True versus False: A False Dilemma

I encounter negative perceptions of criminal defense lawyers frequently. Of course, I am resigned to accept them, and I suffer no illusion that I will bring about any sea change in this regard. However, I will observe that one of the root causes of these negative perceptions is the belief that we criminal defense lawyers, as a matter of necessity, encourage our clients to lie to the court, or that we lie to the court on their behalf. This is a tragic misunderstanding of a criminal defense lawyer's vital role. The minority of criminal defense lawyers that commit these abominations should be disbarred, and they sometimes are. Setting the ethical considerations aside for a moment, lying to the court is not "the" solution to the problem. This belief, again, reflects a major misunderstanding.

A recent article in the LA Times exposed a troubling thing about traffic court which is that people who are not represented by lawyers tend to self-incriminate (either by telling the truth or by saying things which make themselves appear guilty regardless of the truth of the matter) under a mistaken belief that they are actually helping themselves. A common way they do so is by pleading "guilty with an explanation". And, what might not be so well understood is that the court has far less interest in the "explanation" part than it does in the "guilty" part. The famous Far Side cartoon depicting the difference between dogs and cats where the dog hears "fido, blah blah blah" and the cat hears just "blah blah blah blah" illustrates the point here. Analogously, the judge hears "guilty, blah blah blah". Occasionally an "explanation" is so compelling and, more importantly, so believable, that it might differentiate itself from the pack of likely explanations. Judges hear it all and they hear it all day long. The "explanations" don't vary that much. And what's really telling is that the compelling and believable "explanation" that worked for the last guy who got his fine substantially reduced, or his case thrown out, is often repeated with little editing by the next several folks.

Many plead guilty with an explanation with the consciousness that saying they are "guilty" amounts to self-incrimination. Others seem to behave as though they are talking to a friend, and if they present a sympathetic story, their loving and forgiving "friend" in the black robe is going to let it go this time. After all, to err is human, to forgive is divine. And aren't people in robes, by the way, supposed to be divine.

It is understood that the Catholic faith puts emphasis on the cleansing aspect of a confession. It is, in a moral sense, important to restore what you have stolen from justice by "taking responsibility". I am down with that. However, the big fallacy is that the government (in the form of a courthouse) affords the only opportunity to do so. You can, and probably do, feel badly about what you have done wrong. If you don't, you are probably a sociopath, or are indulging yourself in some kind of denial, at least. There are numerous ways you can "pay it back". You can feel bad, which is a form of self-imposed punishment; but maybe not altogether satisfying to society nor those whom you have harmed. You can say "sorry" directly to the person(s) you have injured and offer to pay for or otherwise correct the problem you have caused for them (if it is feasible to do so). You can confess to a member of your clergy, your therapist, your lawyer, etc. You can devote your time and money to good causes. You can swear to yourself to never do anything of the kind again and follow through. Clearly, there are numerous ways to accept responsibility for wrongdoing that have nothing to do with a court of law. To say otherwise is to assume that the population consists of mere children who need to be spanked by the government before they will understand that what they did was wrong. To say otherwise is to assume that if you do suffer punishment for your wrongdoing in court that you have made it all okay. Of course both of these assumptions are faulty. The government is not the sole arbiter of morality, and the fact is, the government is incompetent to restore justice in many cases where a wrong has been committed in spite of its laudable, and necessary, effort to do so.

I do not call for the dissolution of the government, nor the judiciary, but I would call upon my fellow human beings to have a more balanced view of what is really going on in court. The defendants in court are neither all "crooks" that deserve stiff punishments, nor are they all "saints" who are going to be recognized as such and given a pass this time by a judge with an impeccable intuition. Most of the defendants are every day people who have made one or more bad choices. The court does not behave as their friend. In our adversarial system a court of law is a place where litigants who let their guard down are routinely taken advantage of by the other side. A corrollary to this concept is the right every criminal defendant enjoys: the right against self-incrimination; or simply put, that the prosecution must be able to prove you guilty. You are under no obligation to prove yourself guilty, and it is generally unwise to do so. If there is any proof problem whatsoever, you are advised to plead "not guilty" and to remain silent unless and until it becomes very obvious that you are going to be found guilty anyway, or that there is something to gain by self-incriminating (e.g., a favorable plea bargain).

A letter to the editor in today's Times criticized the above-linked article because it seemed to suggest, to the letter writer, that defendants should lie to the court. After all, lying is THE alternative to telling the truth, isn't it? I hope, by now, you can see that that is a false dilemma. Pleading not guilty is not lying. Remaining silent is not lying. Causing the prosecution to do their job, which is to prove you guilty, is not lying. Get it?

Pleading Not Guilty

The effect of one man and, more precisely, one man's wealth and fame on popular perceptions of the American brand of criminal justice is immeasurable. Of course I am referring to the original O.J. Simpson case. So many people who watched the case unfold more than 10 years ago feel that they learned one or more things about how the system functions, or malfunctions... The "lesson" cited most often is that guilty people sometimes go free; particulary wealthy guilty people.

I recall OJ making his first appearance on homicide charges where he declared that he was "Absolutely, positively, 100 percent, not guilty". I don't know who counseled him to modify the plea of "not guilty" but, if anyone did, it was more likely a publicist than a lawyer. "Not guilty" is one of only six permissible pleas to one or more criminal charges in California. Others are: guilty, nolo contendere, prior conviction, once in jeopardy and not guilty by reason of insanity. There is no legally cognizable plea of "Absolutely, not guilty" much less "Absolutely, Positively, 100 percent, not guilty". In all likelihood, OJ said it with so much emphasis because he knew the whole world of mostly non-lawyers was watching, and there is something about saying "not guilty" that just sounds, well, guilty.

The truth is, any time someone sets foot in a courtroom, as a criminal defendant, nearly every spectator and participant assumes that there must be some truth to the charge(s), otherwise the person would not be charged. So, saying "not guilty", however emphatic, lacks the persuasive force it would otherwise have. If we, as a society, weren't already conditioned to believe that nearly everyone charged is guilty, then we might actually listen with interest to what the plea is. What is not as widely understood is that nearly everyone who is criminally charged pleads "not guilty" - or at least authorizes an attorney to say it for them - at the beginning of the case. And there is a reason for this. Saying the words "not guilty" is the only legally recognized way to express the four most common states of mind held by a charged individual, which are: (1) "I am innocent",(2) "though I might be guilty, the state can't prove me guilty", (3)"I am guilty of some, but not all of the charges", or (4) "I am guilty as charged but am not ready to make a deal with the prosecutor right now". The lack of readiness may be because the charged individual wants to know more about the strength of the case against him and/or what the punishment will be, and whether any deal offered as of yet is the best deal he can get. So, "not guilty" is not a lie in cases where the person is actually guilty.

In traffic court you will hear people say they are "guilty with an explanation". These are, however, guilty pleas where the court is allowing the individual to blend their guilty plea with their argument for a lenient sentence. Such "pleas" are not permitted in non-traffic criminal court, and never result in anything other than a conviction of the charged offense.

To make matters more complex, there is a type of plea that permits an assertion of innocence along with a plea of nolo contendere. Such pleas in California are made pursuant to a case called the People v. West (1970) 3 Cal.3d 595. A "West plea" is most likely to stand for a plea which "does not constitute an express admission of guilt but only a consent to be punished as if guilty." Plea bargaining, which is often analogized with sausage-making, leads to many fictions and, at the fringes, injustices both large and small. A reality of our, and perhaps any, justice system is that people occasionally plead guilty to charges they didn't commit, and plead guilty to having done something criminal even where they haven't done anything criminal. This is what comes about by way of the immense legal leverage the legislature, and the voting public, has given to our prosecutors. It happens that people who are innocent sometimes agree to plead to a charge in order to eliminate a risk of a particular undesirable outcome (e.g., lengthy incarceration).

The most useful way to think about a criminal case, if you are the person charged, is that it is, at its core, a business transaction. The state wants one or more things from you and what you want in return is fairness. In many cases, the only way to achieve fairness in return for your eventual plea of "guilty" or "nolo contendere" is to, at first, plead "Not Guilty".