United States v. Pitcher, 05-3182r, 2009 U.S. App. LEXIS 5103 (2d Cir. March 11, 2009). In this case appellant claimed IAC. He claimed on direct appeal that he wouldn't have plead not guilty, but for the overly rosy picture of his chances of success painted by his trial defense counsel. He lost. So he took a habeas petition and succeeded in having the district court vacate the findings and sentence based on IAC. Pitcher v. United States, 371 F. Supp. 2d 246
I may have read too much into the case, but there is an underlying theme that defense counsel may have a duty to strong arm an 'obviously guilty' client into a pretrial agreement. There were issues raised in the collateral attack about the procedures under 28 U.S.C.S. § 2255, which aren't relevant for our story. The points for trial defense counsel are the client who lies, giving a proper assessment of the client's chances based on the facts available, and it's improper to arm-twist a client into accepting a pretrial agreement.
A few facts:
United States v. Pitcher, No._________, 2009 U.S. App. LEXIS 5103, at *3–4 (2d Cir. Mar. 11, 2009).
The direct appeal:
United States v. Pitcher, No._________, 2009 U.S. App. LEXIS 5103, at *4 (2d Cir. Mar. 11, 2009).
United States v. Pitcher, No._________, 2009 U.S. App. LEXIS 5103, at *6 (2d Cir. Mar. 11, 2009).
A bit of law:
United States v. Pitcher, No._________, 2009 U.S. App. LEXIS 5103, at *7–8 (2d Cir. Mar. 11, 2009), citing to
Davis v. Greiner, 428 F.3d 81, 87 (2d Cir. 2005).
United States v. Pitcher, No._________, 2009 U.S. App. LEXIS 5103, at *12 (2d Cir. Mar. 11, 2009)(emphasis added).
And some pithy dicta:
United States v. Pitcher, No._________, 2009 U.S. App. LEXIS 5103, at *13 (2d Cir. Mar. 11, 2009).
There is a delicate balance at work here. Just how far can you or should you go to ensure a client takes a pretrial agreement. To start with I think it's the wrong approach to tell any client that you believe them guilty, or innocent, that's not your job and it interferes with the attorney-client relationship. You almost immediately lost the trust of the client. (A regular refrain from prosepective clients is how they were treated by the military defense counsel at their first meeting. It goes like this: how are you, I see you've filled out the forms, great; I've had a chance to review the ROI, you've got real problems and you need a deal; now tell me a little about yourself and about the charges. We can leave the "how to conduct the first meeting with the client" training for another issue.) Let's assume you have done more than read the file, that you've analysed the facts, interviewed some of the witnesses, gotten a detailed non-confrontational explanation from the client — and you are convinced he needs a deal. It's OK to have a healthy degree of cynicism about the client's explanations and protestations of innocence. But your desk-side manner need not convey that. You educate the client in the devil's advocate theory of law. Once you have a thorough understanding of the case — facts and law — and the client accepts that, it's quite easy to explain how even a bad prosecutor wil
l present the case and stand a good chance of conviction, etc. If the client insists he wants to plead guilty anyway, then you have a duty to follow through with him. You ask them about and explain their "tolerance for pain" and their 'tolerance for risk," and then press on with a litigate-to-mitigate case.
I found Beckham, an unpublished opinion, with only a minimal quick search, there may be others.
United States v. Beckham, No._________, 2007 CCA LEXIS 317, at *3 (N-M.C.C.A. Aug. 15, 2007).