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Monday, November 28, 2011
By Michael Nichols
We as Lawyers Have a Duty to Stand By You and That is What we do at The Nichols Law Firm
Our theme at The Nichols Law Firm, PLLC is “committed to results.” In many situations the result is far from perfect but it is the best that you can achieve and only because we agreed jointly on a strategy and a set of goals and we executed that strategy through pretrial motions and/or other legal methods.
An example of how this played out was in a recent case in which a client, who I defended in a capital offense case, was offered an outstanding plea offer. The plea offer itself was not important but what is important is that I was exceedingly happy with the work that I did to posture the case in such a way that we were offered the plea. The day that the client and I discussed the scenarios in my office, the risk, the bad outcomes and the likelihood of a perfect outcome, the client accepted the plea offer without hesitation.
I then stopped preparing for trial on a capital offense case. The day the client confirmed that he would take the plea was a Thursday. I had blocked off the weekend to finish my preparations. Sure, I prepared enough already to try the case without another minute of organization but the weekend before trial is the last opportunity to carefully organize and think through the details of the case. The client agreed to plead rather than go to trial. Therefore I used the weekend for other things.
Monday morning I left the house, having planned to spend the entire afternoon in ‘catch up’ mode since I had no trial and I could sit down and really get organized after the plea hearing. I got to court a few minutes before 8:30 am. As I walked up to the courthouse door a feeling came over me: “the client is not going to be happy and there will be some drama today.”
The client was not there. I was a little surprised because he was usually early. Eventually the other players started trickling in to the courtroom: the prosecutor, the alleged victim, the co-defendant, his lawyer. I asked the judge’s staff to call the local jails. No client. The prosecutor said, kindly, “we will seek a bench warrant but if you can track him down in a couple of days the offer remains on the table.’
Finally, the client arrives: sullen, pensive, stand-offish. He now did not want to take the incredible plea agreement that was negotiated for him! He did not want to go to prison even though it would be for a significantly shorter time period than what was staring at him if he were convicted at trial in state court or, worse yet, prosecuted by the federal government. A moment of panic sent adrenaline through my veins. Then, in the next instant, the realization hit me that it may just be cold feet on the part of the client.
We talked for several minutes. I should say I listened. I wanted to know what it was that caused him to do a 180 between Thursday and Monday. Was it someone in his ear or just a psychological issue? Was it the fear of prison? Was it that he thought the deal could get better if he played poker a little longer? I have to confess that I will never learn to truly understand people or what drives their decision making.
The client vacillated about 4 times between accepting the plea offer or rejecting it and telling the judge to bring the jury upstairs from the main lobby where they were assembled for orientation. The client put me and himself in a terrible position. Yet, one thing I truly believe: the right to a jury trial is one of the most important constitutional rights in a free society and it should be waived only after the most serious and sober consideration that leads one to a moral certainty that a plea bargain is the right choice among several bad choices made and to be made by him. If he chose to run the risk of the likely outcome of an eventual conviction because he simply could not plead guilty: that is his choice and his choice alone to make. It was not my choice. It was not my life. I had no choice but to stand by him. That was the oath I swore on May 11, 1999 and the oath which guided my actions.
Despite my options to panic, yell at him, yell at the prosecutor, beg the judge for more time I had my oath to guide me. My oath told me to remain calm. My oath told me that if the judge says “bring in the jurors” and the prosecutor proceeds - I am ready. I have done this before. Perhaps I had not the benefit of a weekend of final organization and tweaking but I knew where the landmines in their case and in ours mostly lay, I knew what I would argue and I knew that all I could do was my best.
The judge was patient. She did not browbeat this gentleman into a plea. She let him have 2 breaks to talk with me. She cautioned him about his trial rights. After the second lengthy conversation on the record involving the judge, the client and I the judge said “what do you want – do you want a jury trial or do you want to plead?” The client without hesitation said “I want a jury trial.”
On this day, the prosecutor would dismiss without prejudice – meaning he can re-issue the charge. The prosecutor planned to follow through with a referral to the federal prosecutors to prosecute this man for a gun charge under a federal gun grant. The potential downside for the client is much more severe. However, the choice was his; and my job? My job was, without judgment but with objective advice and respect, to stand by him. It was awkward, unexpected and a little embarrassing – but it was what lawyers do.
Mike Nichols is an expert in the defense of those charged with drugged and drunk driving and other complex criminal matters. He is an author and adjunct professor at Thomas M. Cooley Law School. He was recently selected to present at the American Academy of Forensic Science on Michigan’s Rules of Evidence for expert testimony.