning that she would
be eligible for parole as soon as she arrived at the penitentiary.
1248
least severe, public defenders usually have far more burdensome case-
200
loads than most private defense attorneys.
A public defender's caseload is at once his greatest burden and his
greatest asset in the plea-negotiation process. Although the caseload
may tend to grind some defenders into a perfunctory bureaucratic
routine, it also provides defenders with a powerful bargaining lever.
In 1937, before the growth of urban defender systems in response to
judicial expansion of the right to counsel, Justice Henry T. Lummus
wrote, "If all... defendants should combine to refuse to plead guilty,
and should dare to hold out, they could break down the administra-
tion of justice in any state in the Union." 20 1 The organization of
urban defender offices has provided a mechanism by which large num-
bers of defendants can engage in the concerted action that Justice
Lummus described; indeed, they may do so at the behest of their
attorney without fully realizing that a concerted bargaining strategy
is involved. As George H. Ross, the Public Defender in Pittsburgh,
noted, "We can tie up the whole system, and the prosecutors and
trial judges know it."202
The most spectacular form of bargaining leverage that a public
defender office can exert is a "general strike," in which all of the
defenders' clients insist upon exercising the right to trial.203 A few
prosecutors, however, discounted not only the likelihood that defenders
would carry out this threat but the probable effectiveness of the tactic
if they did. David S. Worgan, the Executive Assistant District At-
torney in Manhattan, maintained, "In a Legal Aid strike, a few de-
fendants might go to trial and hold things up, but the stiff sentences
that they received would quickly persuade the Legal Aid Office to
reconsider its position." Worgan's view was apparently that his of-
fice could "break" any public defender strike, and at least one public
defender agreed. Boston's Edgar A. Rimbold observed, "Our volume
of cases may be a powerful bargaining weapon, but it is far less power-
ful than the District Attorney's ability to secure harsh sentences when
defendants stand trial. It is to our clients' advantage to see that plea-
200. Bernard Segal, a private attorney in Philadelphia, observed, "In plea negotiation,
the public defenders are the wholesalers, and we are the retailers. The defenders have
the whole list."
201. H. LuMmus, THE TRIAL JuDGE 46 (1937).
202. See A Comparison of Defense Relationships,supra note 21, at 123 ("We've got the
volume. I could bring my court to a halt if I tried every case").
203. Of course there is another, more obvious form of public defender strike-that in
which defenders simply refuse to report for work. In July, 1973, attorneys of the Legal
Aid Society of New York successfully participated in a "traditional" strike of this sort.
The fruits of their victory included a desk and a telephone for each attorney. See
Lobenthal, supra note 21, at 1220.
1249
1250
for repeated offenders in our new penal code. If the prosecutors ever
try to use it, they will find that there are no guilty pleas in repeated
offender cases." Several attorneys in Los Angeles recalled that the
public defender office in that city had once refused to enter guilty
pleas for defendants charged with prostitution. A number of private
defense attorneys joined the strike, and for a two-week period, most
prostitution cases went to trial. Ultimately, the courts "came around"
and revised their sentencing policies. By such mechanisms are resources
allocated and sentences determined in the American system of criminal
justice.
Use of the "craft union strike" by public defenders caused one New
York prosecutor to reject my inquiry whether public defenders secured
more or less favorable plea agreements than private defense attorneys.
"It is not a matter of doing better," he said. "The Legal Aid Agency
simply sets the standard. The Agency may decide that first offenders
charged with street robbery should not plead guilty to anything more
serious than the highest grade of misdemeanor. The Legal Aid policy
ultimately becomes the law, and street-robbers who are represented by
private attorneys then receive the same benefits as those who are rep-
resented by Legal Aid attorneys."
Public defenders may also employ "strikes on the industrial union
principle." All defendants engaged in a particular "craft" do not re-
fuse to plead guilty; instead, all defendants who come before a par-
ticular judge insist upon the right to trial. Although they are mem-
bers of various "trades and crafts," these defendants are united in col-
lective opposition to management policies. They have become members
of a union shop by virtue of the assignment of a public defender to
represent them. "Back in my day in the public defender office," noted
Philadelphia's Bernard Segal, "as soon as a judge reached an unsatis-
factory result or imposed an unjustified sentence, we said, 'That's it!
Jury trial on the whole list!' If the judge asked us why, we'd bluntly
tell him: 'Because you gave the last guy ten years.' " As this article
has noted, 20 4 an "industrial union" strike may persuade an affected
trial judge to reconsider his sentencing philosophy; it may induce the
court's presiding judge to reassign the judge and replace him with a
"more experienced" jurist who knows better how to "move cases";
and if all else fails, the strike insures that a minimum number of
defendants will be sentenced by a judge who has dared to offend the
public defender office.
1251
1252
206. At a minimum, of course, a lawyer must inform his client of the long range ob-
jectives that he seeks and of the risks that the client runs. Public defenders seem to
neglect this duty in assuming the power to proclaim, "That's itd Jury trial on the whole
listl" Disclosure alone, however, cannot fully resolve the problem. In ordinary circum-
stances, it would be presumptuous and unfair for a lawyer to suggest to a client a course
of action that the lawyer himself does not consider in the client's interest. Moreover,
when a lawyer informs a client that he wants to "fight" the judge or prosecutor, the
client is likely to acquiesce despite the disclosure of risks which indicate that he is un-
likely to gain from this action. Effective representation in ordinary circumstances may
require that a lawyer persuade a client to disregard his own instincts and inclinations
and think more clearly about what is at stake. Even the omission of this persuasion can
be regarded as an act of betrayal and as an abandonment of the lawyer's traditional
obligation to serve the interests of each client unreservedly. I would not, in short, regard
the "consent" of a public defender's clients as automatic justification for a strike that
the public defender himself had initiated; instead, a defender should consider the quality
of this consent, the severity of the abuses to which he is responding, and the extent of
the probable penalty, in deciding whether so extreme a measure on behalf of future
clients is warranted. Still, I am no longer prepared, as I once was, to view the public
defender strike as inherently unethical. Perhaps I should add, however, that simple dis-
agreement with a judge's sentencing philosophy seems inadequate as justification for a
"public defender strike."
1253
207. Joe J. Sawyer, a law student who worked as an intern with the Public Defender
Office in San Jose, offered an illustration. As part of his duties, Sawyer interviewed a
jailed 18-year-old defendant, who was small, black, slow-witted, and frightened. The
defendant lived in a high-crime neighborhood, and his story emerged only gradually
after some coaxing.
As the defendant told it, he was walking home at 3:00 A.M. and was within two
blocks of his apartment when a voice called out, "Hey, youl" The defendant started to
run, climbed over a neighbor's fence, and was then overtaken by a large dog. The dog
attacked, and the defendant fell to the ground and covered his head with his arms. As
the dog bit him repeatedly, the defendant heard voices in the background. One of the
voices finally called the dog to heel. It developed that both the dog and the author of
the anonymous shout worked for the San Jose Police Department. The defendant was
charged with resisting arrest, trespass, and failure to identify himself properly, a non-
existent crime.
The defendant's statement might, of course, have been untrue. The "unidentified
voice" and the "flight to safety" do seem to be recurring themes in the stories of de-
fendants charged with resisting arrest. Nevertheless, the defendant was apparently con-
vinced that, even as he had described the situation, he had done something criminal; he
had, in fact, begun the interview by offering to plead guilty. In addition, the defendant
did not seem intelligent enough to create so coherent an exculpatory story. Finally, the
story had apparently not been planned in advance; the defendant had, for example,
failed even to mention the dog bites until Sawyer noticed that he was scratching himself
and asked why. When, however, the defendant removed his shirt at Sawyer's request, the
evidence of the dog's attack was compelling.
Sawyer concluded that the defendant was innocent of any wrongdoing. His only
"resistance" was flight from an unidentified voice; his only "trespass," an entry that was
plainly noncriminal. CAL. PENAL CODE § 602(k) (West 1972). Sawyer filed his interview
report along with a request, in duplicate, for photographs of the defendant's wounds. He
assumed that the lawyers and investigators of the defender office would take responsibility
for further action in the case.
Several weeks later, Sawyer noticed the defendant in jail, dressed in "kitchen whites."
He asked whether the defendant had been to court, and the defendant answered that he
had. "Did you have a lawyer?" Sawyer asked. "Yes, but I thought it was gonna be you,"
the defendant answered. The defendant could not remember the name of his attorney,
but he asked shyly when the photographer that Sawyer had mentioned would come to
the jail.
Sawyer investigated and found that the defendant, represented by a public defender,
had pleaded guilty to the most serious charge against him, resisting arrest. He had been
sentenced to a six-month term in the county jail. At the bottom of the defender's files
were Sawyer's interview report and his requests, marked urgent, for photographic evi-
dence. Sawyer also uncovered the police arrest record, which was consistent with the
defendant's story. The public defender who had appeared in the case admitted that he
had not read Sawyer's initial report and seemed appalled by his error.
When Sawyer wrote to me about this incident, I suggested that it might not be too
late to secure a partial remedy. If the public defender would seek a new trial, reveal the
circumstances, and confess that he had failed to provide adequate representation for the
defendant, it seemed almost unthinkable that his motion would be denied. Most trial
judges are undoubtedly willing to stop the criminal justice machine once they are
persuaded that it has run someone over. Sawyer conveyed this suggestion to the public
defender, but the defender, fearful of losing his job, refused to file a motion for a new
trial. "You'll make some mistakes yourself when you become a lawyer," he told Sawyer.
1254
208. A federal district court once ordered the Legal Aid Society of the City of New
York to refuse appointments in felony cases until its lawyers had average caseloads of no
more than 40 cases each. The court was quickly reversed on appeal on the ground that
public defenders do not act under color of state law. See Wallace v. Kern, 481 F.2d 621
(2d Cir. 1973), rev'g 371 F. Supp. 1384 (E.D.N.Y.), cert. denied, 414 U.S. 1135 (1974). For a
more defensible path to the same unfortunate result, see Brown v. Joseph, 463 F.2d 1046
(3d Cir. 1972), cert. denied, 412 U.S. 950 (1973); John v. Hurst, 489 F.2d 786 (7th Cir.
1973) (immunity of public defenders in federal civil rights actions).
209. See Eckart & Stover, supra note 86, at 670: "Mhe notion of providing an
adequate defense... becomes defined in terms of what is possible given limited time and
resources for investigation."
210. See A Comparison of Defense Relationships,supra note 21, at 110.
1255
211. Jack D. Bodiford, a Houston Legal Foundation staff attorney, reported that be-
fore the establishment of the coordinated assigned-counsel system in 1966, fewer than 20
attorneys secured most appointments. "Each judge had his handful of favorites," he
explained. In a recent telephone conversation, Bodiford added a postscript on the current
situation: "The number of appointed attorneys is larger than 20 today because so many
young lawyers are haunting the courthouse looking for business."
212. PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE,
TASK FORCE REPORT: THE COURTS 60 (1967).
213. If, for example, a defendant told a Foundation interviewer that a friend or
relative was attempting to hire a lawyer for him, no attorney would be appointed (un-
less the defendant later, on his own initiative, wrote the Legal Foundation to request
assistance). Similarly, defendants who were indicted by the grand jury prior to arrest
were commonly not interviewed. Although many "forgotten defendants' were scheduled
1256
1257
216. These lawyers were, however, often hampered by their lack of knowledge of the
guilty-plea system. See pp. 1268-70 infra.
217. The younger associates of large firms often found that they had greater re-
sponsibility and authority in assigned cases than they did in other matters handled by
their firms. With their salaries unaffected, they might therefore respond to their assign-
ments with enthusiasm.
218. The Houston Legal Foundation supplied appointed attorneys with forms to sub-
mit upon the completion of their assignments, and the forms provided an opportunity
for comment upon the attorneys' experiences. Many attorneys, of course, chose not to
comment, and the responses of those who did have not been published or subjected to
statistical analysis. Nevertheless, as Sam H. Robertson, a former Chief of the Legal
Foundation's Criminal Division, summarized the attorneys' comments, only a minority
expressed enthusiasm for their assignments. The attitudes of the others ranged from
resignation ("O.K., I was drafted, so I did the job") to hostility ("Go to hell; this
criminal stuff stinks").
1258
easily conclude that the "honorable thing" to do for a client who ad-
mitted his guilt was to negotiate a speedy plea of guilty.2 19
The economic burden of poorly compensated assignments was an-
other manifest source of resentment. As members of small firms, many
draftees felt busy enough just juggling the cases of their paying
clients. When confronted with a case that was outside their area of
expertise, that might require extensive re-education in a subject con-
sidered only briefly in law school, that involved strange people and
led to unfamiliar places, and that paid next to nothing, these lawyers
commonly concluded that they would fit it in as best they could-
and that it would fit in best at the bottom of their files.
Fortunately for many of these lawyers, the guilty-plea system of-
fered an easy way out. With little effort and minimal contact with
the grime and confusion of the criminal courts, an unhappy recruit
could quickly put his unpleasant duties behind him. The only work
involved was that of persuading the defendant to plead guilty, a task
that might, in fact, be eased by the defendant's vision of the kind
of trial that his resentful lawyer would be likely to provide. Moreover,
the lawyer's conscience would be clear, for under the guilty-plea sys-
tem, a lawyer can always persuade himself that the course that serves
his own interests is probably in the best interest of the defendant and
220
society as well.
An assigned-counsel system relying on draftees might conceivably
be successful if all or most cases were resolved by trial. The adequacy
of each attorney's performance would then be a matter of record, and
the attorney would be encouraged to take his responsibilities seriously.
Today, however, draftees may evade their responsibility in a way
that is not subject to any effective form of review, that can usually
be rationalized as no evasion at all, and that may, in fact, win the
plaudits of court officials. Under a regime of plea negotiation, an
assignment system like Houston's will inevitably deny loyal and effec-
tive representation to a substantial proportion of indigent defendants.
219. Arthur Wood reported the following conversation with a lawyer who handled a
significant number of criminal cases but who would have preferred to do nothing but
probate work:
Q. Have you ever refused a client's request to take his criminal case because you
knew the defendant was guilty?
A. No. Everyone has a right to a lawyer.
Q. Have you ever defended such a person in court?
A. Never have that I know of. I usually convince them to plead guilty.
A. WOOD, CRIMINAL LAWYER 72-73 (1967).
220. See A. TREBACH, ThE RALTIONING OF JUSTICE 148 (1964) ("the guilty plea is used as
a quick way out by certain assigned counsel harassed by the pressure of private business
and embarrassed by the procedure of an unfamiliar court").
1259
221. D. OAKS & W. LEHMAN, supra note 85, at 129-30.' The Committee's policy of
refusing compensation did not extend to capital cases, however.
222. Id. at 128.
223. Chicago's situation is unusual. In other -cities, appointed attorneys, like public
defenders, are usually more likely to enter guilty pleas for their clients than are retained
attorneys. Cf. L. SILVERSTEIN, supra note 85, at 69-70. Thus, in the federal district courts
outside the District of Columbia in fiscal year 1971, more than 66 percent of all cases in
which appointed attorneys appeared ended in guilty pleas. Fewer than 56 percent of the
cases of retained attorneys ended in guilty pleas. With dismissals and acquittals excluded,
86 percent of all convictions in appointed-attorney cases were by guilty plea, and 81
percent of all convictions in retained-attorney cases were by guilty plea. See FEDERAL
OFFENDERS IN U.S. DISrRIcr CouRTs, supra note 82, at 46-47, 122 (although not reported
directly, the percentages can be calculated on the basis of figures presented on these
pages). The greater willingness of appointed attorneys to enter pleas of guilty was not
reflected in lighter sentences for their clients. On the contrary, retained attorneys
secured lighter sentences overall, id. at 45; this difference was especially pronounced in
guilty plea cases, id. at 46-47; and the difference remained when separate offense cate-
gories were examined separately, id. A Minnesota study found that counties with ap-
pointed-counsel systems experienced about the same guilty-plea rate as counties with
public defender systems. It also found that the introduction of public defender systems
did not significantly change the guilty-plea rate in individual counties. Benjamin &
Pedeleski, The Minnesota Public Defender System and the Criminal Law Process: A
Comparative Study of Behavior at the Judicial District Level, 4 LAw & Soc'y REv. 279,
292 (1969).
In Chicago, however, with its uncompensated volunteers, the story is different. Oaks and
1260
Lehman reported that members of the Chicago Bar Association Committee on the De-
fense of Prisoners took their cases to trial as frequently as retained counsel and far more
frequently than public defenders. When they demanded a trial, moreover, these volunteers
insisted on trial by jury far more frequently than either public defenders or private at-
torneys. D. OAKS & W. LEHMAN, supra note 85, at 157 (table 27).
224. Of course it is difficult to imagine any legal system in which a defendant would
not suffer for his attorney's miscalculations. The problem obviously arises whenever a
system assigns significant responsibility to a defense attorney. Nevertheless, one mark of a
good legal system is that, to the greatest extent possible, it makes the consequences of
criminal litigation turn upon what the defendant did and what treatment he requires. A
good legal system minimizes rather than maximizes the effects of strategic judgments
upon the outcome of its processes.
1261
judges not to appoint lawyers who are likely to consume the court's
time with "unnecessary" trials. 22 Beyond that, attorneys who seek ap-
pointments are often those who cannot attract enough paying clients
to keep busy. 22 6 Their primary goal may be to secure small fees from
public funds, and some of them may provide no greater service than
is necessary to obtain this compensation.
Appointments are commonly compensated as "piecework"; a stand-
ard fee is awarded for each case regardless of the method by which
the case is resolved. 22 7 Twenty-five or 50 dollars may seem seriously
inadequate as compensation for defending a person at trial, but some
lawyers view it as a generous enough reward for conferring with a
client for 10 minutes and then standing with him in the courtroom
to enter a plea of guilty. Many assigned cases are resolved just this
quickly even in felony courts, and many appointed attorneys are un-
doubtedly unable to remember the names of their clients a few hours
228
after their representation has been concluded.
The most satisfactory technique for compensating an appointed at-
torney is probably to pay an established hourly rate.2 2 9 This method
1262
230. 18 U.S.C. § 3006A(d) (1970). The payments of $30 per hour for time expended in
court and $20 per hour for time reasonably expended out-of-court are, however, ordinarily
subject to a maximum limit of $1,000 in a felony case.
231. E.g., PA. STAT. ANN. tit. 19, § 791 (Supp. 1974) (applicable only in Philadelphia);
S.C. CODE ANN. § 17-284 (Supp. 1974).
232. FEDERAL OFFENDERS IN U.S. Dismicr COuRTS, supra note 82, at 3; D. OAKs, supra
note 85, at 236.
Although attorneys appointed under the Criminal Justice Act, 18 U.S.C. § 3006A(b)
(1970), enter guilty pleas more frequently than retained attorneys, see note 223 supra,
they may enter guilty pleas less frequently than did the uncompensated appointed at-
torneys who represented indigent defendants prior to implementation of the Criminal
Justice Act.
233. An appointed attorney may, of course, feel financial pressure to recommend pleas
of guilty even when he is compensated on an hourly basis. The rate of compensation may
be so low than an assignment remains financially burdensome. Some observers believe, in
fact, that this situation persists in the federal courts even under the Criminal Justice
Act. See D. OAKs, supra note 85, at 245 (one-third of the Criminal Justice Act counsel
surveyed believed that appointed attorneys were encouraging defendants to plead guilty
for reasons unrelated to the merits of the case). The fact that attorneys appointed under
the Criminal Justice Act enter guilty pleas more frequently than private attorneys lends
inferential support to the view that these lawyers sense a financial impetus toward
guilty pleas; nevertheless, this evidence is far from conclusive. See note 223 supra.
1263
fees as quickly and easily as possible, their actions may give rise to
claims that their clients have been denied the effective assistance of
counsel. No court has ruled that 10 or 15 minutes of effort is inherently
inadequate to provide effective representation in a felony case, but
the Fourth Circuit has said that when a defendant is able to show
that his attorney entered a guilty plea within a few minutes of his
appointment a prima facie case of ineffective representation is estab-
lished. 234 The burden then shifts to the state to demonstrate that,
under the circumstances, the attorney could indeed have considered
the case effectively in so brief a period, or, in the alternative, that
the defendant suffered no prejudice from his attorney's inadequate
23
representation. 5
Most courts, however, have rejected this approach..2 36 For example,
in a felony case in which the defendant had conferred with his attorney
for only 15 minutes before entering a plea of guilty, the United States
Court of Appeals for the Fifth Circuit observed, "[T]he totality of
1264
237. Doughty v. Beto, 396 F.2d 128, 130 (5th Cir. 1968).
238. United States v. Wright, 176 F.2d 376, 379 (2d Cir. 1949), cert. denied, 378 U.S.
950 (1950).
In Turley v. State, 439 S.W.2d 521 (Mo. 1969), the defendant claimed that his attorney
had been appointed only a few minutes prior to the entry of a plea of guilty, and the
attorney himself testified that he had conferred with the defendant for only about 30
minutes. The attorney conceded that he had not inquired into the circumstances of
either the defendant's interrogation or the warrantless search of his hotel room, but the
Missouri supreme court concluded that the defendant's guilty plea should stand:
Hasty appointment of counsel may result in prejudice, particularly in a trial ...but
the difficulty with the appellant's position here is that the matters to which he
points to prove his point, illegal search and seizure and involuntary confession, play
but little part upon a voluntary plea of guilty.
Id. at 525. On habeas corpus, the United States District Court for the Western District
of Missouri rejected this analysis and concluded that investigation and preparation were
as vital in the guilty-plea process as in the trial process. Turley v. Swenson, 314 F. Supp.
1304 (W.D. Mo. 1970). Thc court quoted Mr. Justice Sutherland's classic opinion in
Powell v. Alabama:
It is not enough to assume that counsel ... thought there was no defense, and
exercised their best judgment in proceeding to trial ... without preparation. Neither
they nor the court could say what a prompt and thoroughgoing investigation might
disclose as to the facts. No attempt was made to investigate.
Id. at 1312 (quoting 287 U.S. 45, 58 (1932)). The state then appealed and secured a
reversal in the United States Court of Appeals for the Eighth Circuit. The Eighth Cir-
cuit's analysis closely paralleled that of the Missouri supreme court:
Adequacy of representation cannot be determined solely upon the basis of the amount
of time appointed counsel spent interviewing a particular defendant and, in any
event, such a determination is immaterial to the issue of whether a guilty plea was
properly accepted, except to the extent counsel's incompetence bears on the issues
of voluntariness and understanding.
tW]e do not believe that defense counsel's failure to conduct a collateral investiga-
tion of the facts of Turley's pending criminal case in Jasper County was such a
dereliction of duty as to make the proceedings a farce and a mockery of justice,
shocking to the conscience of the court.
Missouri v. Turley, 443 F.2d 1313, 1316-17 (8th Cir.), cert. denied, 404 U.S. 965 (1971).
1265
239. In re Hawley, 67 Cal. 2d 824, 828, 433 P.2d 919, 921, 63 Cal. Rptr. 831, 833
(1967). See McLaughlin v. Royster, 346 F. Supp. 297 (E.D. Va. 1972); In re Williams. 1
Cal. 3d 168, 460 P.2d 984, 81 Cal. Rptr. 784 (1969); People v. White, 514 P.2d 69 (Colo.
1973); Alires v. Turner, 22 Utah 2d 118, 449 P.2d 241 (1969). Cf. ABA STANDARDS, supra
note 55, § 4.1 (1970): "The duty to investigate exists regardless of the accused's ... stated
desire to plead guilty."
240. Von Moltke v. Gillies, 332 U.S. 708, 721 (1948).
241. Edwards v. United States, 256 F.2d 707, 710 (D.C. Cir.), cert. denied, 358 U.S.
847 (1958); see Kress v. United States, 411 F.2d 16, 22 (8th Cir. 1969); Alaway v. United
States, 280 F. Supp. 326, 333-34 (C.D. Cal. 1968); Wilson v. State, 291 N.E.2d 570, 570-74
(Ind.Ct. App. 1973).
1266
242. Lamb v. Beto, 423 F.2d 85, 87 (5th Cir.), cert. denied, 400 U.S. 846 (1970). See
note 258 infra. The Fifth Circuit's opinion has been approved in several other jurisdic-
tions. Goad v. Anderson, 364 F. Supp. 128 (E.D. Okla. 1973); Hulett v. State, 473 S.W.2d
410 (Mo. 1971); Butler v. State, 499 S.W.2d 136 (Tex. Grim. App. 1973).
243. E.g., Woodard v. Beto, 447 F.2d 103 (5th Cir.), cert. denied, 404 U.S. 957 (1971);
Gotcher v. Beto, 444 F.2d 696 (5th Cir. 1971); O'Neal v. Smith, 431 F.2d 646 (5th Cir.
1970).
244. In Walker v. Caldwell, 476 F.2d 213, 215 (5th Cir. 1973), the court noted that
the defendant's attorney had an office adjacent to a Georgia courtroom. Presumably
because of his proximity, the attorney was appointed to represent approximately 90
percent of the indigent defendants who appeared in this court. On Fridays, which were
"plea days," the attorney ordinarily appeared in about 10 cases. He represented ap-
proximately 500 defendants each year. The attorney admitted that in the case before
the court, he had not sought to investigate the facts, to talk to any witnesses, to ex-
plore the possibility of suppressing the government's evidence, or to engage in plea ne-
gotiations. He conceded that he followed "a substantially different practice when repre-
senting fee clients rather than appointed clients." The attorney testified, however, that he
had fully complied with the governing Fifth Circuit standard: he had determined to his
satisfaction that the defendant's guilty pleas were "voluntarily and understandingly made."
The Fifth Circuit ruled that the attorney's pro forma representation did not satisfy the
Constitution, and it quoted the United States Supreme Court for the proposition that a
guilty plea "cannot be truly voluntary unless the defendant possesses an understanding
of the law in relation to the facts." 476 F.2d at 218, quoting McCarthy v. United States,
394 U.S. 459, 466 (1969). The court nevertheless felt constrained to say:
We do not hold that every appointed counsel representing an accused who desires
to plead guilty, or whom he advises to plead guilty, must investigate all of the facts
of the case, explore all possible avenues of defense, etc., to the extent required of
appointed counsel representing an accused who pleads not guilty and goes to trial.
476 F.2d at 224. See also Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974); Colson v. Smith,
438 F.2d 1075, 1079-81 (5th Cir. 1971). But see Lee v. Hopper, 449 F.2d 456 (5th Cir. 1974).
245. See Alschuler, supra note 7, at 56-83.
1267
1268
The story does not always have such a happy ending. McKay recalled
another murder case in which the prosecutor had offered to reduce
the charge to murder without malice, thereby ensuring that the maxi-
mum sentence could not exceed five years. An appointed attorney, con-
vinced that he could win the case at trial, persuaded his client to reject
this offer. The client was convicted and sentenced to a 99-year term,
and the attorney returned to his civil practice a somewhat shattered
man.
In any legal system, of course, an experienced lawyer is likely to
provide more effective representation than a novice. The problems
1269
249. Prosecutors did report that they tried to assist appointed attorneys, and some
even said that they offered more generous plea agreements to appointed attorneys than
to retained counsel. "We hate to see those fellows do so much work for nothing," one
Houston prosecutor declared. Nevertheless, as Houston defense attorney Richard Haynes
observed, "Prosecutors can't turn backflips for an appointed attorney. They still want to
put his client in jail."
250. See Dowd, Book Review, 12 VILL. L. REV. 408, 410 (1967):
The most careful, but unknowledgeable lawyer, may be quite unaware of the un-
written law in this area. Most lawyers are aware that such practices are carried on
but cannot easily discover what in fact they can do. The negotiated plea can breed
a type of "pseudo expertise" which is not based on any knowledge of the law,
analytical skills or forensic power-just "knowing one's way around." Too often those
who possess this kind of knowhow are noticeably deficient in other professional skills.
251. For descriptions of this sort of bargaining in the 1950's, see M. MAYER, supra
note 13, at 183; Newman, Pleading Guilty for Considerations:A Study of Bargain Justice,
46 J. CRINM. L.C. & P.S. 780 (1956).
1270
1271
1272
out with these fellows who want to plead." 255 1In an effort to distribute
the burdens and benefits of appointment equitably, the judge appoint-
ed a single attorney to no more than two or three cases. Attorneys
appointed in this manner usually found that the prosecutors' files
were open to them. As defense attorney Sam J. Alfano explained, "The
D.A.'s know the problems of client control that are likely to arise
25 9
when an appointed attorney is huddled with his client."
After examining the prosecutors' files, the defense attorneys con-
ferred with their clients for a few minutes to "go over the deals."
Despite the clients' lack of legal knowledge and experience (and de-
spite the problems of "client control" that Alfano mentioned), the at-
torneys almost never found occasion to upset the bargains that the
defendants had entered without professional assistance.
There were several reasons for the passive role that these lawyers
usually assumed. Clyde W. Woody explained, "The defendants are pro-
fessionals at this sort of thing, and they are the ones who have to do
the time." Defense attorney Richard Haynes noted, "Judges do not
want a lawyer who will shake the defendant off his plea. A lawyer
who does not understand this fact is unlikely to be reappointed."
Moreover, when an appointed attorney induced a client to reconsider
the bargain that he had entered, the attorney himself became respon-
sible for defending the client at trial. Most attorneys apparently con-
sidered their 50-dollar fees in these quick guilty-plea cases a pleasant
bonus; the task of persuading the prosecutor and the defendant to
accept a plea agreement had been eliminated, and usually the limited
time that an attorney devoted to his cases would otherwise have been
spent in idle waiting. Nevertheless, the bonus plainly became a burden
258. In Lamb v. Beto, 423 F.2d 85, 86-87 (5th Cir.), cert. denied, 400 U.S.' 846 (1970),
the court reported the testimony of a lawyer who had prosecuted the defendant in
Austin, Texas in 1944:
[A]t that time, in taking a plea of guilty where a defendant did not have an attorney
and when he agreed to plead guilty we simply went out into the hall of the court-
room or the district clerk's office or anywhere we could, we found an attorney and
told him we had a plea of guilty and wanted him to come in and sign the jury
waiver.... [O]rdinarily the attorney was not in the presence of the defendant for
more than ten or fifteen minutes .... Signing the jury waiver was about all .. .and
in many cases if the attorney were in a hurry ... he could come in and sign the jury
waiver and go on about his business.
The defendant testified that he had never met his attorney, but the Fifth Circuit none-
theless concluded that he had not been denied the effective assistance of counsel. It said
that an attorney's only duty in a guilty-plea case, "under the most liberal construction,"
was to ascertain whether the plea was entered voluntarily and knowingly. See pp. 1266-67
supra. How the court concluded that the defendant's attorney had done even this much
is something of a mystery. Apart from the testimony of the former prosecutor, the only
evidence that the defendant had received any representation at all was a court record
showing that an attorney had entered a pro formia appearance.
259. Alfano reported that defendants frequently asserted their innocence once their
attorneys had been appointed. On these occasions, the attorneys sometimes found it help-
ful to confront the defendants with the evidence contained in the prosecutors' files.
1273
when the attorney could not make the plea agreement "stick," and
this fact may have induced some attorneys to provide only the pro
forma representation that everyone apparently expected.
The most significant reason for the attorneys' regular ratification of
their clients' plea agreements was probably not, however, the attorneys'
selfish interests. Attorneys who carefully considered their clients' wel-
fare rarely found any reason to reject the prearranged bargains. "I
have been appointed on a great many occasions," said Clyde W. Woody,
"and I have yet to encounter a harsh bargain. Usually, the defendant
has been offered the bare minimum." Most defense attorneys conceded
that, as a group, unrepresented defendants secured more favorable plea
agreements than the attorneys were able to obtain for-their own clients.
Richard Haynes explained, "The D.A.s' policy is to keep the case
from a lawyer. The sentences that the prosecutors offer to unrepresent-
ed defendants are kept low simply to demonstrate that a person hurts
206
himself by demanding an attorney."
In Haynes's view, the practice of bargaining with unrepresented de-
fendants did lend itself to abuse, but the usual abuse was not the im-
position of harsh sentences. "The real danger," Haynes said, "is that
a person is likely to plead guilty when he is innocent."' 6t
Defense attorney Donald H. Flintoft described an incident that
demonstrated the lengths to which Houston prosecutors sometimes
went in their efforts to discourage exercise of the right to counsel.
In a bargaining session in a lock-up, a prosecutor had offered an un-
represented defendant a lenient sentence in exchange for his plea of
guilty. When the defendant was brought into the courtroom, however,
he began a conversation with Flintoft, who had represented him in
other cases. The prosecutor apparently concluded that he might have
been mistaken in thinking that the defendant lacked counsel. He
rushed up, interrupted the conversation, and said to the defendant, "Is
202
this guy your lawyer? If he's your lawyer, that deal we made is offl"
260. Haynes added that in their efforts to discourage exercise of the right to counsel,
prosecutors sometimes told bondsmen that their clients could be granted probation in
exchange for pleas of guilty. Once the bondsmen had relayed this message, the clients
usually saw little reason to retain attorneys.
261. Haynes recalled an illustrative case in which several unrepresented defendants
had agreed to plead guilty to aggravated assault. It developed that these defendants had
merely engaged in a voluntary fistfight with their supposed victims, so that they were
guilty of nothing more serious than disorderly conduct. "The prosecutor had offered a
rockbottom sentence on the assault charge," Haynes reported, "but the case was one
that should never have been filed."
262. A charitable interpretation of this incident would be that the prosecutor merely
recognized the impropriety of bargaining with a defendant who had already retained an
attorney. In fact, however, the prosecutor emphasized that the same favorable bargain
would not be available if Flintoft represented the defendant. He was not simply offering
to renegotiate the agreement.
1274
263. In 1972, a federal district court ordered the Sheriff of Dallas County not to
admit the "cop-out men" to the jail unless an inmate had affirmatively requested an
interview. This order was part of a broad injunction designed to correct a number of
unconstitutional jail conditions, and the court's opinion did not specify the legal grounds
on which its restriction of jailhouse bargaining rested. Taylor v. Sterrett, 344 F. Supp.
411, 423 (N.D. Tex. 1972), aff"d as modified, 499 F.2d 367 (5th Cir. 1974), cert. denied,
95 S. Ct. 1414 (1975). The district court's order was stayed for two years pending review
by the Fifth Circuit, but Dallas officials nevertheless observed the court's prohibition of
unsolicited visits by the cop-out men.
For a time, the court's decision apparently did not substantially reduce the amount of
bargaining with unrepresented defendants in Dallas. Douglas Mulder, Dallas's First As-
sistant District Attorney, reported that his office responded to the court's order by
supplying jailers with printed forms for prisoners to use in requesting meetings with
the "cop-out men." Large numbers of prisoners availed themselves of the opportunity.
Now, however, according to Mulder, the prevailing practice in felony cases is to appoint
counsel within 24 hours of incarceration and for prosecutors to bargain only with de-
fense attorneys.
264. In Gotcher v. Beto, 444 F.2d 696 (5th Cir. 1971), a Dallas "cop-out man" had
(apparently through inadvertence) negotiated a plea agreement with a jailed defendant
who had previously retained counsel. Another lawyer was then appointed to represent
the defendant at the entry of his plea. The court said, "While this court does not approve
of the practice of a member of the District Attorney's office visiting the petitioner with-
out the petitioner's counsel being present (unless he waives having counsel present), it
does not appear that this fact made the petitioner's plea involuntary." Id. at 698. Cf.
State v. Britton, 203 S.E.2d 462 (W. Va. 1974) (improper for prosecutor to engage in plea
discussions with defendant who he knew had retained counsel-error could not be con-
sidered harmless although defendant ultimately stood trial); ABA STANDARDS, supra note
55, § 4.1(b) ("It is unprofessional conduct for a prosecutor to engage in plea discussions
directly with an accused who is represented by counsel, except with counsel's approval");
ABA CODE OF PROF.SSIONAL Rr.SosmILT', Disciplinary Rule 7-104(A)(7) ("[A] lawyer
shall not communicate or cause another to communicate on the subject of the representa-
tion with a party he knows to be represented by a lawyer in that matter unless he has
the prior consent of the lawyer representing such other party or is authorized by law to
do so").
1275
1276
These decisions and others like them27 1 find some support in opin-
ions of the United States Supreme Court.2 72 I am aware of only two
rulings to the contrary. One, a decision by the Supreme Court of Illi-
nois, upheld bargaining between an unrepresented defendant and a
sheriff. This decision provoked a dissent by Justice Walter V. Schaefer,
who said, "In my opinion the stage of the proceeding at which a repre-
sentative of the prosecution induces a defendant to plead guilty is a crit-
270. Id. at 934-35. Cf. Hallworth, The Myth of the Jury Trial, COMMONWEAL, Apr. 25,
1969, at 161, 163:
[An individual charged with crime] lacks the general education, the technical educa-
tion, and the verbal abilities of the man who tells him that "it would be better" if
he plead[ed] guilty.... [Moreover,] the suspect is in no position, regardless of his
knowledge, to weigh with any degree of objectivity his chances in a trial by jury
procedure.... In plea-bargaining the suspect is unable to enter into the agreement
with any understanding of what is at stake or what the alternatives to a given or
prescribed course of action might entail.
See also Note, The Unconstitutionality of Plea Bargaining, 83 HARV. L. REV. 1387, 1391
n.21 (1970):
To guarantee a defendant counsel when he pleads, but not when he makes the
bargain that impels the plea and establishes his conviction and sentence, is to deny
him legal assistance when he most needs it.
271. Gallarelli v. United States, 441 F.2d 1402, 1404 (3d Cir. 1971) (Hastie, C.J.) ("[I]n
an adversary system, it is not the role of counsel merely to acquiesce in ... a decision
made independently by his client; it is the role of counsel to counsel"); Grades v. Boles,
398 F.2d 409, 413 (4th Cir. 1968) (absence of counsel at plea bargaining session "wholly
unacceptable"); Shupe v. Sigler, 230 F. Supp. 601, 606 (D. Neb. 1964); State v. Johnson,
279 Minn. 209, 156 N.W.2d 218 (1968); Rogers v. State, 243 Miss. 219, 136 So. 2d 331
(1962); Garnick v. Miller, 81 Nev. 372, 403 P.2d 850 (1965). See Myers v. State, 115 Ind.
554 (1888); ALI, A MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE § 350.3 (Tent. Draft No.
5, 1972) (nonwaivable right to counsel during plea negotiations); cf. Pontow v. State, 58
Wis. 2d 135, 205 N.W.2d 775 (1973) (bargaining with unrepresented defendant permis-
sible following warnings and intelligent waiver).
272. See Powell v. Alabama, 287 U.S. 45, 71 (1932) (requirement that counsel be ap-
pointed "is not discharged by an assignment at such a time or under such circumstances
as to preclude the giving of effective aid"); Avery v. Alabama, 308 U.S. 444, 446 (1940)
("Constitution's guarantee of assistance of counsel cannot be satisfied by mere formal
appointment"); Waley v. Johnson, 316 U.S. 101 (1942); Von Moltke v. Gillies, 332 U.S.
708, 721 (1948) (plurality opinion).
1277
ical stage at which a defendant requires the assistance of counsel. ' ' 2 - 1T
The other case in which bargaining with unrepresented defendants was
apparently approved arose when an appointed attorney ratified a bar-
27 4
gain that a defendant had entered with a Dallas "cop-out man."
The practice of providing lenient sentences to unrepresented de-
fendants for the purpose of keeping them unrepresented seems of-
fensive to constitutional ideals, but in our current system of criminal
justice, every legal right tends to become a counter to be traded for
a discount in sentence. Indeed, bargaining for waiver of the right to
counsel can be distinguished from plea negotiation itself on only the
most tenuous grounds. Like plea bargaining, this practice saves money,
simplifies the administration of justice, and provides a "break" that
defendants might not otherwise secure. The defenders of plea bar-
gaining might therefore pause to consider the implications of their
arguments for a different bargaining process that most of them would
unhesitatingly condemn327
273. People v. Bowman, 40 111. 2d 116, 129, 239 N.E.2d 433, 441 (1968).
274. Gotcher v. Beto, 444 F.2d 696 (5th Cir. 1971). On habeas corpus, a federal district
court rejected the defendant's claim that he had been denied the effective assistance of
counsel "during plea bargaining and at trial." Although the court reached this result
without considering whether plea negotiation was a "critical stage of the proceedings" at
which a defendant should be offered legal assistance, its opinion was approved by the
United States Court of Appeals for the Fifth Circuit. The district court had merely
relied on the testimony of the defendant's lawyer that, although he "could not specifically
recall having represented the petitioner," he "never allowed anyone to plead guilty if the
accused intimated that he was not in any way guilty of the offense." Somehow the court
concluded that this testimony established the attorney's compliance with the Fifth Circuit
standard; by determining that the defendant had not affirmatively protested his in-
nocence, the attorney had apparently also determined that the defendant's guilty plea
was knowingly and voluntarily made. The court's ruling seems especially outrageous in
view of the fact that the defendant had previously retained his own attorney, who was
hospitalized at the time that the defendant struck his bargain and accepted the last-
minute appointment of another attorney to enter his plea. See note 264 supra.
Another Fifth Circuit case can also be read as approving plea bargaining with unrep-
resented defendants, so long as a defense attorney is later appointed to ratify the agree-
ment. Lamb v. Beto, 423 F.2d 85 (5th Cir.), cert. denied, 400 U.S. 846 (1970), discussed in
note 258 supra.
275. Cf. People v. Byrd, 12 Mich. App. 186, 195 nA, 162 NAV.2d 777, 781 n.4 (1968)
(Levin, J., concurring).
1278
276. E.g., United States v. Rogers, 289 F. Supp. 726 (D. Conn. 1968); Polstein, How to
"Settle" a Criminal Case, P.Acr. LAw., Jan. 1962, at 35, 36; Doherty, Bullpen Ethics of a
Plea of Guilty, 24 LEGAL AID BRIEFCASE 123, 131 (1966).
277. E.g., People v. Byrd, 12 Mich. App. 186, 162 N.W.2d 777, 796 (1968) (Levin, J.,
concurring); Freedman, Professional Responsibility of the Criminal Defense Lawyer: The
Three Hardest Questions, 64 MICH. L. REV. 1469, 1473 (1966) (see also pp. 1480-81 & n.23,
where the author criticizes what he regards as the conventional viewpoint).
278. 400 U.S. 25 (1970). See pp. 1289-1306 infra.
279. Cf. J. EHRLicH, A LIFE IN MY HANDS 135 (1965) ("I wasn't happy at the prospect
of having [drummer Gene] Krupa expediently admit guilt for an offense of which I was
convinced he was innocent, but I felt that it was the lesser of two evils"); White, supra
note 24, at 451-52 (statement of Martin Erdman of the Legal Aid Society of the City of
New York).
280. Among the private defense attorneys who considered it improper to permit a
guilty plea by a defendant who claimed to be innocent were Sam Adam, Irene Bennett,
1279
Thomas E. Dwyer, William Ferdon, Richard H. Kuh, Irving Mendelson, Richard Haynes,
Monroe L. Inker, Joseph S. Oteri, John A. Pettis, Jr., J. Eugene Pincham, Henry Roth-
blatt, and Clyde W. Woody. Among those who maintained that "guilt or innocence is
irrelevant" were Johnnie L. Cochran, Jr., Francis J. DiMento, J.W. Ehrlich, Donald H.
Flintoft, Donald J. Goldberg, Whitman Knapp, Lloyd M. Lunsford, James Martin Mac-
Innis, Luke C. McKissack, Burton Marks, Gregory S. Stout, and Bernard Segal. For a
description of the position of public defenders on this issue, see pp. 1284-85 infra.
281. See Alschuler, supra note 7, at 61 (statement of San Francisco defense attorney
Benjamin M. Davis).
1280
282. The prosecutor's threat to bring the defendant to trial a second time may have
been a bluff, but his threat to return the defendant to jail to await a second trial was
not. Although the prosecutor might ultimately have decided to dismiss the charges against
the defendant, he was not in any hurry to make that decision.
283. Sam NV. Davis, a Houston trial judge, offered an anecdotal illustration of this
contention. As a defense attorney, Davis had represented an elderly woman charged with
murdering two other elderly women with whom she lived. "It was a clear case of self-
defense," the defendant had announced to her attorney at their first interview. "They
was a-killin' me by degrees."
1281
284. Ms. Bennett was unique among the attorneys whom I interviewed in one respect;
she claimed that in 38 years of a mixed civil and criminal practice, she had never en-
tered a guilty plea for any defendant. Cf. Lefcourt v. Legal Aid Soc'y, 445 F.2d 1150 (2d
Cir. 1971).
1282
285. Although courts are not notably receptive to claims that guilty pleas have been
coerced or to claims that defendants have been denied the effective assistance of counsel,
these claims are often asserted. In a recent five-year period, the Supreme Court of Mis-
souri heard appeals in 325 post-conviction proceedings. The most common ground of
complaint was that a guilty plea was involuntary-a complaint that was asserted in 143
cases, though the court granted relief in only seven. The second most frequent complaint
was that of ineffective assistance. Although this complaint was asserted in 130 cases, the
court granted relief (a remand for an evidentiary hearing) in only two. Anderson, Post-
Conviction Relief in Missouri-Five Years Under Amended Rule 27.26, 38 Mo. L. REv. 1,
6, 14-15 (1973).
Despite the manifest reluctance of the courts to find ineffective assistance, defense
attorneys often expressed intense concern about the prospect. When, for example, I asked
a lawyer in Manhattan whether changes in criminal procedure had influenced the
guilty-plea process, I anticipated a discussion of the effects of recent constitutional
decisions upon the defense attorney's bargaining position. The lawyer answered, however,
"Oh yes, criminal law has changed greatly in the last several years-and for the worse.
The criminal has moved higher and higher on the ladder, and his lawyer has been
denigrated. Today, defense attorneys are open game in every court."
286. In the United States District Court for Oregon, defendants who plead guilty are
required to complete a printed form supplied by the court. This form, headed "Petition
to Enter Plea of Guilty," contains the following provision:
I believe that my lawyer has done all that anyone could do to counsel and assist me,
AND I AM SATISFIED WITH THE ADVICE AND HELP HE HAS GIVEN ME.
Quoted in Erickson, The Finality of a Plea of Guilty, 48 NOTRE DAME LAw. 835, 846-47
n.80 (1973). Requiring defendants to praise their lawyers as having done "all that any-
one could do" illustrates a common response of some courts to the problems of the
guilty-plea system; adding new boilerplate to an adhesion contract can, in the view of
these courts, make any problem disappear.
The practice of plea negotiation may lead lawyers to take self-protective measures not
only in guilty-plea cases but also in cases that arc resolved through trial. In one recent
case, two lawyers, concerned about possible charges of ineffective assistance, advised the
judge at trial that they had urged their clients to plead guilty. Although the tendency
of this statement was plainly to prejudice the judge against the clients' claims of in-
nocence, the Illinois supreme court concluded that the defendants had not been denied
effective legal assistance. People v. McCalvin, 55 111. 2d 161, 302 N.E.2d 342 (1973).
1283
mand that their clients sign testimonials to the lawyers' energy and
ability, but they did prepare their own statements "for the files." The
members of one Boston firm regularly sent copies of these statements
to the court and to the prosecutor, and they also delivered a copy "in
hand" to each defendant and required him to sign it in the presence
28 T
of a witness.
Public defenders are probably more vulnerable than private at-
torneys to post-conviction proceedings alleging the ineffective assist-
ance of counsel, 28 8 and many defenders conceded that their reluctance
to enter guilty pleas on behalf of assertedly innocent defendants
stemmed largely from this fact. "I cannot defend our rule on gTounds
of principle," said Philadelphia's Vincent J. Ziccardi. "It is, frankly,
a self-serving rule. Public defenders do not have the same freedom as
private lawyers and cannot always employ the same procedures." Many
defenders, in fact, echoed the sentiments of Boston's Edgar A. Rim-
bold: "We have no 'rule' against permitting defendants to plead
guilty when they claim to be innocent. Our only 'rule' is that they
may not do so when they are represented by our office." These de-
fenders reported that when a client wished to plead guilty while as-
serting his innocence, their usual practice was to seek the court's
permission to withdraw from the case. They instructed the client to
request the appointment of a lawyer from outside the public defender
office, and, in effect, they passed their ethical problem to this out-
side lawyer. (The defenders apparently assumed that most defense at-
torneys would resolve the problem in accordance with their clients'
desires.)
Only a few public defenders unabashedly permitted their clients to
make the choice of plea whether or not they admitted their guilt.2 8
Among them was Paul G. Breckenridge, Jr., the Chief Deputy Public
Defender in Los Angeles. Breckenridge agreed that his office's failure
287. Cf. A. AMSTERDAM, B. SEGAL & -M. MILLER, TRIAL IANUAL FOR TIE DEFENSE OF
CRIMINAL CASES fJ 214 (1967) [hereinafter cited as TRIAL IIANUAL].
288. As this article has noted, public defenders are appointed attorne)s who have
not been selected by their clients; they represent a group of relatively distrusting and
hostile defendants; and they sometimes do provide a mechanical and impersonal sort
of representation. In addition, some courts have suggested that the effectiveness of
privately retained attorneys should be judged by a more lenient standard than that
applied in judging the effectiveness of court-appointed attorneys. E.g., People v. Morris,
3 111. 2d 437, 447, 121 N.E.2d 810, 816 (1954); Hall v. State, 492 S.W.2d 950, 951 (Tex.
Crim. App. 1973); contra, West v. Louisiana, 478 F.2d 1026 (5th Cir. 1973). See generally
Polur, Retained Counsel, Assigned Counsel: Why the Dichotomy?, 55 A.B.A.J. 254 (1969).
289. At least in Pittsburgh, Denver, and Los Angeles, defender offices follow this policy.
But see M. MAYER, supra note 13, at 162: "[Defender] offices, despite rumors to the
contrary, all maintain a policy of never urging a man to plead guilty unless he admits
his guilt."
1284
Most defender offices are afraid of their shadows. They are para-
noid about the possibility that a client may accuse them of mis-
conduct. But I'm a lawyer. My job is to protect my clients, not
myself. I have to have a thick skin.
1285
tions if a defense attorney suggested that his client might be innocent. See White, supra
note 24, at 460 n.103. Sometimes, however, there was a reason to doubt the sincerity of
these assertions.
For example, in a suburban preliminary hearing court in Cook County, Illinois, I saw
a prosecutor offer to permit a repeated offender charged with attempted murder to plead
guilty to a misdemeanor. The defense attorney conferred with his client and later told the
court, "The defendant wants to take the deal, but he says that he is innocent." The
prosecutor immediately objected that he would have no part of this arrangement. "A
defendant can plead guilty only if he is guilty," he told the court.
Earlier, however, in the trial judge's chambers, I had seen the same prosecutor exact a
"stipulation" of guilt from a defendant who vigorously asserted his innocence. In this
case, the defendant was accused of molesting a child, and the prosecutor had offered to
permit "supervision" (a continuance without a finding of guilt) if the defendant would
secure psychiatric help and report to the court at regular intervals. As part of the
agreement, the defendant was required to "stipulate" in writing to the truth of the
charge against him. (The prosecutor and the trial judge believed that the court could
enter a "judgment on the stipulation" without further proceedings if the defendant
violated the conditions of his "supervision." So far as I can tell, this proposition finds no
support in Illinois law.) The defense attorney reported that his client claimed to be in-
nocent and would not sign the stipulation. He added that the defendant's denials seemed
credible in light of his unblemished record and the failure of the supposed victim to
complain until more than a month after the alleged occurrence. The prosecutor, how-
ever, opposed the defense attorney's request for a "straight continuance" and demanded
that the defendant sign the stipulation. The defendant signed while still protesting his
innocence to the prosecutor and the trial judge.
291. See M. MAYER, supra note 13, at 196.
292. A few lawyers did suggest that a mere admission of guilt was not enough. They
said that they cross-examined their clients and refused to enter a guilty plea until they
were "more satisfied than the judge" of a defendant's guilt. When a guilty 'plea would
apparently serve a client's interests, however, and when the client has confessed and done
everything else that he can to enter the plea, it seems almost inconceivable that a lawyer
1286
would stand in the way of the client's intelligent choice. I suspect that few lawyers have
encountered cases in which, despite a client's confession and his desire to enter an ad-
vantageous plea agreement, the lawyers have had serious reservations about the client's
guilt.
ir
293. See TRIAL MANUAL, supra note 287, 215:
Views differ on whether a lawyer may advise (or even permit) a client to plead guilty
who protests his innocence. Fortunately, the moral question seldom needs arise ....
If counsel discusses the evidence critically with the client, and subjects him to the
sort of cross-examination which in every case will be necessary to prepare him for
trial, the client frequently will admit guilt.
294. Thus, when a Chicago defense attorney reported that he would not permit a
client to plead guilty if the client claimed to be innocent, I asked how he would treat a
case in which there was virtually no chance of success at trial-a case, for example, in
which a repeated offender claimed that arresting police officers had "planted" the
narcotics he was accused of possessing and in which the officers would certainly con-
tradict his testimony. The attorney replied, "I would simply question the defendant until
he told me the truth."
295. Nevertheless the use of these techniques was not confined to situations in which
defendants wished to plead guilty while asserting their innocence. Defense attorneys used
similar tactics when assertedly innocent defendants sought trials that the attorneys
thought would only harm their interests. See pp. 1191-92 supra.
1287
1288
1289
1290
to remain at his home after the defendant had asked her to leave, and when the de-
fendant took the woman's coat, the victim was one of the people who chased him.
These facts offered the only hint of any motive that the defendant might have had for
the killing. The events were therefore relevant, but the emphasis that they received and
the manner in which they were treated suggest that racism was not a thing of the past
in Forsyth County, North Carolina, in 1963. In a case in which the defendant's fear of
the death penalty apparently motivated his guilty plea, this background of racism seems
noteworthy.
301. 400 U.S. at 32 (quoting Brady v. United States, 397 U.S. 742, 748 (1970)).
302. 400 U.S. at 37.
303. Tremblay v. Overholser, 199 F. Supp. 569, 570 (D.D.C. 1961).
304. McCoy v. United States, 363 F.2d 306, 308 (D.C. Cir. 1966).
305. State v. Kaufman, 51 Iowa 578, 580, 2 N.W. 275, 276 (1879) (dictum).
306. 400 U.S. at 37.
307. Id. at 38 n.10.
308. Id. at 38 n.11.
1291
Within the context of the guilty-plea system, I believe that the A lford
decision makes sense, 30 9 but the case illustrates some incongruities
that this system has produced. For one thing, A lford effectively ob-
literates the historical distinction between pleas of guilty and pleas
of nolo contendere. Since the 15th century, courts have carefully dis-
tinguished between these pleas on the ground that a guilty plea con-
stitutes a factual confession while a plea of nolo contendere does not.-1"
Although both pleas result automatically in conviction, the distinction
between them has not usually been just one of nomenclature. Instead,
in most jurisdictions, the plea of nolo contendere has been unavailable
in cases involving serious offenses, and defendants in these cases have
been able to convict themselves only by confessing their guilt.3 11 The
Supreme Court in Alford thus resolved the problem of the "innocent"
defendant in a different manner than most Anglo-American courts had
resolved it, in serious cases, for the preceding 500 years.
Another problem is that Mr. Justice White's opinion for the Court
did not specify what kind of hearing a trial court must conduct before
accepting a guilty plea offered by an assertedly innocent defendant.
The Court plainly indicated, however, that some independent evidence
of guilt was necessary to justify the acceptance of an Alford plea. The
significance of this requirement depends, of course, upon the quality
of the evidence that trial and appellate courts in fact demand, and
it may be productive to consider a few alternatives.
The basic standard suggested by the Court was that there must be
a "factual basis for the plea"-just as there must, under the Federal
Rules of Criminal Procedure, be a "factual basis" for any guilty plea
1292
accepted in a federal court. 31' To say that a guilty plea must have
a factual basis is apparently to say-in a high-sounding way-that a
court must have reason to think that the defendant before it might
be guilty. 313 However, few defendants are arrested by the police,
charged by prosecutors, and indicted by grand juries in the absence
of some significant incriminating evidence. Virtually every defendant
in the criminal courts therefore "might be guilty," and in that sense,
there may be a "factual basis" for virtually every A lford plea.3 14 The
requirement that an A lford plea be supported by independent evi-
dence could thus become more a salve to troubled consciences than
a meaningful safeguard of the fairness of guilty-plea convictions. 315
If the presence of any significant incriminating evidence is enough to
establish a "factual basis for the plea," the requirement of a factual
basis seems relatively unimportant.
Of course no civilized legal system sends people to prison because
1293
316. The language of Rule 11 of the Federal Rules of Criminal Procedure was de-
liberately chosen to obscure this elementary principle. An early draft-amendment would
have required a federal trial judge to satisfy himself in a guilty-plea case "that the de-
fendant iA fact committed the crime charged." PRELIMINARY DRAFr OF PROPOSED AMEND-
MENTS TO RULES OF CRIMINAL PROCEDURE 3 (1962). This amendment would not have re-
quired the judge to follow any specified procedure; it would merely have told him to
determine to his own satisfaction that he was not subjecting an innocent person to
criminal condemnation. Nevertheless, this proposal was too strong for the committee that
drafted the Rule, and the amorphous requirement of a "factual basis for the plea" was
substituted. See I C. WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 174, at 377 n.75 (1969);
8 J. MOORE, FEDERAL PRACTICE ff 11.03[4] (2d ed. R. Cipes 1965).
The American Law Institute's Model Code of Pre-Arraignment Procedure requires a
finding of "reasonable cause" when a guilty plea is accepted. As with the federal rules,
the draftsmen rejected a stronger proposal that had been presented to them. ALI MODEL
CODE, supra note. 101, at 72, Note on § 350.4.
317. The Court indicated not only that there should be a "factual basis" for the plea,
but that a trial judge should "inquire... into and [seek] to resolve the conflict betwecn
the waiver of trial and the claim of innocence." 400 U.S. at 38 n.10.
1294
1295
When our criminal justice system fails to provide trials for defen-
dants who deny their guilt and who may in fact be innocent, the re-
sult is, of course, distressing. One may reasonably be offended by the
cheapness, the hypocrisy, and the injustice of a system that cares too
little about the truth to test a denial of guilt through the time-honored
mechanism designed for that purpose. For this reason, one may strong-
ly sympathize with a "rule" against permitting defendants to plead
guilty when they claim to be innocent (or, at least, with a rule for-
bidding a guilty plea when a defendant's denials of guilt may be
credible).
Nevertheless, I believe that such a rule is unconscionable within the
context of the guilty-plea system. The implications of our regime of
plea bargaining should be recognized, and cynical though this position
may seem, both courts and defense attorneys should recognize a "right"
of the innocent to plead guilty. So long as a defendant has something
to gain by entering a plea agreement, it is unfair to deny him the
choice. Whether the defendant denies his guilt, whether his attorney
319. A court can never confront this problem in terms quite so stark, for a court may
dismiss the case or acquit when it is convinced of a defendant's innocence.
1296
considers him innocent, and whether the trial court might feel more
comfortable after a trial should not be determinative. Indeed, because
the extreme pressures of the guilty-plea system can make it unwise
to run even a slight risk of conviction, 3-' not even the probability of
acquittal should stand in the way of a plea of guilty. This position
may be terrifying, but I believe that attempts to hedge and equivocate
merely aggravate the injustice of our inherently unjust system. The
A lford decision reached the correct result if the continued existence
of the guilty-plea system is assumed, and indeed, the only defect of
the court's opinion lies in its effort to qualify a defendant's power to
choose his own plea.
In practice, a "rule" against permitting defendants to plead guilty
when they claim to be innocent usually fails to achieve its goal. It
merely leads assertedly innocent defendants to make coerced confes-
sions to their attorneys and to the courts. 32 1 When the pressures of
the guilty-plea system are themselves inadequate for this purpose, more-
over, the rule encourages defense attorneys to employ interrogation
techniques that often seem destructive of the attorney-client relation-
ship.3 '-'2 My opposition to a rule against permitting the "innocent"
to plead guilty is not, however, based primarily on its ineffectiveness,
its destructive influence upon the attorney-client relationship, or the
apparently greater honesty of the opposite position. In my view, the
rule does its greatest damage on the infrequent occasions when it
works.
One statement of a defense attorney who refused to permit innocent
defendants to plead guilty effectively illustrated the incongruity of his
position. Said Clyde W. Woody of Houston, "I would not 'plead' a
client who told me that he was innocent even if it cost him 10 years."
Chicago's Sam Adam recalled a case in which his own "ethical rule"
had, in fact, resulted in approximately this penalty. Adam's client was
charged with attempted rape, and the evidence against him was over-
whelming. For one thing, the victim of the crime had bitten off part
of her assailant's finger, and the piece of nail and flesh from her mouth
matched the piece that was missing from the defendant's hand. Al-
though a prosecutor had offered to permit the defendant to plead
guilty to a misdemeanor, thereby insuring that his sentence would not
exceed one year, Adam declined the offer because the defendant in-
1297
sisted that he was innocent. After his conviction at trial, the defendant
was sentenced to a penitentiary term of one-to-ten years.
Los Angeles's Paul G. Breckenridge posed a difficult question for
the proponents of a rule against permitting the innocent to plead
guilty. He said, "Suppose that a trial could result in the death penalty.
Could a lawyer possibly tell a client that his sense of ethics required
a course that might result in the client's death?" There is, of course,
only one reasonable answer to Breckenridge's question: even if a de-
fendant denies his guilt and even if he would apparently stand a better
than even chance of acquittal, the choice must be his to make. It
would be unfair to force the client to run even a small risk of death
for the sake of his lawyer's peace of mind. Moreover, the problem
is not essentially different when penalties other than death are at issue.
In every case, it is the defendant who "must do the time," and for a
defense attorney or a trial court to insist on a course that could,
through no fault of the defendant's, add to his term of imprisonment
323
approaches the height of arrogance.
Ultimately, of course, the civilized solution to the problem would
be to eliminate the dilemma that confronts assertedly innocent de-
fendants under the guilty-plea system, to abolish the penalty that our
system exacts for exercise of the right to trial, and simply to give
every defendant who desires a trial his day in court. If we are un-
willing or unable to adopt this solution, we should at least permit
defendants to choose between the branches of the dilemma that we
'have thrust upon them. When our consciences cause us to deny the
coercive character of the system that we have created, we magnify its
injustice as we delude ourselves.
Although the Alford decision seems to represent a step toward hon-
esty, it has had surprisingly little effect. One might not, however, sense
its limited impact upon reading the decisions of state appellate courts.
The Supreme Court emphasized that "the States in their wisdom"
might prohibit Alford pleas, 3 24 but even states that had forbidden these
pleas prior to Alford have commonly reconsidered their position. The
Maryland Court of Appeals, for example, abandoned its requirement
that a defendant admit his guilt before entering a guilty plea, and
made the remarkable statement, "[T]he assertion of innocence does not
323. See Y. KAMISAR, W. LAFAVE & J. ISRAEL, MODERN CRIMINAL PROCEDURE 1161 (4th
ed. 1974) (letter from unnamed lawyer to Advisory Committee on Criminal Trial of A.B.A.
Project on Minimum Standards for Criminal Justice).
324. 400 U.S. at 39.
1298
325. Williams v. State, 10 Md. App. 570, 574, 271 A.2d 777, 779 (1970). See People v.
Canino, 508 P.2d 1273 (Colo. 1973); Robinson v. State, 291 A.2d 279 (Del. 1972); Cote v.
State, 286 A.2d 868 (Me. 1972).
326. Johnson v. State, 478 S.W.2d 954, 955 (Tex. Crim. App. 1972); State v. Brown, 3
Wash. App. 797, 477 P.2d 930 (1970). For the Supreme Court's discussion of prior rulings
in these states, see 400 U.S. at 33.
327. People v. Butler, 43 Mich. App. 270, 279 n.2, 280 n.4, 204 NAV.2d 325, 330 nn.2 &
4 (1972); McConnell, Memorandum to Assignment Judges and County Prosecutors,set forth
in State v. Korzenowski, 123 N.J. Super. 454, 456 n.l, 303 A.2d 596, 597 n.1 (App. Div.
1973); People v. Hill, 39 App. Div. 2d 949, 333 N.Y.S.2d 238 (1972); People v. Meadows,
35 App. Div. 2d 1003, 317 N.Y.S.2d 826 (1970).
The most bizarre response to the Alford decision has come from the Supreme Court of
Pennsylvania. In Commonwealth v. Sampson, 445 Pa. 558, 285 A.2d 480 (1971), the
court upheld the propriety of accepting a guilty plea offered by a defendant who denied
any involvement in the alleged crime. At the same time, the court said that a guilty plea
must be rejected if the defendant asserted "facts establishing an affirmative defense" to
the charge. Despite a strong protest by Justice Samuel J. Roberts, the court offered no
justification for its distinction between a complete denial and the assertion of an af-
firmative defense. The court claimed instead that this distinction was required by a
pre-Alford opinion, which read:
[I]f a defendant pleads guilty to a criminal charge, and in the next breath con-
travenes the plea by asserting facts which, if true, would establish that he is not
guilty, then his guilty plea is of no effect and should be rejected.... In other words,
a defendant should not be allowed to plead "guilty" from one side of his mouth and
"not guilty" from the other.
Commonwealth v. Roundtree, 440 Pa. 199, 202, 269 A.2d 709, 711 (1970). The Supreme
Court of Pennsylvania has applied its unusual distinction to reject a guilty plea coupled
with a claim of self-defense, Commonwealth v. Blackman, 446 Pa. 61, 285 A.2d 521 (1971),
and a lower court has effectively deprived the distinction of any meaning by ruling that a
defendant's denial that he had sold any drugs "clearly indicated that he was making an
affirmative defense to the charges against him." Commonwealth v. Thomas, 221 Pa.
Super. 418, 422, 293 A.2d 615, 617 (1972), rev'd on other grounds, 450 Pa. 548, 301 A.2d
359 (1973).
1299
A lford decision was not directed to the ethical problem of the indi-
vidual defense attorney: "The conscience of the court is one thing;
my conscience is another."32 Similarly, lawyers who based their re-
fusal to permit "innocent" defendants to plead guilty upon purely prag-
matic g-rounds reported that Alford had not affected their calculations.
"I still know that if I entered guilty pleas for defendants who asserted
that they were innocent, those letters from the penitentiary would
claim that I had coerced the pleas," observed Boston's Joseph S. Oteri.
The A lford decision has apparently had a more noticeable impact in
Cleveland-a city where the adherence of the public defender office
to a rule against permitting "innocent" defendants to plead guilty
had seemed problematic before the A lford ruling. 32 9 Defender William
T. Wuliger reported that his office now permits each attorney to re-
solve the issue for himself, and that his own policy is "to use plea
bargaining to minimize a defendant's exposure to punishment even
when he claims to be innocent." Wuliger added that the Alford de-
cision had been "very useful in overcoming the squeamishness of
certain judges."
Virtually everywhere else, however, lawyers reported that state and
federal trial judges, with only a few exceptions, refuse to accept A Iford
pleas. Many lawyers noted that this judicial refusal was one important
reason for their own continued adherence to the traditional "ethical
rule." Lawrence Linzer, a public defender in Manhattan, explained:
The impact of the Alford decision in this city has been close to
zero. I do not know a single prosecutor or a single judge who will
touch an Alford plea. Indeed, I recently had a client who con-
ceded that he was probably guilty. He was an alcoholic, however,
328. Although Hooley's position may have an initial appeal, a lawyer might reason-
ably conclude that the ethics of the situation do depend upon "the conscience of the
court." Indeed, when a court is willing to accept an Alford plea, it may seem unethical
for a lawyer to deny his client the power to enter it (whatever the lawyer's own opinion
of the Alford principle). Similarly, when a court is unwilling to permit a defendant to
enter an Alford plea, an attorney might reasonably regard the court's decision as con-
clusive (even when the lawyer personally believes that "innocent" defendants should be
allowed to plead guilty).
Why the problem of the "innocent" defendant has been viewed primarily as an
ethical problem for defense attorneys rather than as a legal problem for the courts is
somewhat mystifying. Apparently guilty pleas were once viewed unquestioningly as
factual confessions to the court, and it was considered unethical for an attorney to permit
a client to make a false confession. Under the guilty-plea system, however, as 'facts
gradually became less important than strategies, lawyers began to reconsider whether it
might be proper to employ the "guilty-plea strategy" on behalf of a defendant who denied
his guilt. Once courts themselves have ruled upon the issue, however, my own view is that
the defense attorney's "ethical problem" largely disappears.
329. See pp. 1285-86 supra.
1300
Refusal to accept an Alford plea even when the plea has a "factual
basis," even when it is "voluntary," and even when it is surrounded
by any other safeguards that a court might desire, is apparently con-
sistent with the terms of the Alford opinion:
Our holding does not mean that a trial judge must accept every
constitutionally valid guilty plea merely because a defendant
wishes so to plead. A criminal defendant does not have an abso-
lute right under the Constitution to have his guilty plea accepted
by the court .... 331
In this statement, the Supreme Court once again abandoned its sug-
gestion that a court should not "force any defense on a defendant in
a criminal case" and its suggestion that a defendant "must be permitted
to judge for himself in this respect." Under Alford, the choice is not
the defendant's but the court's, and a court's discretion to refuse an
A lford plea is apparently subject to no restrictions and no standards.
This result is, of course, consistent with the Supreme Court's reluc-
tance to view the problem of the "innocent" defendant as a problem
of constitutional law and with the Court's willingness to tolerate a
variety of approaches among the various states. The practical effect,
however, is to create a system in which defendants have no rights and
trial courts can do no wrong. Despite the Supreme Court's suggestion
that upholding a defendant's choice of plea serves important "human
values," this choice can apparently be denied on the basis of judicial
whim.
Considerations of federalism do not, of course, explain the failure
of the federal courts to adopt for themselves a uniform policy toward
Alford pleas, and indeed, the Supreme Court indicated that it might
in the future "delineate the scope" of a federal judge's discretion to
refuse to accept these pleas. 3 32 The United States Courts of Appeals,
however, have not yet begun any effort to confine the discretion of
federal trial judges; they have instead insisted that this discretion is
virtually unlimited.
330. Cf. the New York appellate decisions cited in note 323 supra. These decisions by
the Appellate Division's Second Department are not controlling in Manhattan, but they
may have influenced the attitude of Manhattan trial courts.
331. 400 U.S. at 38 n.11.
332. Id.
1301
months' imprisonment.
The United States Court of Appeals for the First Circuit found no
error in the trial judge's refusal of the Alford plea or in the penalty
that the judge apparently imposed as a result of this refusal. The court's
opinion emphasized that Al ford had merely authorized the acceptance
of a guilty plea in the circumstances of the case, suggested that it would
be inappropriate to require a court "to fine and jail a person who
has not been tried and who protests his innocence," and expressed
concern that a contrary ruling would invite defendants who were dis-
satisfied with their sentences to "freely litigate" the propriety of the
336
courts' rejection of their guilty pleas.
1302
Cases of this sort seem to suggest two distinct issues: first, what
discretion a trial court should have to refuse an Alford plea, and sec-
ond, what sentence a court should impose when an A lford plea has
been rejected. To impose a penalty for standing trial may always be
objectionable, but this practice seems especially objectionable when
the decision to stand trial was not the defendant's but the court's. In
this situation, the defendant has offered to save the state the burden
and expense of a trial, and the court, for its own reasons, has decided
to reject the offer. To deny a defendant who has submitted an Alford
plea the benefits that usually follow a decision to plead guilty is there-
337
fore to deny him equal treatment.
A recent decision of the Vermont supreme court indicated the irony
of the situation. In adult criminal proceedings, a juvenile defendant
had sought to plead guilty to second-degree murder, an arrangement
that was acceptable to the prosecution. The defendant had refused to
make an unequivocal admission of his guilt, however, and his guardian
ad litem successfully urged rejection of the plea. The guardian re-
marked that she had known the defendant since he was two years old
and that "she knew he would never do such a thing." The defendant
was then convicted at trial of first-degree murder, and the Vermont
supreme court found no error in the trial court's refusal to permit
him to plead guilty to the lesser offense. The court explained that
the purpose of the trial had been "to protect the rights of the re-
338
spondent."
permitted to seek a guilty plea to a lesser offense. The majority, however, did not discuss
or even describe the facts of the case. Its per curiam opinion read in its entirety, "The
judgment is affirmed." The court's ruling seems especially disappointing in view of the
fact that Griffin v. United States, supra, had indicated the court's willingness to review
a trial court's rejection of an Alford plea. Other Court of Appeals' decisions upholding
the apparently unlimited discretion of federal judges to reject Alford pleas are United
States v. Melendrez-Salas, 466 F.2d 861 (9th Cir. 1972); United States v. Pineda-Espinoza,
455 F.2d 498 (9th Cir. 1972). State courts have similarly indicated that trial judges may
reject Alford pleas whenever they choose. State v. Brumfield, 14 Ore. 273, 511 P.2d 1256
(1973); State v. Reuschel, 131 Vt. 554, 312 A.2d 739 (1973).
337. This argument proceeds from the assumption that the benefits which usually
flow from a guilty plea are a reward for saving the state the burden of a trial. One
might respond, however, that by submitting an Alford plea, a defendant who is later
found guilty exhibits a lack of remorse and an unwillingness to face the truth. He is, in
these respects, indistinguishable from a guilty defendant who asserts his innocence at
trial, and it is therefore appropriate to impose the sort of sentence associated with a trial
following his conviction. One obvious difficulty with this answer is that all defendants
who submit Alford pleas exhibit the same lack of remorse. If "remorse" provides the
rationale for leniency to guilty-plea defendants, defendants whose Alford pleas are
accepted should presumably be sentenced as severely as defendants who stand trial. No
coherent theory of punishment could make the trial judge's decision to accept or reject
a guilty plea a critical determinant of the sentence that a defendant should receive, and
the problem of inequality is therefore inherent.
338. State v. Reuschel, 131 Vt. 554, 312 A.2d 739 (1973).
1303
One possible view is that a trial court should retain its discretion
to refuse an A lford plea, but that a court which exercises this option
should not sentence the defendant more severely than it would have
if his guilty plea had been accepted. Adoption of this view might,
however, lead to intricate maneuvering by defendants to secure the
rejection of the guilty pleas that they had offered. The defendants
might hope to secure the benefits associated with a trial as well as
those associated with a plea of guilty. Our cost-minded courts have
seemed alert to this danger,339 and in practice, courts which reject
Alford pleas must choose between allowing defendants to "have it both
ways," thereby undercutting the effectiveness of the guilty-plea system,
and penalizing defendants for decisions that were not of their making.
The refusal of most trial judges to accept A lford pleas is probably
attributable in part to their personal conviction that these pleas are
improper, in part to the inertia of their pre-Alford practites, and in
part to their perception of the effects that A lford pleas might ultimate-
ly have upon our concepts of criminal justice. Trial judges seem to
sense that once they began to allow A lford pleas, more and more de-
fendants might seek to enter them. Whether or not these defendants
recognized their guilt, they would probably see no reason not to ac-
company their pleas with face-saving denials of culpability-"grace
notes" that coild enable the defendants to pretend to their families,
to their friends, or perhaps even to themselves that they were the
hapless victims of circumstance. Ultimately most defendants might be
convicted of crime without trials and without admissions of guilt, and
this situation might force us to blink hard.
To put the matter another way, the utility of the A lford plea may
seem apparent if one thinks only of a small group of obviously guilty
defendants who are psychologically incapable of admitting their guilt.
Nevertheless, no mechanism can effectively confine use of the Alford
plea to this situation. Once the plea is allowed, the compulsion upon
a defendant to admit his guilt disappears, and when a defendant in-
sists that he considers himself innocent at the time that he submits
a guilty plea, it becomes impossible to tell whether he truly needs
the crutch that an in-between plea provides. Thus, even if Alford
pleas seem tolerable in small numbers, that conclusion may not settle
the issue. The A lford plea could gradually become the usual plea in
339. See United States ex rel. Williams v. McMann, 436 F.2d 103, 106-07 (2d Cir.
1970), cert. denied, 402 U.S. 914 (1971) (elimination of penalty for standing trial merely
because defendant had tried to plead guilty would "encourage gamesmanship of a most
offensive nature"); United States v. Bednarski, 445 F.2d 364, 366 (lst Cir. 1971).
1304
I know that the Court will not permit anyone to plead "GUILTY"
who maintains that he is innocent and, with that in mind and
because I am "GUILTY" and do not believe I am innocent, I
wish to plead "GUILTY" and respectfully request the Court to
accept my plea of "GUILTY" and to have the Clerk enter my
plea of "GUILTY" as follows: .... 341
340. Cf. Peete v. Rose, 381 F. Supp. 1167 (W.D. Tenn. 1974); Young v. State, 438
S.W.2d 280, 283 (Mo. 1969).
341. This "Petition to Enter Plea of Guilty" is used by the United States District
Court for Oregon. It is quoted in Erickson, supra note 286, at 846 n.80.
342. E.g., ABA CODE OF PROFESSIONAL RESPONSIBILITY, Disciplinary Rule 7-102(A)(7).
Of course an attorney never knows in any absolute sense that his client's confession to
the court is a lie, but in ordinary usage, an attorney "knows" that a client is lying when
the client has given the attorney a different version of the facts than he presents to the
court. Cf. Bruce v. United States, 379 F.2d 113, 119 n.17 (D.C. Cir. 1967):
It has been raised as a problem of ethics whether an attorney may advise the de-
fendant first that the evidence implicating him is so overwhelming that a guilty plea
is his best salvation, and second that this plea will not be accepted unless the de-
fendant, departing from truth if need be, states facts that show he is guilty....
We have no hesitation in saying that an attorney, an officer of the court, may not
counsel or practice such a deliberate deception.
Section 5.3 of the ABA STANDARDS, supra note 97, provides:
If the accused discloses to the lawyer facts which negate guilt and the lawyer's in-
vestigation does not reveal a conflict with the facts disclosed but the accused persists
in entering a plea of guilty, the lawyer may not properly participate in presenting
a guilty plea, without disclosure to the court.
1305
Martin MacInnis expressed: "I simply tell the judge in chambers that
if he asks whether the defendant is guilty, the defendant will say no.
The judge never asks." There could be no clearer indication, of
course, that the procedures surrounding the acceptance of guilty pleas
are usually not intended as serious safeguards of the plea bargaining
process; the function of these formalities is simply to package a
guilty plea in the way most likely to make post-conviction proceedings
34 3
disappear.
Other attorneys freely admitted that they advised their clients to
lie, explaining to the clients that the courts would not accept their
pleas unless they did so. Some lawyers seemed to justify this practice
as a form of civil disobedience. Said a Boston lawyer, "My view is that
a client has a right to lie for probation-at least so long as the courts
surround the acceptance of a guilty plea with such outrageous bull-
shit." Other lawyers viewed a defendant's admission of guilt as "a
joke," "a game," or "a fiction, like Nevada domicile in a divorce ac-
tion." These lawyers supported their position by pointing to other
fictions in the courts' guilty-plea rituals, particularly the requirement
of a negative answer to the question, "Have any threats or promises
been made to induce you to plead guilty?" Since at least part of the
procedure is hypocritical and contrived, these lawyers apparently as-
sumed that all of it was. The problem of the "innocent" defendant
obviously remains unresolved in the American legal system, and from
my perspective, no solution short of the abolition of all forms of plea
bargaining can satisfactorily settle the issue.
1306
345. Several courts apparently share this attitude. In Williams v. Beto, 354 F.2d 698,
705-06 (5th Cir. 1965), the court declared:
When one seeks the assistance of counsel, he thereby confesses his own inadequacy in
the field and stipulates his willingness... to be bound by the presumably superior
knowledge of the professional man on whose assistance he proposes to depend.
If the indigent client, conferred upon and trusted to the lawyer, knows more about
what ought to be done in handling the case, then he needs no counsel and it is
folly for him to ask for it.
See Williams v. United States, 345 F.2d 733, 737 (D.C. Cir. 1965) (Burger, J., concurring),
cert. denied, 382 U.S. 942 (1965) ("As I see it [the] lawyer must be free to follow his own
professional judgment and conscience no matter what his client thinks or be entirely
free to withdraw"); Steward v. People, 498 P.2d 933, 934 (Colo. 1972) ("Defense counsel
stands as captain of the ship in ascertaining what evidence should be offered and what
strategy should be employed in the defense of the case"); Schnautz v. Beto, 416 F.2d
214, 215 (5th Cir. 1969) ("This is a good tine to make it plain that when a defendant has
counsel, as he did here, that counsel is the manager of the law suit"); Nelson v. Cali-
fornia, 346 F.2d 73, 81 (9th Cir.), cert. denied, 382 U.S. 964 (1965) (counsel as "manager
of the lawsuit"). But cf. Henry v. Mississippi, 379 U.S. 443 (1965); Fay v. Noia, 372 U.S.
391 (1963); P. BATOR, P. MISHKIN, D. SHAPIRO & H. WECHSLER, HART & WECHSLER'S THE
FEDERAL COURTS AND TIlE FEDERAL SYSTEm 558 (2d ed. 1973); Y. KAMISAR, W. LAFAVE & J.
ISRAEL, MODERN CRIMINAL PROCEDURE 1539-43 (4th ed. 1974).
1307
the basic function of the defense attorney should be to serve his client
in exercising his legal rights as he chooses. The traditional role of
the attorney is to advise and counsel, not to control.
The general principle that an attorney is the agent of his client
could be extended too far. If a litigant were to insist that his lawyer
quote Bob Dylan in his closing argument, the lawyer could properly
respond that he did not practice law that way, just as a doctor could
reasonably deny a patient's request that he treat the patient's fever
by applying leeches.3 4 6 The fact that the defendant's liberty is at stake
and that the course which he suggests is within the options allowed
by law need not be determinative; the lawyer's interest in the effec-
tive conduct of his profession and in the integrity of his own per-
sonality should sometimes prevail. Nevertheless, the choice of plea is
not a mere question of tactics; it involves the most basic of the de-
fendant's rights. For this reason, courts insist that a guilty plea must
be entered by a defendant personally after full advice concerning its
consequences. Although the letter of this requirement is almost in-
variably observed in the courtroom (after the decision to plead guilty
has been made), its spirit is often forgotten in the place where it
counts-the defense attorney's office.
The ideal attorney-client relationship should rest upon a natural, in-
formal give-and-take. When an attorney recognizes the importance of
the client's interests and respects his right to make important choices
for himself-and when the client trusts his attorney, his knowledge,
and his judgment-there is little need for a blueprint to allocate re-
sponsibility for the decisions that both parties are required to make.
When a blueprint does become necessary, however, a productive start-
ing point is the American Bar Association's Standards Relating to the
Defense Function. These standards suggest that although a defense
attorney should be allowed to decide such questions as what witnesses
to call, how to conduct a cross-examination, and what jurors to accept
or strike, at least three decisions should ultimately be made by the
client-what plea to enter, whether to waive a jury trial, and whether
34
to testify in his own behalf. 7
346. The imagery was suggested by Bart Wulff, a University of Texas law student.
There are undoubtedly exceptions to the principle that an attorney should follow the
instructions of his client regarding choice of plea. All of these exceptions, however, would
rest on a lawyer's perception that his client had asked him to do something improper,
not on simple disagreement with the wisdom of the client's choice.
347. ABA STANDARDS, supra note 55, § 5.2 (1970). See Comment, Criminal Waiver: The
Requirements of Personal Participation, Competence and Legitimate State Interest, 54
CALIF. L. REV. 1262, 1267-68 (1966).
1308
1309
upon his client. This principle can, however, be given concrete mean-
ing in at least one situation. A defense attorney should neither with-
draw nor threaten to withdraw from a case because his client has
refused to enter the plea that the attorney has recommended. Pro-
fessional codes should, in my view, be revised to make this action
grounds for professional discipline. If, after all the badgering, the
cajolery, and the verbal abuse is concluded, a defendant still insists
that he wishes to stand trial, the attorney's ethical obligation is simply
to carry out his client's decision. Having undertaken the defense of
a person accused of crime, the attorney must respect his client's desire
to exercise the most basic of his rights.
This article has focused primarily on the unfairness of the guilty-
plea system to criminal defendants, but in many ways, the system is
unfair to defense attorneys as well. Although practices that seem abu-
sive are sometimes undertaken for the most objectionable and selfish
of reasons, they are often undertaken out of genuine concern for the
clients whom a lawyer is sworn to represent.
Most defendants do not understand our system of criminal justice
and cannot be made to understand. They are, in the main, too op-
timistic: they believe that if their attorneys were willing to fight
vigorously on their behalf, they might be acquitted. They suspect,
however, that the "legal establishment" (including perhaps their own
attorney) is conspiring to deprive them of the right to trial, and
even when defense attorneys have the time for patient explanations
(as they often do not), defendants may not fully realize the extent of
the penalty that our system exacts for an erroneous tactical decision.
For these reasons, a Chicago public defender observed, "A lawyer
shirks his duty when he does not coerce his client," and this statement
suggests a fundamental dilemma for any defense attorney working
under the constraints of the guilty-plea system. When a lawyer refuses
to "coerce his client," he insures his own failure; the foreseeable re-
sult is usually a serious and unnecessary penalty that, somehow, it
should have been the lawyer's duty to prevent. When a lawyer does
"coerce his client," however, he also insures his failure; he damages
the attorney-client relationship, confirms the cynical suspicions of the
client, undercuts a constitutional right, and incurs the resentment of
the person whom he seeks to serve. The defense attorney's lot is
therefore not a happy one-until he gets used to it.
350. Cf. Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973) (counsel's threat to
withdraw held coercive under circumstances of the case).
1310
351. At least this statement represents the conventional wisdom. See ABA STANDARDS,
supra note 55, § 3.2, comment at 204-06. For a different view, see Steinberg & Paulsen,
supra note 70, at 33. Sheila Finneran asked 14 public defenders and private defense at-
torneys in San Jose, California, whether they considered it important to learn the truth
from their clients. Only half of the lawyers said that they did. S. Finneran, Interviewing
the Client Accused of Crime, Fall 1973, at 27 (unpublished paper on file at the University
of Texas Law School Library).
352. After a long and unsuccessful trial, Milton Adler of the Legal Aid Society of
the City of New York talked with some of the jurors about their verdict (an action per-
mitted by New York law). One juror said to him, "Mr. Adler, you're a marvelous lawyer,
but how on earth could you believe that awful man was innocent?" Adler did not, in fact,
believe that the "awful man" was innocent, but he was too tired to deliver a lecture on
the adversary system and did not wish to "spoil" the jurors for future cases. He therefore
gave the jurors a one-sentence description of the lawyer's role in an adversary system: "I
believe my clients."
Although Adler's statement was not strictly accurate, it expresses an ideal toward which
lawyers can often strive in adversary proceedings. The question that prompted Adler's
remark shows how close they can come; a lawyer can usually act as though he believes
his clients whatever his secret reservations.
1311
My favorite client is the old con who says, "Look, I know that
the odds are against me and that I may go away for a long time,
but if you think that we have any chance of beating this case,
I want to take a run at it."
1312
Conclusion
The problem of providing effective representation within the frame-
work of the guilty-plea system is a problem that cannot be resolved
satisfactorily. Contrary to the assumption of the Supreme Court and
other observers that plea negotiation ordinarily occurs in an atmos-
phere of informed choice, private defense attorneys, public defenders,
and appointed attorneys are all subject to bureaucratic pressures and
conflicts of interest that seem unavoidable in any regime grounded
on the guilty plea. Far from safeguarding the fairness of the plea-
negotiation process, the defense attorney is himself a frequent source
of abuse, and no mechanism of reform seems adequate to control the
dangers.
As dilemmas multiply, it may be desirable to step back and re-
examine the assumptions that an apparent "practical necessity" has
thrust upon us. The difficulty of providing effective representation
within the guilty-plea system may reflect the intolerable nature of the
system itself. The assumption that some form of procedural tinkering
or some appeal to professional ideals can resolve every difficulty ob-
scures the nature of the system that we have created-a system in which
vital consequences turn on a judgment that is irrelevant to any ra-
tional goal of the criminal process and in which the defense attorney
invariably has personal interests that depart from those of his client.
The burden should rest with the advocates of plea bargaining to
propose some mechanism that can achieve the asserted advantages of
the guilty-plea process without, at the same time, yielding the abuses
that this article has described. If, as I believe, the task is impossible,
we must either endure these abuses or else restructure our criminal
justice system to eliminate the overwhelming importance of the de-
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