IAC in negotiations

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

(E.D.N.Y. 2005).

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:

Pitcher maintained his innocence and refused any government cooperation agreement that required him to plead guilty. Following a jury trial, Pitcher was convicted of all three counts charged in the indictment.

In an status conference held prior to sentencing, the district court asked [the defense counsel] why Pitcher had gone to trial instead of pleading guilty. Jacobs explained that his client had lied to him "about significant things" related to his involvement in the conspiracy. He added, "Had I realized the defendant's — the truth of what had actually occurred here before we went to trial, I never would have went to trial." Pitcher also explained to the court why he had not "take[n] a shot at cooperation [with the government]": "I just didn't think that I was guilty. I thought I had a very good chance at winning, because in my eyes, I didn't see me being guilty." In June 1999 the district court appointed [substitute counsel] as Petitioner's attorney. The district court sentenced Pitcher to 121 months' imprisonment.

United States v. Pitcher, No._________, 2009 U.S. App. LEXIS 5103, at *3–4 (2d Cir. Mar. 11, 2009).

The direct appeal:

On direct appeal Pitcher admitted his participation in the charged offenses, but he argued that he would have pursued a cooperation agreement with the government but for the ineffectiveness of his counsel, who convinced him to spurn the government's efforts to sign him up as a cooperator. We [the 2d Circuit] rejected this argument.

United States v. Pitcher, No._________, 2009 U.S. App. LEXIS 5103, at *4 (2d Cir. Mar. 11, 2009).

The district court acknowledged that Pitcher lied to [counsel] about his involvement in the charged offenses, but the court found that this did not absolve [counsel] of his responsibility to persuade Pitcher to accept the government's offer:

United States v. Pitcher, No._________, 2009 U.S. App. LEXIS 5103, at *6 (2d Cir. Mar. 11, 2009).

A bit of law:

"It is well settled [*8] that a defendant's Sixth Amendment right to counsel extends to plea negotiations."

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).

These facts make clear that Jacobs would not have given Pitcher such a "positive prognosis about his chances of winning at trial," Pitcher, 371 F. Supp. 2d at 257, had Pitcher not lied to him about his involvement in the charged offenses. Our holding on direct appeal–that "[a]ny deficiency in counsel's advice on this subject is properly attributable to Pitcher's own dishonesty in dealing with his lawyer"–applies equally to the reiterated ineffective assistance claim made here.

United States v. Pitcher, No._________, 2009 U.S. App. LEXIS 5103, at *12 (2d Cir. Mar. 11, 2009)(emphasis added).

And some pithy dicta:

[W]e are wary of endorsing any precedent that could enable a defendant to benefit from lying to his defense counsel or that might suggest a duty on the part of defense counsel to arm-twist a client who maintains his innocence into pleading guilty. See Purdy v. United States, 208 F.3d 41, 45 (2d Cir. 2000) ("[T]he ultimate decision whether to plead guilty must be made by the defendant. And a lawyer must take care not to coerce a client into either accepting or rejecting a plea offer.").

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.

He further states that his trial defense counsel inappropriately ordered or attempted to coerce the appellant to enter into a pretrial agreement and that the appellant was improperly prevented from replacing his defense counsel.

United States v. Beckham, No._________, 2007 CCA LEXIS 317, at *3 (N-M.C.C.A. Aug. 15, 2007).