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Colorado Criminal Law Series – Communication With Your Lawyer Is Essential – Plea Bargaining – Because the vast majority of Colorado criminal cases result in a plea agreement of some kind – communication between a defendant and his or her lawyer takes on monumental importance. Unfortunately very little research and training occurs in the formal training of criminal trial lawyers.
By most estimates – 95 per cent of criminal cases will never go to trial. What this means is that the concept of whether a plea bargain is in the defendant/client’s best interests means cutting through the “noise” that can sometimes distract good decision making in the context of the lawyer client relationship.
Whether it is doctors or lawyers – the ability to effectively communicate with their patient or client is as critical as the ability to diagnose an illness or win a trial. This article addresses the nature of lawyer-client communications – the obstructions to effective communications – and some possible ways to penetrate those obstructions for the benefit of all involved.
This article explores a “medical approach” to client communication as a method for promoting more effective communication and as a result – more effective assistance of counsel.
Understanding the “art” of plea bargaining is beyond the scope of this article. However, communicating the results of that plea bargaining to a client – understanding the critical nature of those communications – is explored. This is done using a loose analogy to the doctor-patient relationship for communication which provides a model for “penetrating” what can often be a difficult and painful journey between the criminal defense lawyer and his or her client in the most serious criminal cases.
Recent United States Supreme Court decisions have identified at least 5 areas of potential “ineffectiveness of counsel” which can occur during the plea bargaining process that can impact defendants in criminal cases. These are:
1) bad advice on the law concerning sentencing;
2) bad advice on the law regarding trial;
3) failure to communicate plea negotiations;
4) bad advice arising from incompetent investigation; and
5) bad advice from prosecutors and judges.
Colorado law has recognized the importance of the decision to plea bargain or to take a case to trial:
“A defendant’s decision whether to plead guilty or proceed to trial ‘is ordinarily the most important single decision in any criminal case…”
Colorado Lawyer Greg Greer draws a close parallel to the mental state of people under the stress of a serious medical illness and those accused of serious crimes. Both need a clear path of communication from their professionals to comprehend the decision or decisions they must make. The need to trust their professional is of paramount importance in this context – but because of the immense impact of these decisions – barriers often appear to that path of communication.
For medical patients – disease processes can mean a devastating impact on their lives. The challenges of surgery, hospitalization or even possible death contribute to the difficulties in understanding information received from their physicians. By comparison for defendants charged with serious crimes the impact on their lives may mean the very real loss of their freedom and the possible destruction of everything they hold dear – the loss of family, employment, home and friends.
Lawyers and doctors with busy practices may not take the necessary time to truly listen to their clients. For lawyers, getting to the “point” means taking the shortest path to the end result. The medical model of communication would lengthen the time for communications to include what has been called the “spin out” phase – that is, letting the client talk about what is bothering them until they reach the point where they feel that they have had a full opportunity to say what has been on their mind..
The questions – “what are you feeling – thinking – worried about” – open up avenues of awareness in the client that may assist him or her in understanding the impact of the case on their lives.. sometimes for the very first time.
Getting past the “trauma” of the criminal charges themselves is the first step in this process. Shame, embarrassment, anger, (irrational or rational), fear, confusion, frustration – are all emotions that flood the client at the initial stages of a serious criminal case. Opening up the client to the reality of their situation takes a great deal of time in the most serious cases but this process cannot be shorter than the time the client needs to finally “get there.” It is during this time frame that trust between the client and the lawyer is built.
The medical model of communication stresses the need for complete honesty between professional and client. But honesty comes at a price. Sometimes the brutal nature of the client’s predicament erects mental barriers to truly “hearing” the information that is being conveyed to them. The questions – is this client “ready” to “receive” the information about potential plea agreements now? Are they finally in a place where the reality of the plea bargaining process can take hold in them? Or is it too early for them to receive this information?
If the client is not ready for the plea bargaining process – they may make “bad” decisions based on emotions and not facts, evidence, and common sense. The advice of the criminal defense lawyer as to a particular course of action – take a plea – or go to trial means – as in the medical model – understanding the best course of action in every detail and in every respect.
The criminal defense lawyer has to make the decision of how much of the evidence to share with their client. My practice has always been to share the police reports with the client so they have a thorough understanding of the strengths – or weaknesses of the government’s case. But this act – giving them the evidence – can – and often does – have a traumatic impact on the client’s state of mind. Where various forms of denial made them comfortable in the past when they “read the evidence” (the case against them – in writing) – changes happen that can lead to anger, confusion, and irrationality sometimes ending in turning that anger on the messenger – the criminal defense lawyer.
Once again – the lawyer’s job is to make certain the client is not only educated as to the evidence – but understands ALL of their options vis a vis their specific case as well as the procedures of the criminal justice system. Getting to the RATIONAL decision is the goal of attorney client communication. Lawyer Greer – calls this “debiasing.” meaning to “cut through the clients’ and attorneys’ often unconscious biases that interfere with the rational assessment of costs and benefits essential to evaluating a plea offer.”
To understand what you can’t understand – means understanding the “cognitive biases” that throw roadblocks in the path of the comprehension of facts.
These barriers take the form of:
Self-serving biases – ” I am not a criminal – this is not me – of course the jury will see that and acquit me”
Denial mechanisms – ” This did not happen the way the witnesses say it did – they are all wrong – this can’t be happening to me – this has to just go away.”
Discounting future costs, – ” If I have to do one day in jail – I might as well do life!”
Personality differences regarding risk taking/loss aversion, – ” What the hell – let’s go to trial – the jury will see that I acted in self defense.”
Anchoring, – “Well that’s just great – if that is their first offer – the hell with them – let’s stop plea bargaining,” and
Framing – . ( The Lawyer )- “We have multiple options here – let’s review the evidence – discuss the possibilities of trial and let’s make a calm and deliberate – unemotional – decision.”
The criminal defense lawyer must first look at “debiasing” their own state of mind before they can look objectively at their client’s behavioral “barriers to understanding.” Once this is performed (and it is difficult) the lawyer turns to the client to understand their barriers to understanding the plea bargaining process.
It is clear that the denial mechanisms that all of use are well known and somewhat obvious. Those accused of crimes have the same tendencies of all of us – that is to be overly optimistic and overconfident in predicting what a jury or judge might do in their case.
The role of the experienced lawyer is to “ground” the client in the case, to bring them back to the realties of their situations and like doctors, to choose among the “treatment options” that are presented to them and to carefully explain the limited nature of those options.
From Greg Greer’s Article:
The first aspect of the denial mechanism is simple self-protection. When someone is accused of a crime, admission of that violation usually results in something bad happening. Denial is a natural response.
Certain crimes involve a much higher degree of denial because of shame and personal feelings of guilt. This seems most prevalent in cases that involve a child as the alleged victim. Establishing trust with clients can ameliorate both self-serving bias and denial mechanisms.
The irrational “bravado” of rejecting a sound plea bargain offer in favor of “no holes barred – to hell with the DA” approach – is something criminal defense lawyers confront every day. The decision to say go to hell may be in the best traditions of John Wayne – and in the short term at least -is comforting to the client – but that comforting feeling in the long term, sitting in a jail or prison cell for years on end – will quickly disappear.
Here’s where the experienced criminal defense lawyer has the most difficult of tasks. It is very easy to play into the client’s anger and outrage over criminal charges. As a lawyer – it is actually easier to just take the case to the jury than to work hard to persuade the client that the final negotiated offer is in their best interest.
Why is that so? The criminal defense trial lawyer actually benefits financially from the client’s decision to take a case to trial. It is tempting – especially in light of the anticipated “fight” with the client to try to dispel the client’s natural notions of bravado and courage in the face of the case against them – to run with those emotions and take the case to trial.
On the other hand – driving home the reality of what juries most often really do at the end of criminal trials or driving home an understanding that if there is a verdict of guilty then a judge has the authority to sentence with an unfettered and “open hand” is the much harder task.
However the ethical responsibilities of criminal defense lawyers should force them to do the right thing and to make certain the client understands every detail and every option involved in their case.
The fight against impulsive decisions – that is – decisions not based on the evidence, life experience and common sense – frames the problem. Research clearly shows that the more a person gives in to impulsive decisions the greater the costs later in time. While we all take risks, studies also show that the younger we are – and this is the population most likely to find themselves in criminal court – the greater the tolerance to risk.
The power of lawyers in communicating with their clients cannot be understated. The vulnerability and natural confusion of the person charged with serious crimes makes that person nearly completely dependent on the lawyer’s experienced advice. The lawyer’s goal then, in this context, is to explain the case in ways the client can comprehend.
Here is an important idea from an excellent Harvard Law Review Article – Plea Bargaining Outside the Shadow of Trial – addressing this critical issue:
Self-interest afflicts not only lawyers, in the form of agency costs and incentives, but also their clients, by unconsciously biasing their decisions in self-serving ways. For example, defendants try to preserve their self-images and reputations through denial. These denials are sometimes for public consumption, but they often involve distorted memories and interpretations of events.
Defendants in denial may be unwilling or unable to acknowledge the force of the evidence against them. As a result, they may reject fair plea bargains and proceed to preordained convictions at trial. Prosecutors and defense counsel should respond by firmly challenging denials, which is a “very effective” way to overcome them.
Defense counsel can forcefully simulate the prosecutor’s likely opening statement, for example. Prosecutors can present the evidence that they would put on at trial at a reverse proffer. Once defendants come to view their cases through others’ eyes, they can better strike bargains in the shadow of expected trial outcomes. When debiasing, however, lawyers must be careful not to abuse the deference that clients accord to them. Lawyers should illuminate clients’ interests and irrationalities, but ultimately they must not override clients’ choices.
In the final analysis – helping a client to understand the risks of trial means defeating the natural defense mechanisms that exist as a result of a client’s understandably distorted view of the criminal justice system. Certain ‘unconscious factors” combine with either minimizing the State’s case or maximizing the client’s view of the persuasiveness of the defense case, to result in wrong thinking. The balance to be struck under these confusing circumstances requires the lawyer to cut through the distortions.
These distortions often occur in Colorado Domestic Violence cases. In these cases, a client may rely on the belief that the alleged victim’s promises that she will refuse to testify or refuse to show for trial… or the belief that if the alleged victim does appear she will lie under oath out of love for the defendant to make certain that the defendant is acquitted are many times distortions of reality.
While this situation sometimes occurs – it is poses, in serious cases at least, of the greatest of risks to the client. Many accused in Colorado domestic violence cases have no idea the pressure the prosecutor can bring to bear on the victim of a crime or witness to a crime. Many defendants learn too late – at trial – that the alleged victim testifies because THEY make the rational decision that – rather than be charged themselves with contempt or even perjury – it is far easier to take the stand and testify at trial.
Plea bargaining ‘in the shadows of trial” means forcing clients to make decisions that pierce psychological biases and “distorted judgments.” In the final analysis – it is the criminal defense lawyer’s job to bridge the gap between the charge – the final plea bargaining offer – and the decision to go to trial – in a cohesive, logical and common sense based decision and nothing more.
*Attribution is given to Colorado lawyer Greg Greer for his pioneering work in the “medical model” of criminal defendant lawyer – client communication techniques. Here is a link to his profile.
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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at firstname.lastname@example.org – A Denver Colorado Sex Crimes Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277.
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