Wednesday, November 22, 2006

When you roll the dice, sometimes you come up snake eyes...

Someone got sentenced last week. He had a plea deal in place, but elected to plead straight thinking he could do better than the offer, and he had some great arguments for lenience. Well, he did worse than the offer on both the front AND back ends.

Some years ago, I remember the British nanny murder trial. Her attorneys made a tactical choice not to ask for a lesser included instruction- it was guilty of murder or not guilty at all. She lost. Snake eyes. However, the Court reduced the conviction to manslaughter and sentenced her to time served. In the ruling, the Judge said "A court... is not a casino." Snakes eyes to seven, albeit the hard way.

This is not the way the system ought to work. It really isn't a game, and yet everything we do is basically playing "Let's Make a Deal." Do you take the not entirely satisfying prize you already have, a set of luggage, perhaps, or do you opt for Door Number 3? It may be a car, it may be a goat.

It makes it virtually impossible to represent people in garden variety cases- the kind that always result in a guilty plea- with clients who have non- garden variety circumstances. The guy who simply gets drunk and starts brawling maybe doesn't deserve a break- but the guy whose wife just left him or who lost his job or who maybe learned his mother has cancer does. What of the guy who has mental health problems that do not rise to the level of a legal defense? What are these people to do?

There are two conflicting considerations here- the system tries to treat all defendants the same, while also trying to treat everyone as an individual. Try explaining that to a client, who may have serious cognitive disabilities, or who might simply be uneducated. "Well, the court will consider your background, your education, all sorts of things. But the guidelines still say you're supposed to do at least three months in jail."

So, Mr. Client, are you different enough to merit a three month reduction down to just probation? Or are you not different enough? Or, will your background instead give the judge a reason to go up, because you, Mr. Client, should have known better than to forge a check?

A court may not be a casino, but at least a casino is predictable- always split aces and eights, and double all elevens and tens.