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.”