Jeffrey D. Stein is a public defender in Washington, D.C.
Your client is desperate, stripped of freedom and isolated from family. Such circumstances make those accused of crimes more likely to claim responsibility, even for crimes they did not commit. A 2016 paper analyzing more than 420,000 cases determined that those who gained pretrial release were 15.6 percentage points less likely to be found guilty. Not surprisingly, prosecutors commonly condition plea offers on postponing hearings where defendants may challenge their arrests and request release.
In what little time exists before the plea expires, you dispatch your overworked investigator to identify, find and interview witnesses. In federal and in many local courts, the prosecution is not obligated to reveal its witnesses before trial. You and your investigator do your best to assess whether the case rests on unreliable eyewitnesses, faulty assumptions or witnesses with reasons to fabricate an account, which you cannot fully explore because — remember — the prosecution has not even disclosed who they are.
Why not ask your client for leads? That might work if the person were guilty. Innocent clients are generally the least helpful, because they often cannot tell you what they don’t know.
You lay out options for your client. You could go to trial, but that might mean waiting in jail for months, if not years, before a jury hears the case.
The idealist in you — the one who enrolled in law school to “change the system” and to fight for justice on behalf of those who need it most — hopes your client will proclaim a decision to go to trial. But a wary voice in the back of your head reminds you of the risk and life-altering consequences of losing.
You think back to a man who once visited your office for help getting the record of his sole conviction sealed. Before the conviction, he had a job, a girlfriend and a newborn daughter. Then he lost a drug case in which a pistol was found nearby. At sentencing, the judge acknowledged the inappropriateness of the five-year mandatory minimum and even asked the prosecution to consider dismissing the charge that carried the mandatory time. It didn’t. When he eventually got out, you couldn’t even help him seal his record so he could move forward with his life because, in your jurisdiction, felonies can never be sealed.