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Over Easy: When To Plead Guilty In A Capital Case

(photo: Marcin Wichary/flickr)

Dzhokhar Tsarnaev is charged in a 30 count federal court indictment with conspiring with his deceased older brother Tamerlan to use a weapon of mass destruction resulting in death, four counts of murder, and various other charges related to the Boston Marathon bombing on April 15, 2013. Two improvised explosive devices (IEDs), each involving a pressure cooker packed with scrap metal, ball bearings and gunpowder obtained from fireworks, were positioned in backpacks near the finish line and detonated by remote control, killing three and injuring 264 people. A police officer on the campus at MIT was ambushed and killed a couple of days later as he was sitting in his patrol vehicle in an apparent effort to steal his gun. A campus security camera shows the two brothers approaching the rear of the vehicle immediately before the shooting. Eric Holder, the Attorney General of the United States announced on January 30, 2014 that the government will seek the death penalty if he is found guilty. The case is scheduled to go to trial on January 5, 2015.

The government appears to have a solid case against Tsarnaev based on his presence at the scene of the bombings with his older brother and alleged coconspirator Tamerlan, his joint participation with Tamerlan in killing the campus cop and carjacking a Mercedes, his presence with his brother at the shootout with police (in which his brother died), his flight from the shooting in the stolen Mercedes and his statement that he wrote on the inside wall in the boat in which he sought refuge after the shootout. From Wikipedia,

 CBS senior correspondent John Miller, who before joining CBS served in the Office of the Director of National Intelligence, later reported Dzhokhar’s handwritten note inside the boat where he lay bleeding stated,  The [Boston] bombings were in retribution for the U.S. crimes in places like Iraq and Afghanistan [and] that the victims of the Boston bombing were collateral damage, in the same way  innocent victims have been collateral damage in U.S. wars around the world.

The question I address today is whether this case can be resolved by a guilty plea saving everyone the time, effort, stress and cost of a lengthy trial as well as bring finality to the criminal case allowing the survivors to experience closure and begin the process of moving forward in their lives.

Three events must happen before this case can be resolved by a guilty plea:

1) the defendant has to be willing to plead guilty and admit that he committed the bombing as alleged;

2) the government has to be willing to drop the death penalty in exchange for the plea; and

3) the judge has to accept the agreement and abide by its terms.

Although there are people, including people who post at MyFDL, who believe the defendant is innocent, one of his attorneys recently wrote in response to the government’s opposition to the defense motion to continue the trial date (h/t to Old Gold),

It was the government that elected to pursue the death penalty in this case. If the government remains unwilling to relent in seeking death and the case must therefore be tried …. [emphasis supplied]

I interpret this statement to mean that the defense has offered to plead guilty in exchange for a life without parole sentence, but the government has rejected the offer because it wants a conviction and death sentence.

The situation led Eternal Vigilance to ask the following question,

Would an ethical lawyer still advise an innocent client to go to trial even when the trial might not be fair and the consequence of losing is death?

This is my answer.

An ethical lawyer would never advise an innocent client to plead guilty in order to avoid a potential death sentence and a competent lawyer would never advise a guilty client to plead guilty to a death penalty offense without an agreement by the prosecution to drop the death penalty.

Now for the explanation.

You have to keep in mind that the lawyer rarely knows for certain whether a client is innocent because clients have been known to lie to their lawyers. I went with the flow because I did not judge my clients.

I rarely confronted a client claiming innocence in a death case, unless the evidence against him was so overwhelming that his claim of innocence was extremely unlikely and there was no chance of success. In that situation, I would advise my client to plead guilty, if the prosecution would drop the death penalty.

Ultimately, it’s the client’s decision to go to trial or not. Even guilty people have a right to go to trial and force the government to overcome the presumption of innocence by proof beyond a reasonable doubt. The lawyer can’t put them on the stand to deny guilt, if they have admitted guilt. That’s unethical and a lawyer who does that can lose his license for doing that.

I used to estimate the probability of success after reviewing all of the evidence and possible strategies to counter it. I would discuss that with the client and let them decide whether to go to trial. I would tell them if there were no realistic chance of winning and discourage them from going to trial, if they could get a better result by pleading guilty. If they couldn’t get a better result by pleading guilty, I told them I was willing to go for it, if they were. Some opted to plead guilty. Others opted to go to trial.

Death is different.

I never counseled an innocent client to plead guilty and never would in any case, including a death penalty case. And this would be true even if I had reason to believe we were dealing with a corrupt prosecutor and cops. If I believed that were the case, I would certainly tell my client and explain why I believed that to be true.

The problem is the criminal justice system is corrupt and no one can reasonably assume otherwise. That’s why I don’t practice law anymore.

Another consideration is a client has to provide a factual basis under oath to support a guilty plea. For example, “On or about (fill in the date) in (fill in the place) I took $50 from (fill in the victim) by threatening him with a knife.” A lawyer cannot ethically advise an innocent client to perjure himself by saying he did something that he did not do.

There is a type of guilty plea, called an Alford plea, in which a defendant concedes that the government has enough evidence to convict him if the case goes to trial, so he is going to plead guilty to avoid a trial and take advantage of the government’s plea offer. I don’t like these pleas, especially in cases where the plea deal requires the defendant to enter and complete a counseling program because the client is likely to be kicked out of the program for being not amenable to treatment because he refused to admit that he committed the offense to which he pled guilty.

Alford pleas (i.e., pleading guilty without admitting guilt) are equivalent to wanting to have your cake and eat it too. They promote avoiding responsibility and the reality is that a guilty plea is a guilty plea is a guilty plea, as far as the record is concerned. There is no real advantage to them.

If indeed, Dzhokhar has agreed to plead guilty and admit that he committed the crimes charged, if the prosecution will drop the death penalty, I think the prosecution should agree, if for no other than the case is likely to end that way in any event. Dzhokhar’s youth and the strong influence of his older whom he idolized is a powerful mitigating factor that I believe would lead most jurors to reject the death penalty.

After all, this is Massachusetts, not Texas or Florida. Massachusetts does not have a death penalty and a majority of its citizens oppose the death penalty.

What do you think should happen?

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Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.