Meet Carl

Every now and again some young criminal-defense lawyer on some listserv will suggest that we criminal-defense lawyers should "set everything for trial." If we set everything for trial, the theory goes, either the government becomes much more reasonable in the cases it charges and the offers it makes, or the system crumbles under its own weight.

The underlying theory of cause and effect is correct. But, because our duty is to the client, criminal-defense lawyers can't engage in such collective action. We convey the government's offers to the client, and he decides, with our advice, whether to take the offer. When the client decides that the cost-benefit analysis favors pleading, we can't countermand his decision for the good of the cause.

There is, however, an economics of prosecution. The worse the offers the government makes, the less likely defendants are to plead guilty (even, to some small extent, when an "everybody gets convicted anyway" pathology dominates, as in the federal criminal bar). Even though the defense bar can't draw a line in the sand, administrative policies (like this one, forbidding the abandonment of enhancement paragraphs "without a valid legal reason" [h/t Life at the Harris County Criminal Justice Center]) [update: this is not, according to Jim Leitner, an accurate statement of the new enhancement policy; rather, enhancements must be included at intake, and trial prosecutors must explain in the file why they have abandoned enhancements] that bar line prosecutors from offering more lenient deals will result in fewer pleas and more trials.

That would be just fine for the prosecution if trials were free—nobody has a right to plead guilty, and deciding culpability (and, in Texas, punishment) is what juries are there for.

But trials aren't free. They require prosecutorial and court resources. Increasing the number of defendants that choose trial over plea brings the system closer to crumbling under its own weight. At some point the line prosecutors or the judges will revolt and find some way to return the system to its earlier equilibrium. The defense bar doesn't have to do anything special—just maintain the same standards for agreed resolutions, and be willing to try those cases in which those standards are not met.

Which brings us to Carl. Carl is a 35-year lawyer, a long-timer in the DA's Office. Since I first met him, he headed the Harris County District Attorney's Public Assistance Fraud Division, prosecuting welfare fraud cases.

The typical welfare-fraud defendant in Harris County allegedly failed to report something—income, assets—that would make her ineligible for benefits, or eligible for less money. When the welfare bureaucrats detect someone who seems to be misreporting, they wait till the amount appropriated is over $1,500 so that the person can be charged with a felony rather than a misdemeanor.

Welfare fraud cases are paper cases. There are defenses to be explored, but welfare fraud defendants are usually poor, sometimes working poor, and very rarely well-to-do. They have the money to make bail, but not the resources to explore the defenses. So most of the cases become whales.

In the Whalefare Fraud Division, Carl had a standard offer: the "40-day deal." If you repaid the amount allegedly stolen within 40 days of your first court appearance, Carl would allow you to plead guilty to a less serious offense. Carl tended to come across as rigid, but when he was pressed by a defendant who had counsel willing to work up a case, Carl got more flexible and the deals got better. So Carl didn't often try cases as the chief of the Whalefare Fraud Division.

Now, since May, Carl has had a new gig as the chief of the misdemeanor division of the DA's Office. He supervises all of the line misdemeanor prosecutors, and sets policy for them. Some of his policies make him come across as rigid: no pretrial diversion for non-citizens; "pretrial diversion is a gift"; no Class C special-expense deferreds. If Carl were the prosecutor on the line to try the cases, his time in his last job suggests, he would be more accommodating, but his policies don't give the line prosecutors the same leeway that he would likely exercise in their position.

So: fewer agreed resolutions that can be expunged. Fewer cases resolved. More cases set for trial. More logjam in the County Criminal Courts at Law. Judges unhappier with their docket numbers, and knowing whom to blame. Frazzled prosecutors in the misdemeanor courts. At some point, a revolt against unworkable policies, returning the system to its earlier equilibrium.

What's really going on here? As Murray says,

. . . I don't get this move. He knows Welfare Fraud like the back of his hand from literally decades of doing it. It's a tough job that nobody else particularly wants to do. Why move Carl now?

One theory I've heard is that the administration is setting Carl up for failure and ouster—after 16 months in office Pat Lykos should have known—and her seconds (former CDLs Jim Leitner and Roger Bridgwater) certainly knew—about Carl's tendency toward doctrinal rigor; when that rigor leads to misdemeanor prosecutions going to hell in a handbasket, Carl will be ushered into retirement.

Another theory is that the Gang really can't, as Murray Newman has been saying from the start of the Lykos administration, "shoot straight."
 

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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9 Responses to Meet Carl

  1. Gunnar Rosenquist says:

    Peter Principle?
    A/K/A “He’s so good at welfare fraud that he needs to be promoted into more and more general work until he’s not good at his job anymore.”

  2. Jackie Carpenter says:

    I concur: As attorneys, we represent the client. I have a rule about my responsibility in criminal defense; it is to basically teach my client the law, as it relates to them, so that he/she make their own decision about what is best for him/her and what he/she can live with for the rest of their lives. They have been making decisions without me their entire lives, and they can do so now as well. As long as they make an informed decision, I’m okay with whatever the decision. Whether I embrace new policies or not is of no consequence.

    On the other hand, there are some policies that lead clients to decide they don’t have much to risk by going to trial. To that end, I can see how trials increase.

  3. Whatever happened to the maxim: ‘Run your own trial’?

    I always remember being told this – as a young solicitor – by my firm’s Senior Partner -when his Junior Partner had muscled in on an ongoing trial – attempting to second-guess my conduct of the defence and telling me – against my better judgement – what strategic decisions had to be taken. Of course, he he could only ever have a superficial knowledge of the case. He couldn’t tell how good/lousy certain witnesses had been. He just had no conception of the trial dynamic. The Senior Partner gave me permission to tell him where to get to – albeit for the duration of that trial only.

    I despair of senior prosecutors – stuck upstairs – far too good to be real court advocates – micro-managing those in the trenches.

    But equally, line prosecutors should remember that they are civil servants. They have protections that those in the private sector can only fantasise about it. It’s not as if they can be sacked. They can disappear on sick leave – citing workplace bullying – if their bosses get shirty.

    It’s amazing that any front-line prosecutor of spirit would put up with such fettering of their discretion. Then again, that’s probably why they’re ‘only’ front-line prosecutors.

    But is there really an invisible hand that restores the (criminal justice) market to some semblance of equilibrium? Maybe this only happens if judges start dragging senior prosecutors into their courts and explaining why that precious commodity of judicial time has been needlessly wasted.

  4. Ric Moore says:

    OTOH, which I know from personal experience, when you’re scared witless at the prospect of going to prison, it takes a deft attorney to handle that reasonable fear to the point that his client can think straight at all. .It’s like which side will they shoot me on, the right side or the left side of my head? Which is better? It’s scary.

    But, if ALL the mitigating elements are presented “at bar” and my attorney faces a prosecutor like Carl, then going for a full blown court would be for the best, as long as the Judge plays fair as well and sticks to the guidelines or better. I’m sure you guys pull your hair out when it seems “justice” gets trampled on. It is an imperfect system.

  5. Ernie Menard says:

    Well, would you please explain how prosecutors and judges could act to return the ratio of pleas to trials to some state of equilibrium that they are are comfortable with? I presume that the ‘state of equilibrium’ is a state wherein the work related stress of actually having to work is minimal. What kind of revolt are you thinking they might undertake? Flaming brands and pitchforks? Or a temporary suspension of a suspects’ right to plead not guilty and demand a jury trial? Or perhaps do you mean that these people, prosecutors and judges, undertake to begin meting out maximum sentences and fines to let it be known that defendants taking of the plea deal is desired by the sysytem?

    As concerns the cost/benefit analysis you refer to, I believe, perhaps incorrectly, that you’d prefer that we readers limit our understanding in this context of this cost/benefit analysis to the plea offer to a reduced charge versus a trial for the ostensibly appropriate charge. Perhaps with wealthier, paying clients this limitation of the meaning of cost/benefit analysis for the purposes of your post would hold true. However, you do mention the working poor. For these people -whom I am presuming innocent despite the ‘whale’ characterization – I believe that the cost benefit analysis actually comes down to choosing whether they are willing to mortgage their future to pay for a thorough defense or do some short amount of time in jail and pay a fine.

  6. But why would they set someone up like that?

  7. Larry Standley says:

    Keeping in mind that the title of this Blog is Defending the People; And, speaking here only PERSONALLY as s former prosecutor who worked as a colleague with Carl for 14 years; And aside from any speculative pontificating about future this or that at the H.C.D.A. Office I’ll simply and clearly say this: Carl is first and foremost a good father and husband first – then an excellent prosecutor. He is honest and will keep his word – even when what you hear him say is not what one would like to hear. You know where Carl stands and he doesn’t play games. He’s not a flashy prosecutor – but he sure as hell (when I knew him) could surely and methodically hammer each nail in the numerous capital Murder Trials he tried that were NOT Whales. On pure speculation I would bet his reversal rate was low or lower than others similarly situated. Defense attorneys knew back then that the chance of a reversal on Carl violating Brady – or getting too loose with comments on the law or misstating the facts on final were slim to none.

    Carl was the Chief of a certain Felony Court where it was unpleasant for either side to go to trial based on a certain personality of someone in the Courtroom. The tension was so thick one could cut it with a knife. I remember being a floating prosecutor in S.Crimes and when I walked into that court – everyone was smoking including Carl, The Judge, lawyers, and I’ll bet my eye teeth it’s where Kirk O. began his habit. It was a tough place to be posted but Carl was and is a good soldier. Regardless of what the outcome of his tenure in misdemeanor is – one thing can never be challenged about Carl – his integrity.

  8. Larry Standley says:

    I agree. After posting I realized the focus – for me – was simply the point about Whale-fare Fraud. So many people who practice law now weren’t even born when Carl was trying very difficult Capital Murder cases and paying his dues in the “smokey & gritty” trenches of the Fire-station Annex Courthouse. No Whales. Not just going after the “working poor”. That’s it.

    You, Murray & Kennedy (speaking only personally) do appear to go out of your way to “keep the bar high” in the Blogosphere.

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