A question defense counsel get throughout their career is, “How can you defend those people?” Certainly, there are occasions where we very much dislike our clients and detest the crime they committed, particularly when the crime involves violence against a child or sexual battery on a child or an adult (some lawyers may have other crimes they have particular problems with, these are just mine). Their responses vary, but most often they are these three.
1. The vast majority of defendants are impoverished. Some grew up in an abusive household or without a parent—usually a male parent. Most are Black or Hispanic. A large percentage are mentally ill or have a severe substance abuse problem and should receive treatment instead of incarceration. Indeed, the prisons have become warehouses for the mentally ill who perpetrate non-violent offenses. For many lawyers, representing criminals is their way to address a racist criminal justice system. And representing people who have committed even the most heinous crimes is important because these people have often been broken by having grown up in horrific circumstances or are so mentally ill (even if not legally) that their lives should be spared.
2. Then there are those lawyers who believe that the imprisonment of a person who is not guilty of a crime is a major injustice, and the execution of an innocent person is state murder. They believe that unless the state is held to its burden of proof, we are all at risk and that the system can only protect the innocent if, as a consequence of its design, some guilty people go free. Many of these lawyers caught the defense bug after watching To Kill a Mockingbird. With older lawyers like myself, it was Twelve Angry Men. But, of course, this is not a fictional concern. Some 190 people have escaped execution because of the efforts of the Innocent Project and other similar organizations. These figures don’t include many more people released from prison after serving most of their life behind bars for crimes they did not commit.
3. Others believe that defense counsel play an important role in maintaining our democracy. This sentiment applies to all lawyers in our nation. There are those who say that we have too many lawyers in the United States and hold them responsible for our uniquely litigious society. But our scheme of government was the work of lawyers and it is no coincidence that we are the oldest democratic republic in the modern world. These criminal lawyers were inspired by John Adams’s representation of the British soldiers tried for murder for the Boston Massacre. These lawyers are committed to the principle that we are a nation of laws and not people.
But this ethos is broader than the representation of just one person. It reflects the understanding that the fight to make the criminal justice system more just is primarily the role of criminal defense attorneys.
Consider these examples:
The Federal Sentencing Act, which created the Federal Sentencing Commission, was enacted in my second year as an Assistant United States Attorney in the Southern District of Florida (the real “Southern District”) in 1984. Five years later, the Sentencing Guidelines were held to be constitutional in Mistretta v. United States, 488 U.S. 361 (1989). For 21 years, those of us who battled in the trenches believed that the guidelines would be with us forever. But some lawyers did not give up the fight and the result was United States v. Booker, 543 U.S. 220 (2005). Once again our practice was turned upside down. We still have to contend with the Sentencing Guidelines, but now a judge’s discretion is almost without limit.
Thus, during the span of almost 21 years (from 1984 to 2005), judges went from having the absolute discretion to sentence individuals from probation to life in prison, to being absolutely bound by a rule book that almost completely circumscribed what kinds of sentence a judge could impose, to the present, when judges are required to consider the rule book but can then disregard it if they feel it is necessary.
During this same span of time, human beings were subjected to the capriciousness of a system that often made little sense and was continuously ratcheted up by our representatives in Congress who were engaged in a game of political one-upmanship to demonstrate who was the toughest on crime. Coupled with mandatory minimum sentences, and occasional meddling by Congress, the Guidelines were part of a mechanism that put a generation of Black and Hispanic men in prison, undermined the institution of marriage, and left (ten, hundreds of?) thousands of children to grow up in a one-parent household.
But throughout, lawyers in the trenches fought to expand the range of departures to allow judges to take into consideration factors that were important to assessing a defendant’s true culpability.
Another example is the work of Craig Barnard (may he rest in peace), who was the Chief of the Capital Appeals Division of the Public Defender’s Office in West Palm Beach, Florida, when I began my career as an Assistant Public Defender in 1979. At that time, the overwhelming majority of people in the United States were in favor of the death penalty and death row was once again filling with persons facing execution. Craig knew that we could not overturn the sentences for almost all of the people we were defending; but he and a small number of lawyers around the country expected that the pendulum would swing back someday. Their strategy was to keep people alive until that happened. And it worked. Today only a small number of people are executed each year and some states have abandoned the death penalty altogether. This has saved thousands of lives, and hundreds of people who would have been executed 40 years ago are now free from death row and prison because there was sufficient time to demonstrate that they were wrongly convicted in the first place. It took a great deal of creative thought and energy by many people, lawyers and lay alike, to achieve this. Thus, while the criminal justice system places most of the power in the hands of prosecutors and effectively coerces defendants into giving up their constitutional rights, creative lawyering can allow defense counsel to win, even when they lose.
Criminal defense counsel must go into the trenches every day committed to both getting justice for their clients and making the criminal justice system more just for everyone. This ethos is important because it gives greater meaning, greater motivation, even greater comfort for lawyers facing burnout from seeing their efforts fail day after day, client after client.
The fact is defense counsel laboring before the federal courts are called upon to be advocates in a system that is stacked against their clients. Ninety-nine percent of defendants plead guilty and the most counsel can do for them is mitigate the damage. Even when a client is brave enough to take on the United States and go to trial, 70 percent or more (depending on the year) of defendants are convicted by a jury. All too often, these experiences convince defense counsel that the law is an impenetrable barrier, and they succumb to the pressure of playing on the government’s court and by the government’s rules.
But if lawyers are to fulfill their primary responsibility, which is to provide defendants with the best representation they are capable of (a standard that greatly exceeds what the courts say is “effective assistance”), they must find ways to resist this. Lawyers must find creative ways to change the dynamic.
Part of that requires a paradigm shift in how lawyers approach their work. Today, most criminal defense attorneys are not trial lawyers, at least not very often. Because 99 percent of all defendants in federal court plead guilty, we have become plea bargaining and sentencing lawyers. But that does not mean that the trial arts are dead. It’s just that once we view plea bargaining as the beginning of sentencing and sentencing as an arena for presenting evidence in support of our guideline arguments—and of course in support of our argument for a downward variance—we begin to have a far greater impact upon our client’s future.
In my book, Who Says You Can’t: Strategy and Tactics for Becoming a More Creative Criminal Defense Lawyer, published by the NACDL in March 2023, I devote a number of chapters to tactics lawyers should employ in negotiating pleas and at sentencing, but are not. My advice may be useful or not depending upon the case, but regardless, we must eschew the tried and true. The ABA, the FBA, and the NACDL have failed to include in their educational programs multi-day seminars devoted exclusively to negotiations tactics and alternatives to pleas and mitigation at sentencing (variance practice). Given the number of defendants that plead and the even greater number that face sentencing, lawyers should be learning techniques of negotiations; learning from experts in the business community what works to persuade others to compromise their positions. With more and more judges granting variances, we need to hear from members of the death penalty bar who have become experts in convincing juries to spare peoples’ lives who have committed the most heinous crimes.
This year, the ABA CJS Plea Bargaining Task Force, made up of lawyers, including prosecutors and defense counsel, judges, academics, and representatives from a broad spectrum of advocacy groups, issued a report that described 14 principles that, if enacted into law, would create a far more fair and balanced system of plea bargaining. But it is unlikely that all 14 principles will be adopted by Congress or the Supreme Court, and it will take years of political advocacy before those that are adopted are put into effect. How can defense counsel change that dynamic, right now, today, and not wait till the future catches up?
First. Adopt a mindset that a plea is not the inevitable consequence of not being able to go to trial. Few lawyers are aware that on December 16, 2022, Attorney General Merrick Garland issued a memo stating in part, “Every district should develop an appropriate pretrial diversion policy.” PTD was utilized often in the 1990s to eliminate the need to prosecute low-level offenders, but there is no reason why it cannot apply in more serious circumstances, particularly where it is in the interests of victims and other people, such as employees, to keep the accused out of prison and working to atone and make amends and provide restitution to victims.
[Note: the Justice Manual now includes two sections that address pretrial diversion programs to be offered by all 94, USAO offices: 9-22.010 and 9-22.100. The nomenclature “pretrial diversion” however is a misnomer because these sections describe a program that also applies presentencing which means that defense counsel can use this opportunity to have the defendant demonstrate their post indictment rehabilitation and seek far greater variances]
But there are US Attorney’s Offices that are engaged in a rearguard action to thwart this policy and endeavoring to enact programs that few people will qualify for.
If you have a good case for PTD, ask for, and if necessary demand, a copy of the policy. And if you are refused and the prosecutor rejects PTD for your client, go up the chain in the USAO. If that is unsuccessful, take your argument to Main Justice. Coordinate with other members of the defense bar and the FPD to do the same.
Second, refuse to negotiate until you have reviewed all the discovery and have been provided with all Brady. Although the Supreme Court has held that the government does not have to provide impeaching evidence prior to the entry of a plea (United States v. Ruiz, 536 U.S. 622, 633 (2002)) what this means is that prosecutors can hide exculpatory evidence as well, because once the defendant pleads, it is virtually impossible to discover if the government has failed to disclose what it was legally obligated to disclose.
If the prosecutor or the court imposes a deadline that requires you to plead before you have had an opportunity to review all the discovery, file a notice with the court that says you cannot render effective assistance of counsel under the deadlines that have been imposed. If the court refuses to intervene with the prosecutor or the court refuses to extend its deadline, file a petition for supervisory mandamus with the circuit court. Email me if you don’t know how to do that: firstname.lastname@example.org.
Your argument is that Ruiz is no longer good law after the amendment to Rule 5, enacted in 2020 by Congress. Due Process Protections Act, Pub. L. N. 116-182, 234 Stat. 894 (Oct. 21, 2020)
Third, adopt the mindset that you are now sentencing trial lawyers, you can employ all the techniques that you use to try a case before a jury at sentencing and others that are not available to you at trial. The rule that hearsay is admissible at sentencing works to your advantage more than the government and allows you to put on facts that undermine sentencing enhancement that can increase a sentence beyond the benefit that a client would receive from an acceptance of responsibility. More importantly, it allows for vigorous variance advocacy. Again, this is a topic for an entire seminar. I address it in Chapter 7 of Who Says, but only scratch the surface of what can be done.
Fourth, once you become sentencing trial lawyers, you will have more occasions to call federal agents (and maybe even the prosecutor) as witnesses. The government will refuse to permit the agent to testify unless you comply with Touhy regulations. These are regulations that require the defense to detail what information they will seek to elicit from an agency employee. Authority for such regulations is based upon a decision by the US Supreme Court in Touhy v. Ragen, 340 U.S. 462, 468 (1951). Touhy was a civil case and did not consider a defendant’s due process rights. Under Wardius v. Oregon, 412 U.S. 470 (1973), due process is violated when a rule imposes discovery obligations only on the defendant. If you want to know why, contact Sheryl Stein in WDC, email@example.com, and Joseph DiRuzzo in Fort Lauderdale, jd@ diruzzolaw.com. [Note: Touhy cries out to be reconsidered by the Supreme Court].
Fifth, adopt the mindset of a member of the Supreme Court bar. Look way beyond the decisions of your circuit. Particularly today, every rule, decision, and principle of constitutional law is subject to change.
Sixth, do not think of yourself as simply a litigator. Actively work to change the law in Congress. Become involved in efforts to enact reform legislation. Thousands of lives have been saved by legislation enacted as a result of lobbying by the ABA, the NACDL, FAMA, and others to reduce mandatory minimums and permit the early release of prisoners who qualify for compassionate release.
Laws that are indefensible cannot be left to stand. More and more states have required that interviews of suspects be recorded. There is no valid reason not to require government agents to do so too. Unless the government can show that there is reason to believe that witnesses’ lives would be placed in danger, the government should be compelled to provide witness statements and a witness list prior to trial. It should be the government’s burden to demonstrate that changing the laws will jeopardize its cases. They have never done so in the past. I suggest that the evidence will prove that few witnesses killed or intimidated were not already known to the defendant.
Fundamentally, if we wait for the system to eliminate the trial penalty, make plea bargaining fair, and enact procedural rules to give defendants the rights that civil litigants enjoy, hundreds of thousands of human beings will suffer. We must not allow that to happen. The status quo simply cannot continue.
Jon May is the founder of Creative Criminal Defense Consultants. He practices federal criminal defense across the United States. He can be reached at firstname.lastname@example.org.