The strategy for convincing the capital client that a plea bargain is the best way to resolve his case begins at, well, the beginning of the case. Capital defense lawyers who leave construction of a plea strategy for the end of the case squander the precious commodity of time—and risk much. The client who has not been consistently schooled that a plea is a good resolution is very likely to balk when presented with a less-than-death plea bargain. While defense counsel can appreciate the value of a life plea, the idea of spending the rest of your life in a very small space will not likely appeal to the client unless counsel has spent a great deal of time putting the client in the proper frame of mind.
The objective of all plea strategies is to reduce the harm eventually suffered by the culpable client. Nowhere is the potential harm to the client greater than in a death penalty trial. In Texas in the past 10 years, prosecutors have obtained convictions in 99 percent of the capital cases tried to death-qualified juries. Death sentences have been imposed on average in more than 80 percent of those cases. These are casino odds, and they heavily favor the house.
The ABA Guidelines obligate us to seek resolutions short of death—and throughout the entire case.1 This means that like any other strategic goal in a capital case, the effort to obtain a life-saving plea merits detailed planning, continual updating, and team discussion.
Sometimes, barriers arise that keep the defense from seeking a plea. A defense lawyer who wants experience can so focus on going to trial that plea efforts are given short shrift. Other times, egos are the barrier. The case is not about you, not about how much you dislike the prosecutor, how much you would like to beat him or her at trial, or how much you need experience to move up on the capital appointment list. The case is about your client and what’s best for him.
Equally important is the defense team’s obligation to convince the client who faces the death penalty to take the proffered plea.2 And where the client rejects the plea and is sentenced to death, Supreme Court jurisprudence informs us that the plea strategy (or the lack of one) will be a focus of post-conviction scrutiny. This is because the Court has expanded the constitutional protection of effective assistance of counsel to include plea bargains.3
In Missouri v. Frye and Lafler v. Cooper, the Supreme Court targeted “ineffective advice” by defense counsel. In Frye,4 defense counsel failed to convey the plea offer. In Cooper, defense counsel incorrectly told the client he could not be convicted at trial.5 In both cases, the court held that where counsel gives mistaken advice about a plea’s effect or fails to effectively convey the plea, the lawyer will be found ineffective if there is a reasonable probability that the plea offer would have been presented to the court, the court would have accepted its terms, and the conviction or sentence under the offer’s terms would have been less severe than under the actual judgment and sentence imposed.6
Frye and Cooper set a standard that will be used to judge the work of capital defense teams in communicating life-saving plea offers. Yet, defense teams need not worry about that judgment so long as they successfully convince clients that a life-saving plea is in the client’s best interests. This article discusses strategies for so doing.
The Plea Strategy’s Elements
Everyone on the team must agree that a plea constitutes a good resolution of the case. If everyone on the team doesn’t believe that, now is the time to find out why. Sometimes, obstacles to this agreement may include: (1) there has not been enough investigation; (2) the team is “too busy” to consider a plea now; (3) the team has concerns that the client will never accept a plea; (4) one or more team members are too focused on going to trial. Discuss the obstacle and determine how to eliminate it.
The plea strategy must include a commitment to do the work that allows the client to understand you’re being truthful when you talk to him about the need to plead. Clients are enormously concerned about lawyers who appear to be selling them out. The client will likely not appreciate counsel talking about a plea too early in the relationship. The first message to the client must be that you are there to save his life.
At the same time, clients must be assured that the team is investigating the case and litigating zealously on their behalf—and the team must carry out these promises, even though 20 nuns observed, and 14 video cameras recorded, the client committing the crime. If the client is going to trust his lawyers enough to take a LWOP plea, then he is going to have to see a willingness to challenge the prosecution’s case at every level. The defense team that wants a plea must build trust by litigating discovery, getting the DNA tested by defense experts, and ensuring that the ballistics are independently analyzed.
Be sure to report the results of your factual investigation to the client. Let him know that no stone will go unturned and the prosecution’s evidence will be challenged at every opportunity. Keep him involved in the case by getting his input on evidence that refutes the state’s case. Where the prosecution’s evidence cannot be refuted, show the client how it will be used against him and how the team will attempt to minimize its impact.
Don’t assume the client understands how evidence will be used. Even the most “frequent flyers” in the criminal justice system have mistaken ideas about how capital trials proceed. Some clients may know how the evidence will be used but cannot bring themselves to admit how powerful the evidence actually is. Remember: Involving the client in the results of the factual investigation goes a long way to helping the client understand that lightning isn’t going to strike at trial and set him free. Crime scene and autopsy photos are a great way of bringing the client (and if necessary, his family or support group) to the realization of how serious the case against him is.
Lawyers who delay the litigation of pretrial motions lose significant opportunities to establish credibility in the client’s eyes. The client needs to know you are willing to work the case. The loss of aggressively litigated motions is useful because it tells the client: (1) his team is working on his behalf, and (2) even zealous advocacy can result in defeat. Our clients often cannot appreciate how stacked the justice system is in capital cases until they watch the system in action.
Where the client is impaired as a result of mental illness or a cognitive deficit, seek appointment of a consulting expert who can help you communicate with the client. Do not hesitate to make the court spend money on this type of consultation. Our clients are complex, and most (if not all) members of the defense team didn’t attend medical school or psychology graduate school. Where the defense team needs assistance to effectively represent the client, counsel should make this need the judge’s problem, not the team’s problem.
After the defense team has concluded that the case should plead, team members should communicate with the client at every meeting that a plea is a good result. Every team member must be on board with this plan. Team members who are not willing to deal with plea issues at every meeting endanger the likelihood of the case settling. There are right ways and wrong ways to discuss a plea with a client, and if any of the lawyers are not sure what to say, the team should brainstorm ways to: (1) initiate the discussion of a plea, (2) discuss the advantages to a plea, and (3) bring the client to the point where he can see that if he wants to live, he has no choice but to plead.
Communication among team members about the plea strategy is as important as communication concerning theories of culpability and sentencing. The team should agree on the “hooks” team members will use in conversation with the client. For example, team members must remind the client that the only choices for a jury are life without parole and death. In a punishment retrial case, you might remind the defendant that “there is no freedom at the end of this case,” and that his only choice is life or death. Death penalty prosecutions in Texas are so stacked against the client that in order to get a life sentence, the defense team must essentially try a case where everything goes just right. Experienced trial lawyers know that it is rare that everything in a trial goes “just right,” and that is one reason why life verdicts are rare. The client must see that if the case is tried, he wins with a life verdict. Why not take a life verdict now and avoid the risk of a death verdict?
Every meeting with the client should yield a memo—even if it’s in the form of an email message—that is sent to every team member so everyone knows the status of plea discussions with the client and new issues raised by the client in opposition to a plea. Keeping everyone updated guards against “team splitting,” which can occur when the client pits one team member against another. Particular personality types (e.g., borderline personalities) will try to split the team even under ideal situations. The team should not provide such a personality type additional opportunities by failing to communicate with each other or by not presenting a united front on the wisdom of the plea.
Learn the differences in how death-sentenced, LWOP, and term-of-years prisoners are held in the system and communicate that to the client. Too often, death row inmates say they would have accepted a plea bargain had someone explained to them the significant differences in how prisoners are held on death row (23-hour-per-day lockdown, no TV, no contact visits ever), and how prisoners are held under a less-than-death sentence. Take the time to explain the differences in housing, visitation, and availability of parole when applicable.
If you are unfamiliar with the differences in custody levels, ask capital habeas lawyers or read the current Classification Plan published by TDCJ. If you can get photographs of the various prison levels, use them to illustrate your discussions. Otherwise, a blank sheet of paper and drawings of cells, pods, and recreation and visitation areas can assist in showing clients (and their families in understanding) just how TDCJ imprisons those on death row and those serving non-death sentences.
It’s not uncommon for clients to disbelieve team members when they describe prison conditions. After all, few among us have served prison sentences. Where the client is having trouble trusting your word, consider adding a former death row inmate to your team. Increased exonerations mean there are now several former death row inmates available to be hired as “client relations specialists.”7 An exoneree can describe what death row is really like, the experience of being set for execution, and why no one wants to serve time on death row.
“Walk Me or Fry Me”
Don’t accept your client’s “walk me or fry me” bravado. This is a product of jailhouse conversations with other prisoners who have no idea what death row is like. The bravado does not last long, and when faced with an execution, most if not all death row prisoners want that life offer back on the table. Make sure you explain how executions are set and carried out, and how quickly the State can set a date for that execution. Thanks to the Antiterrorism and Effective Death Penalty Act,8 a death-sentenced inmate can go from sentencing to execution in as little as six years. Many prisoners think they’ll go out in a “blaze of glory” with news stories on all TV channels. Counter that by asking the client to name the last three people executed in Texas.
And, for that rare client who can name the last three people executed by the State, focus on the quality of the news coverage. Usually, the news stories focus on the heinousness of the crime committed by the condemned, the suffering of the victims, and how much the condemned deserved to die.
Expect resistance from the client. It isn’t human nature to give up, even in the face of the worst odds. Casinos bank on this inclination. Even the Stage IV cancer patient (who has a lot in common with our clients) wants to fight the disease. The prospect of spending the rest of one’s life in a small cell is not an appealing one. The initial response of “I would rather die” is to be expected from most.
However, don’t let the client’s resistance discourage you from pursuing a plea. The image in your head should be water dripping on rock. You’re the water, the client is the rock. Slowly, you’re going to wear him down until that rock looks like the Grand Canyon. The situation may be that the client, on some level, knows the plea should happen, but he is relying on your persistence to wear him down.
The Client in Denial
It is not unusual for a person who has committed a horrible crime to be unable to acknowledge his behavior. Very few of us can imagine performing a heinous act, much less carrying one out. Not only must the client have to come to terms with his behavior, but if there is a plea he also must necessarily acknowledge to others (including his mother) that he is responsible for the death of one or more people. Denial may also be complicated by mental illness, mental retardation, or trauma related to the crime itself.9
Those with mental illness often are in denial as to the symptoms of their mental illness in addition to their involvement in a capital crime. How can we get through to the client who for whatever reason is in denial of his criminal behavior? Counsel can look to suggestions offered by Xavier Amador, Ph.D., in his book I Am Not Sick, I Don’t Need Help! How to Help Someone with Mental Illness Accept Treatment (3d ed. 2010). This highly readable text offers a method of structured communication for the mental illness patient in denial. In truth, though, the methodology can be utilized with anyone who is in denial about any aspect of his life.
Dr. Amador proposes, as a way of effectively communicating with a mentally ill patient who is in denial, that the listener: (1) engage in “reflective listening” to the client’s story, (2) empathize with the patient’s situation, (3) agree on certain mutual goals, and (4) partner to achieve those goals.10 Using this process of structured communication with capital clients can help create or strengthen a sense of trust between the defense team and the client.
Reflective listening in the capital context involves two important steps: (1) the defense team will provide the client with an opportunity to tell his story, and then (2) after listening patiently, the team member will retell the story (warts and all) back to the client, so that the client knows that the team member is listening to him, taking him seriously, and understanding what the client is saying.11 When summarizing the client’s story and delivering it back to him, it is important to include those portions of the story that the team member views to be without merit.12 The team member13 cannot be judgmental at this point because the client’s story represents how he views the crime and his situation. If the team member and the client argue over questionable facts, theories, or defenses, then the barriers to communication and trust go up and agreeing on a plea becomes less likely.14
After the team member has heard the client’s story and repeated it back to him, it is important for the team member to convey a sense of empathy with the client so that he feels understood and respected.15 Even where the team member might disagree vehemently with the client’s view of the facts, a simple “I can understand how you might feel that way” still can be a truthful statement. It also is a good way to begin to convey the team member’s apparent sense of empathy with the client. Empathizing with the client may not be too difficult, as none of us would want to trade places with the client under any circumstances!
At this point, the team member should seek to shift the conversation to the client’s goals, with an eye towards identifying goals that both team member and the client can agree upon. The team member might ask “What do you want your life to be like when this case is over?”16 At this point, the team member will be faced with answers that may be unrealistic, such as, “I’ll be free because I’ll have been found not guilty,” or disheartening, such as, “I want to be on death row.”17 For the client with unrealistic answers, it is important to not judge, but to further explore why the client has that goal and how he sees it being achieved. Ask the unrealistic client who wants to be acquitted, “How do you see yourself being acquitted?” Ask also, “If you were found guilty, what is your goal?” Ask the client who says he sees himself being placed on death row how he sees that happening; ask him how he thinks a death sentence might be avoided. For all clients, be prepared to ask open-ended questions in order to understand how the client believes the goal could be achieved. The team member can likely agree with any positive goals shared by the client. If no positive goals can be agreed upon, the team member can work backwards with the client and agree on what they do not want to be a result of the prosecution. The point is to develop some mutual ground upon which the parties can agree.
The last step is for counsel to “partner” with the client in achieving the goals agreed upon.18 The client can be given agreeable tasks to achieve the goal. It may be as simple as behaving in jail, not talking to the media, taking his prescription medications, a willingness to look at the crime scene photos, a willingness to talk about how the evidence will be presented at trial. The evidence at trial can certainly relate to a mutual goal: that the client be prepared to hear the evidence in the way in which the state will present it should the case go to trial. Another common goal might be that the prosecution should not win. At some point you can remind the client that the prosecution only wins with a death verdict, and a death verdict is only possible if the case goes to trial.
The client’s family and supporters must also understand that a plea is a good resolution. Often, the client feels that the only way to win support from his family and friends is to assert his innocence. It is difficult for the client to acknowledge the horrible facts of the crime and even more difficult to admit to family members that he is responsible. This happens even in cases where guilt is assured because the crime was recorded or the client’s DNA is found at the scene and on the victim.
Often, family and friends don’t know all the details of the client’s involvement in the crime, will rely on the client’s assertions of innocence, and then use that claim of innocence to bolster the client’s decision not to plead. The team must determine how it will respond to family and friends who assert the client’s innocence and who think that the best way to fight that battle is to insist on a trial. Consider seeking the client’s permission to discuss the evidence with family and friends. As with the client who cannot make the difficult decision to plead, offer to take the difficult act of communicating to family and friends how bad the evidence is out of the client’s hands by doing it for him. A surprising number of clients will authorize you to do this because they don’t want to admit their guilt to their friends and family.
Another strategy is to use publicly known evidence (e.g., evidence set out in prosecution filings or police publicity) to show family and friends that the prosecution can prove guilt. The defense team does not have to say that the client is guilty. Instead, team members should show how the prosecution will prove guilt and that the defense lacks credible rebuttal evidence. Crime scene photos and autopsy photos can be very persuasive to family members when the realization hits that the jurors will be seeing this disturbing evidence.
Other times, family and friends will say things such as: “It’s his decision. Whatever he decides is fine with me.” This is a distancing maneuver, and it leads to death. When confronted with this maneuver, you must bring the speaker back to reality by pointing out that the client cannot be “abandoned” to make this decision by himself. If there is any feeling at all for the client, the family and friends must work together to save his life.
Discuss what a punishment trial looks like and give the family member or friend an idea of what he or she will be asked to testify to at that trial. Family members who know they’ll be called on to discuss uncomfortable or shameful moments of family history can be motivated to push the client to plead. They can see this as a “win-win” situation. They don’t have to testify and embarrass the family, and the client gets to live. In their own minds, they can satisfy themselves that they helped to save the life of their loved one.
Point out that if the client is sentenced to death, family and friends will have new obligations to support the client in his life on death row. If a family member has difficulty understanding what will be required with a relative on death row, consider arranging with a capital habeas lawyer for a family member of an executed offender to speak with the client’s family. Explain what visitation procedures are like at death row. Make sure the family members and friends know that they will never touch their loved one again. Make sure they understand how difficult life on death row is for prisoners. Knowledge, though heartbreaking, can empower the client’s family and friends to seek a life-saving resolution for the client.
Give the Prosecution a Reason to Plead
Aggressive pretrial litigation can wear out the prosecution. Prosecutors usually have plenty to do besides working on your case. The more you make a pest of yourself by filing and litigating motions, the more the prosecutor will want to get rid of the pest. Meanwhile, make sure you’re engaging in a thorough mitigation investigation so that you have reasons to give the prosecutor for resolving the case.
When you are assured your client will take a plea, let the prosecutor know that “this case can go away today.” This realization will be in the back of the prosecutor’s mind the whole time you are litigating the case, and as you wear him or her out, the idea of “making it go away” will become more attractive.
Prosecutors like to win, just like defense lawyers do. Be creative in pointing out ways that a plea can be a win for the prosecution. In counties with a poor property tax base, the expense of capital litigation can be a powerful incentive to settle. Mitigation that causes prosecutors to doubt whether they will achieve a finding of future dangerousness or a death sentence also can serve as an incentive. Is the client’s criminal history nil? Do you have evidence of intellectual disability? Was the crime a product of post-partum psychosis? Is your client deeply remorseful? Now is the time to bring this evidence forward as part of plea negotiations.
Similarly, there is nothing wrong with suggesting a sentencing package or a plea allocution strategy that the prosecutor can use to sell the plea to the victim’s survivors or the public at large. For example, in a retrial case that was charged in the days before life-without-parole sentencing, you should consider structuring the plea so that the client never reaches parole.19 Alternatively, perhaps your client would be willing to waive all statements other than “guilty” at the plea hearing. Maybe he would be willing to apologize to the survivors. Perhaps you would agree not to object to the victim impact statements at the plea hearing or to decline comment after the prosecutor’s public announcement of the plea bargain. There is no reason why these issues cannot also be negotiated as part of the plea package.
Anything done right takes hard work, time and patience. Getting the plea is no different. Develop your plea strategy early on. Hasten slowly.
1. See American Bar Association, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Guideline 10.9.1 (The Duty to Seek an Agreed-Upon Disposition) & Commentary (Rev. ed. 2003), reprinted in 31 Hofstra L. Rev. 913 (2003) (“the obligation of counsel to seek an agreed-upon disposition continues throughout all phases of the case”).
2. Id. at Commentary (“In addition to persuading the prosecution to negotiate a resolution to the case, counsel must often persuade the client as well. . . .[A] relationship of trust with the client is essential to accomplishing this. The entire defense team must work from the outset of the case with the client and others close to him to lay the groundwork for acceptance of a reasonable resolution.”)
3. Missouri v. Frye, 2012 U.S. LEXIS 2321 (Mar. 12, 2012); Lafler v. Cooper, 2012 U.S. LEXIS 2322 (Mar. 12, 2012).
4. Frye, 2012 U.S. LEXIS 2321 at *9–*10.
5. Cooper, 2012 U.S. LEXIS 2322 at *9–*10.
6. Frye, 2012 U.S. LEXIS 2321 at *12–*14; Cooper, 2012 U.S. LEXIS 2322 at *14–*15.
7. Yes, TDS does have a motion for the appointment of a client relations specialist that we will be happy to provide to you.
8. Pub.L.No. 104-132, 110 Stat. 1214 (1996). And if Texas successfully meets the “opt in” provisions set out in Chapter 154 of AEDPA, federal habeas review will proceed even more quickly.
9. Violent homicide can lead to the development of Post-Traumatic Stress Disorder in perpetrators. B. Harry & P. J. Resnick, Post-traumatic Stress Disorder in Murderers, 31 J. For. Sci. 609 (1986); Nicola S. Gray, et al., Post-traumatic stress disorder caused in mentally disordered offenders by the committing of a serious violent or sexual offence, 14 J. For. Psychiatry & Psych. 27 (2003). Requiring the perpetrator to describe the crime can intensify PTSD. Hannah Crisford, et al., Offence-related posttraumatic stress disorder (PTSD) symptomatology and guilt in mentally disordered violent and sexual offenders, 19 J. For. Psychiatry & Psych. 86 (2008). It is, therefore, understandable why some clients may not want to acknowledge their behavior. For this type of client, it may be helpful to change focus from what the client remembers to the fact that the State can prove its merits case, and that your own investigation has not produced a way to prevent conviction. Consider also seeking court funding for a professional who can treat the client’s PTSD symptoms, and who would be considered a consulting expert to the team.
10. Xavier Amador, I’m Not Sick, I Don’t Need Help! How to Help Someone With Mental Illness Accept Treatment, 71–72 (3d ed. 2010) (explaining that this four-step approach is based upon motivational enhancement therapy, a research-based technique that “helps those who are in denial accept treatment”).
11. Id. at 80–84.
13. The focus here is on the “team member” and not merely counsel because clients often choose to talk about disposition with others on the team. Therefore, all members of the defense team must understand the plea strategy and be prepared to communicate with the client in a structured way.
14. Id. at 81 (explaining that reiteration of all key facts of a client/patient/loved one’s story is necessary to create a safe environment between the speaker and listener).
15. Id. at 107–9.
16. Id. at 115–6.
17. Clients who say they want to be on death row or executed should raise a red flag for the defense team. Such statements can indicate that the client is severely depressed or incompetent, and it is the defense team’s job to determine if this is the case. If so, counsel must take steps to hire a consulting expert and to consider, after consultation with the expert and the team, whether legal remedies should be pursued.
When faced with a client’s stated desire to be placed on death row, some defense team members may be tempted to conclude that mitigation need not be developed, or that the defense team must facilitate the desire to be sentenced to death. In fact, the ABA Guidelines are clear that the defense team must work to prevent volunteering at all levels of the case. See American Bar Association, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Guideline 10.4 (Relationship with the Client) & Commentary, Guideline 10.11 (The Defense Case Concerning Penalty) & Commentary, and Guideline 10.15.1 & Commentary (The Duties of Post-Conviction Counsel) (Rev. ed. 2003), reprinted in 31 Hofstra L. Rev. 913 (2003). A client who states he wants to be sentenced to death presents a challenge for the defense team to solve rather than a justification for ending life-saving efforts.
18. Id. at 123–7.
19. We have scanned copies of several such plea packages in our files at the Texas Defender Service and would be happy to make them available to you.