"I ain't takin' no plea": The challenges in counseling young people facing serious time

Rutgers Law Review

Volumn 60, Issue 1, 2007, Pages 11-31

  Smith, Abbe ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 45249110053     PISSN: 00360465     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (104)

1. Jones v. Estelle, 722 F.2d 159, 165 (5th Cir. 1983).
2. This is especially true of young people's brains. See generally DANIEL R. WEINBERGER ET AL., NAT'L CAMPAIGN TO PREVENT TEEN PREGNANCY, THE ADOLESCENT BRAIN: A WORK IN PROGRESS (2005);
3. NAT'L INST. OF MENTAL HEALTH, TEENAGE BRAIN: A WORK IN PROGRESS, available at www.nimh.nih.gov/health/publications/teenage-brain-a-work- in-progress.shtml (last visited Dec. 4, 2007) (noting the "dynamic nature" of the teenage brain, and the delayed maturation of cognitive processing).
4. By "young people," I do not mean only juveniles. Distinguishing children from adults based on age alone reflects a "crude judgment[] about psychological development and . . . policy concerns." Elizabeth S. Scott & Thomas Grisso, Developmental Incompetence, Due Process, and Juvenile Justice Policy, 83 N.C. L. REV. 793, 811 (2005); see also Roper v. Simmons, 543 U.S. 551, 574 (2005) ("The qualities that distinguish juveniles from adults do not disappear when an individual turns 18."). When I refer to young people here, I mean adolescents and postadolescents in juvenile proceedings, transfer proceedings, and criminal court, who are still developing neurologically, intellectually, emotionally, and psychosocially. See Scott & Grisso, supra, at 811-17.
5. See generally DAVID BINDER ET AL., LAWYERS AS COUNSELORS: A CLIENT-CENTERED APPROACH (2d ed. 2004) (offering a "client-centered" model for interviewing and counseling).
6. For a thoughtful discussion of myriad forms of client-centered representation, see Katherine R. Kruse, Fortress in the Sand: The Plural Values of Client-Centered Representation, 12 CLINICAL L. REV. 369 (2006).
7. For thoughtful discussions of the unique challenges in counseling juveniles, see Emily Buss, The Role of Lawyers in Promoting Juveniles' Competence as Defendants, in YOUTH ON TRIAL: A DEVELOPMENTAL PERSPECTIVE ON JUVENILE JUSTICE 243, 243 (Thomas Grisso & Robert G. Schwartz eds., 2000) [hereinafter YOUTH ON TRIAL];
8. Laura Cohen & Randi Mandelbaum, Kids Will Be Kids: Creating a Framework for Interviewing and Counseling Adolescent Clients, 79 TEMP. L. REV. 357 (2006);
9. Kristin Henning, Loyalty, Paternalism, and Rights: Client Counseling Theory and the Role of Child's Counsel in Delinquency Cases, 81 NOTRE DAME L. REV. 245 (2005).
10. See Cohen & Mandelbaum, supra note 3, at 360 ("Effective client interviewing and counseling constitute the core of legal representation and serve as the basis for the trust and rapport that are essential to a successful attorney-client relationship.").
11. 1 ANTHONY G. AMSTERDAM, TRIAL MANUAL 5 FOR THE DEFENSE OF CRIMINAL CASES: PROCEEDINGS THROUGH ARRAIGNMENT § 201 (5th ed. 1988).
12. See also Albert W. Alschuler, The Defense Attorney's Role in Plea Bargaining, 84 YALE L.J. 1179, 1308 (1974) ("[T]he choice of plea is not a mere question of tactics; it involves the most basic of the defendant's rights.").
13. See generally Thomas Grisso et al., Juveniles' Competence to Stand Trial: A Comparison of Adolescents' and Adults' Capacities as Trial Defendants, 27 LAW & HUM. BEHAV. 333 (2003) (finding that the developmental immaturity of many juveniles raises competency questions);
14. Thomas Grisso, What We Know About Youth's Capacities as Trial Defendants, in YOUTH ON TRIAL, supra note 3, at 158-59 (reviewing literature on the effects of emotion, mood, and stress on children's cognitive capacities);
15. Terry A. Maroney, Emotional Competence, "Rational Understanding," and the Criminal Defendant, 43 AM. CRIM. L. REV. 1375 (2006) (arguing that emotion plays a key role in decision making). The situation is even more complicated when the young person is intellectually impaired.
16. See Thomas Grisso, Adolescents' Decision Making: A Developmental Perspective on Constitutional Provisions in Delinquency Cases, 32 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 3, 9 (2006) (noting that the IQ of youths in detention is considerably lower than in the general population, and most detained youth meet the criteria for one or more mental disorders in the diagnostic and statistic manual). Although this Essay is not specifically addressed to these impaired youth - some of whom are arguably incompetent - it hopefully has some applicability. Because courts are generally loath to find defendants incompetent based on intellectual impairment or developmental delay, especially when the crime is serious, defenders must determine how to effectively counsel these clients.
17. For the author's account of her representation of one such client, see Abbe Smith, Defending and Despairing: The Agony of Juvenile Defense, 6 NEV. L. J. 1127 (2006) [hereinafter Defending and Despairing].
18. Benny's story is based on several actual cases. Although I have changed his name and some of the facts in order to maintain confidentiality, I acknowledge that there is an element of exploitation in sharing this kind of a story. See generally Nina W. Tarr, Clients' and Students' Stories: Avoiding Exploitation and Complying with the Law to Produce Scholarship with Integrity, 5 CLINICAL L. REV. 271 (1998) (discussing the use of client and student stories in clinical scholarship);
19. Binny Miller, Telling Stories about Cases and Clients: The Ethics of Narrative, 14 GEO. J. LEGAL ETHICS 1, 48-52 (2000) (discussing the use of client stories, and noting that changing names and facts may not protect a client's identity). Still, I believe stories based on real cases and clients are an important part of legal scholarship - something clinical scholars are uniquely positioned to contribute.
20. See Abbe Smith, Defending the Innocent, 32 CONN. L. REV. 485 (2000) (telling the story of an innocent woman who spent decades in prison); Smith, Defending and Despairing, supra note 6;
21. see also Abbe Smith, Telling Stories and Keeping Secrets, 8 UDC/DCSL L. REV. 255, 256 (2005) ("[W]hat makes these client stories, and not lawyer stories?").
22. The other charges included robbery, assault, theft, unauthorized use of a vehicle, and fleeing from a law enforcement officer.
23. See D.C. SENT'G COMM'N, 2006 PRACTICE MANUAL: THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA VOLUNTARY SENTENCING GUIDELINES FOR PLEAS AND VERDICTS ENTERED ON AND AFTER JUNE 14, 2004 app. A-1 (2006).
24. See id.
25. See D.C. CODE § 22-2803(b) (2001). Although he was not subject to the mandatory minimum for having an operable pistol or firearm, he might still be convicted of committing a felony while armed. See id. § 22-4502.
26. Although the sentencing guidelines indicate that Benny was looking at anywhere from ninety to 180 months (seven and a half to fifteen years) for armed carjacking in view of "criminal history score," the guidelines are trumped by the fifteen-year (180 month) mandatory minimum. See id. § 22-2803(b)(2); D.C. SENT'G COMM'N, supra note 9, app. A-1.
27. See D.C. CODE § 22-2803(a).
28. Although the sentencing guidelines indicate that Benny was looking at anywhere from thirty-six to eighty-four months for unarmed carjacking in view of his criminal history score, the guidelines are trumped by the seven year (eighty-four month) mandatory minimum. See id. § 22-2803.
29. See Cohen & Mandelbaum, supra note 3, at 403 ("All clients look to lawyers for advice and guidance. Children are no exception."); see also Henning, supra note 3, at 314 ("Children have limited experience . . . and need and want the assistance and advice of a knowledgeable adult and legal advisor."). Even ardent believers in client-centered counseling - David Binder, Paul Bergman, Susan Price, and Paul Tremblay - say it is okay to give advice sometimes. See BINDER ET AL., supra note 3, at 368-71 (permitting lawyers to give advice under the client-centered model so long as the lawyer truly knows the client's subjective values). Notwithstanding the above support, advice-giving seems to be an increasingly retrograde position, at least among progressive legal ethics scholars. See generally Paul R. Tremblay, Critical Legal Ethics Review of Lawyers' Ethics and the Pursuit of Social Justice: A Critical Reader, 20 GEO. J. LEGAL ETHICS 133 (2007) (reviewing Susan D. Carle's collection of essays on lawyers as "collaborators," "community-based rebels," and "moral activists"). I share some of Tremblay's nostalgia for the "olden days" when "lawyers for poor people . . . went to court and fought hard to win . . . ." Id. at 133.
30. See AMSTERDAM, supra note 5, § 201 (emphasis added): [C]ounsel may and must give the client the benefit of counsel's professional advice on this crucial decision [of whether to plead guilty]; and often counsel can protect the client from disaster only by using a considerable amount of persuasion to convince the client that a plea which the client instinctively disfavors is, in fact, in his or her best interest. This persuasion is most often needed to convince the client that s/he should plead guilty in a case in which a not guilty plea would be destructive. The limits of allowable persuasion are fixed by the lawyer's conscience. See also Abbe Smith, Rosie O'Neill Goes to Law School: The Clinical Education of The Sensitive New Age Public Defender, 28 HARV. C.R.-C.L. L. REV. 1, 37 (1993) [hereinafter Rosie O'Neill Goes to Law School] ("There are times when a . . . caring and zealous advocate[] must lean hard on a client to do the right thing. The clearer the right thing is . . . the stronger the advice."). But see Buss, supra note 3, at 261 ("[A] lawyer should take care in how forcefully she pushes to persuade her [adolescent] client. . . . A lawyer who has gained the respect of her client will have more credibility when she pushes her client to reassess his priorities, but there is only so far that a lawyer can push in that direction without undermining . . . the relationship . . . ."); Kruse, supra note 3, at 372 ("[T]he core values of client-centered representation can sometimes come into conflict in situations of actual practice, posing dilemmas for client-centered lawyers about whether - or how forcefully - to intervene into client decision-making."). Of course, ultimately the decision to plead or not is the client's.
31. See ABA STANDARDS FOR CRIMINAL JUSTICE: PROSECUTION AND DEFENSE FUNCTION 199-200 (1993) (noting that first among the decisions that are to be made by the accused after full consultation with counsel is what plea to enter).
32. This reflects two things: (1) I am a mother, and (2) most of my clients are young enough to be my children. See U.S. DEP'T OF JUST., BUREAU OF JUST. STAT., NCJ 201932, PROFILE OF JAIL INMATES, 2002, at 1 (2004), available at http://www.ojp.usdoj.gov/bjs/abstract/pji02.htm (last visited Dec. 4, 2007) (detailing a Justice Department study that, in 2002, sixty-two percent of jail inmates were under thirty-five, down from sixty-eight percent in 1996).
33. Indeed, juveniles make up a sizeable percentage of jail detainees. See U.S. DEP'T OF JUST., BUREAU OF JUST. STAT., PRISON AND JAIL INMATES AT MIDYEAR 2006 (2007), available at www.ojp.gov/bjs/ glance/jailag.htm (last visited Dec. 4, 2007) (finding that one out of ten jail inmates in 2006 is a male under eighteen).
34. See Cohen & Mandelbaum, supra note 3, at 403; Henning, supra note 3, at 273.
35. See BINDER ET AL., supra note 3. Benny repeatedly articulated two "values": (1) he wanted to beat the case, and (2) he wanted to go home.
36. The fellows did the lion's share of the work. I was a mere supervisor.
37. Amazingly, a former Prettyman fellow - he defended the poor accused in Georgetown's E. Barrett Prettyman Program from 1978-1980 - has come to believe that jail is no big deal for many defendants. See Fred C. Zacharias, The Civil-Criminal Distinction in Professional Responsibility, 7 J. CONTEMP. LEGAL ISSUES 165, 172 n.32 (1996) ("[J]ail alone may not be terrifying to . . . defendants who are used to it and come from a community where incarceration is routine. Likewise, the effect of incarceration on defendants' lives may not be as severe for those who are unemployed and whose community accepts incarceration as relatively routine . . . ."). I couldn't disagree more.
38. See Parham v. J.R., 442 U.S. 584, 602-03 (1979) ("[P]arents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions . . . . Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions.") (emphasis added).
39. Belotti v. Baird, 443 U.S. 622, 634 (1979) (noting the "peculiar vulnerability of children" and "their inability to make critical decisions in an informed, mature manner").
40. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 587 (2001) ("[Children] lack the judgment to make an intelligent decision about whether to smoke.").
41. See generally Roper v. Simmons, 543 U.S. 551 (2005) (finding that adolescents are different from adults in the context of capital punishment); see also Johnson v. Texas, 509 U.S. 350, 367 (1993) ("A lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.").
42. 543 U.S. 551 (2005).
43. Id. at 559.
44. See id. at 568-70. In Roper, the Court specifically cites work by Laurence Steinberg and Elizabeth Scott, well-known researchers on adolescent development and crime, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 AM. PSYCHOLOGIST 1009 (2003),
45. and the late Erik Erikson, perhaps the most influential developmental psychologist of all time, IDENTITY: YOUTH AND CRISIS (1968). See Roper, 543 U.S. at 569-70. The Court also notes that the DSM does not allow anyone under eighteen to be diagnosed with antisocial personality disorder, because the personalities of children and adolescents are still evolving.
46. See AM. PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 645-46 (Michael B. First ed., 4th ed. 1994).
47. See Elizabeth Cauffman & Laurence Steinberg, Researching Adolescents' Judgment and Culpability, in YOUTH ON TRIAL, supra note 3, at 325, 331-33 (summarizing studies on adolescent development, and noting the stressful context in which accused adolescents make decisions); Scott & Grisso, supra note 2, at 813-16 (discussing the spheres of adolescent development and noting that there is little research examining adolescent decision making in stressful contexts that require experience and knowledge).
48. See Steinberg & Scott, supra note 28, at 1014-15; see also Laurence Steinberg, Cognitive and Affective Development in Adolescence, 9 TRENDS IN COGNITIVE SCI. 69, 70 (2005) ("[A]t the core of adolescent cognitive development is the attainment of a more fully conscious, self-directed and self-regulating mind.").
49. Cauffman & Steinberg, supra note 29, at 327-28.
50. For a useful and accessible explanation of the still-growing teen brain, see PBS Frontline, Inside the Teenage Brain, Interview: Jay Giedd, www.pbs.org/wgbh/pages/frontline/shows/teenbrain/interviews/giedd.html (last visited Dec. 4, 2007) (prominent neuroscience researcher at the National Institute of Mental Health discussing his work on adolescent brain development);
51. see also AM. BAR ASS'N, JUV. JUST. CTR., CRUEL AND UNUSUAL PUNISHMENT: THE JUVENILE DEATH PENALTY, ADOLESCENCE, BRAIN DEVELOPMENT AND LEGAL CULPABILITY (January 2004) (containing a primer on the basics of the human brain, the new research about adolescent brain development, and the relevance of this research to juvenile crime).
52. See generally Elizabeth R. Sowell et al., In Vivo Evidence for Post-Adolescent Brain Maturation in Frontal and Striatal Regions, 2 NATURE NEUROSCIENCE 859 (1999).
53. See WEINBERGER ET AL., supra note 2, at 6-18 (discussing ongoing changes in the cellular structure of the brain during adolescence as revealed through neuroimaging techniques, and offering behavioral evidence that the brain is still developing); Elizabeth S. Scott & Laurence Steinberg, Blaming Youth, 81 TEX. L. REV. 799, 816 (2003) (discussing the research on brain development and noting that brain development continues through adolescence, particularly the areas of the brain controlling "long-term planning, regulation of emotion, impulse control, and the evaluation of risk and reward");
54. see also Mary Beckman, Crime Culpability, and the Adolescent Brain, SCI. MAG., July 30, 2004, at 596 (noting that Dr. Giedd "consider[s] 25 the age at which brain maturation peaks").
55. Jay N. Giedd, Structural Magnetic Resonance Imaging of the Adolescent Brain, 1021 ANNALS N.Y. ACAD. SCI 77, 77, 79-80 (2004). Myelination is critical to the brain's ability to transmit information precisely and efficiently. Id. at 80.
56. Id.
57. See generally JEAN-PAUL SARTRE, EXISTENTIALISM AND HUMAN EMOTION (Bernard Frechtman & Hazel E. Barnes trans., Philosophical Library 1957) (Sartre's most accessible volume on existentialist philosophy).
58. See generally J. D. SALINGER, THE CATCHER IN THE RYE (Little, Brown & Co. 1951) (classic American novel about teenage angst and rebellion).
59. See generally Smith, Defending and Despairing, supra note 6.
60. Consider, for example, the 1999 Lionel Tate case, in which a twelve-year-old boy was accused of the first-degree murder of a six-year-old girl in Pembroke, Florida. The initial plea offer was time in a juvenile institution, not an adult prison, and Lionel's mother and lawyer both rejected it. Looking back, I'm sure they wish they had made a different decision. See David A. Tanenhaus & Steven A. Drizin, "Owing to the Extreme Youth of the Accused": The Changing Legal Response to Juvenile Homicide, 92 J. CRIM. L. & CRIMINOLOGY 641, 678-81 (2002). The first offer was that Lionel plead guilty to second-degree murder in exchange for three years in a juvenile center, one year of house arrest, ten years of psychological testing and counseling, and 1000 hours of community service. Id. at 678. Lionel turned the offer down not once, but twice. Id. at 679. Professors Tanenhaus and Drizin ask the questions that apply in all these cases, whether the accused is twelve or twenty: "Can a twelve- or thirteen-year-old child like Lionel Tate be expected to appreciate the consequences of pleading guilty to murder in adult court? Can he or she truly understand the jeopardy faced by rejecting a plea? Can a present-oriented, impulsive adolescent possibly fathom a sentence of life without the possibility of parole?" Id. at 679 n.157.
61. One prominent scholar has noted that it is the rare defendant who is truly capable of making this all-important decision without considerable assistance from counsel: "The principal vice of the guilty-plea system is that it turns major consequences upon a single tactical decision, and few defendants seem truly capable of making the decision for themselves." Alschuler, supra note 5, at 1313.
62. See Grisso, Adolescents' Decision Making, supra note 6, at 12 (2006) (discussing research on youths' abilities to make decisions regarding plea bargains); Scott & Grisso, supra note 2, at 819-20 (arguing that in order for an accused to be competent to stand trial, he or she must also be able to make considered decisions about pleading and the waiver or assertion of rights). As Scott and Grisso explain: These decisions involve not only adequate factual and rational understanding, but also the ability to consider alternatives and make a choice in a decision making process. These abilities can be compromised by mental disorders and mental retardation. In addition, due to intellectual immaturity, youths may lack adequate capacities to process information and reason in making trial decisions, especially when the options are complex and their consequences far-reaching. Moreover, emotional and psychosocial immaturity may influence youths to make choices that reflect immature judgment. Id. at 819; see also Maroney, supra note 6, at 1385-90 (arguing that decisional competence is a component of adjudicative competence).
63. Arguing that a client is incompetent in making decisions can be a way of buying time, however. Time is often the most important variable in counseling clients about these weighty decisions.
64. See Cohen & Mandelbaum, supra note 3, at 369-82 (discussing the lawyer's role in counseling juvenile clients under the ethical rules and existing paradigms); Steven Zeidman, To Plead or Not to Plead: Effective Assistance and Client-Centered Counseling, 39 B.C. L. REV. 841, 894-907 (1998) (discussing the proper role of defense counsel in the decision of whether to plead guilty);
65. see also Rodney J. Uphoff, Who Should Control the Decision to Call a Witness: Respecting a Criminal Defendant's Tactical Choices," 68 U. CIN. L. REV. 763, 834 (2000) ("[R]espect for the client requires that the client be afforded the right to be foolish or wrong. That right is not, in my view, absolute. Rather, the good lawyer, like the good parent, will struggle to balance the client's freedom of choice with the lawyer's duty to prevent clients from inflicting harm upon themselves. Respecting client decisionmaking means allowing some defendant's [sic] to suffer the consequences of their foolhardy strategy. In some instances, however, conscientious counsel should . . . override the defendant's strategic wishes.").
66. The ethical rules that pertain to the lawyer-client relationship in counseling young people are set forth in MODEL RULES OF PROF'L CONDUCT R. 1.14 (1983): (a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible maintain a normal client-lawyer relationship with the client. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.
67. Cf. MODEL CODE OF PROF'L RESPONSIBILITY EC 7-11 (1969) ("The responsibilities of a lawyer may vary according to the intelligence, experience, mental condition, or age of a client . . . .").
68. It should be noted that this kind of counseling is never pleasant. See AMSTERDAM, supra note 5, § 201 ("[C]ounsel's difficult and painful responsibilities include making every reasonable effort to save the defendant from the defendant's ill-informed or ill-estimated choices.")
69. Hocking is Yiddish for "nagging." See LEO ROSTEN, THE NEW JOYS OF YIDDISH 138-39 (2001) (defining "hok" as "to talk a great deal; to yammer, to yak"). Hock comes from "hok a chainkik" (pronounced "sock a guy Nick"), which translates loosely to "strike a tea kettle." Id.
70. See AMSTERDAM, supra note 5, § 201 ("Of course, s/he must make absolutely clear to the client that if the client insists on pleading not guilty when the lawyer thinks a guilty plea wise, the lawyer will nevertheless defend the client vigorously and will raise every defense that the client legitimately has.").
71. I have indicated in previous work that I believe in "arm-twisting but not arm-breaking" in client counseling. See Smith, Rosie O'Neill Goes to Law School, supra note 16, at 37. In situations where the client is young and about to make a foolish, irrevocable decision, I confess I might come close to arm-breaking. See Amsterdam, supra note 5, § 201 (noting famously but unhelpfully that "the limits of allowable persuasion are fixed by the lawyer's conscience"); see also Rodney J. Uphoff, The Criminal Defense Lawyer as Effective Negotiator: A Systemic Approach, 2 CLINICAL L. REV. 73, 131 (1995) ("[H]ow hard counsel can lean turns on the seriousness of the case, the harm facing the defendant, the client's ability to make informed decisions, the certainty of the harm, the client's rationale for his or her decision and the means used to change the defendant's mind."). But see Alschuler, supra note 5, at 1310 ("If, after all the badgering, the cajolery, and the verbal abuse is concluded, a defendant still insists that he wishes to stand trial, the attorney's ethical obligation is simply to carry out his client's decision.").
72. See, e.g., Cohen & Mandelbaum, supra note 3, at 411.
73. For the author's view of how to sustain a career in indigent defense and not give in to cynicism and burnout, see Abbe Smith, Too Much Heart and Not Enough Heat: The Short Life and Fractured Ego of the Empathic, Heroic Public Defender, 37 U.C. DAVIS L. REV. 1203 (2004).
74. Cohen & Mandelbaum, supra note 3, at 382 n.124.
75. Alschuler, supra note 5, at 1309-10.
76. See id. (referring to "badgering" and "cajolery," along with "verbal abuse").
77. See id. at 1310: [D]efendants may not fully realize the extent of the penalty that our system exacts for an erroneous tactical decision. For these reasons, a Chicago public defender observed, "A lawyer shirks his duty when he does not coerce his client," and this statement suggests a fundamental dilemma for any defense attorney working under the constraints of the guilty-plea system. When a lawyer refuses to "coerce his client," [however], he also insures his failure; . . . he damages the attorney-client relationship, confirms the cynical suspicions of the client, undercuts a constitutional right, and incurs the resentment of the person whom he seeks to serve. The defense attorney's lot is therefore not a happy one - until he gets used to it.
78. For a thoughtful examination of the role of manipulation in client counseling, see Stephen Ellmann, Lawyers and Clients, 34 UCLA L. REV. 717 (1987). Ellmann defines manipulation broadly: [M]anipulation includes a wide range of behavior. Some of this conduct will be frankly exploitative, while some will be intended to be benign. Some will profoundly and permanently breach a client's right to choose for himself, while some may in the long run vindicate this right. Some, finally, will be unjustifiable, while some may be proven to be essential to the proper practice of law. Id. at 727.
79. See also David Luban, Paternalism and the Legal Profession, 1981 WIS. L. REV. 454, 458 ("[A] lawyer's manipulating a case or client for the client's own good - or, rather, for what the lawyer takes to be the client's own good even though the client does not see it that way . . . is called paternalism.");
80. Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUM. RTS. 1 (1975) (discussing paternalism in the lawyer-client relationship);
81. cf. Stephen Ellmann, Lawyering for Justice in a Flawed Democracy, 90 COLUM. L. REV. 116 (1990)
82. (critically discussing David Luban's endorsement of certain kinds of client manipulation in the course of reviewing Luban's book, LAWYERS AND JUSTICE: AN ETHICAL STUDY (1988)).
83. See Alschuler, supra note 5, at 1310 (arguing that a defense lawyer should never threaten to withdraw because a client declines to take the lawyer's advice, and arguing that professional codes should "be revised to make this action grounds for professional discipline"); AMSTERDAM, supra note 5, § 201 (counsel should avoid using language that "makes it seem as though counsel is threatening the client"); ABA STANDARDS, supra note 16, at 201 (allowing the use of fair persuasion to counsel a defendant to accept a plea bargain, but not "undue influence"); NAT'L LEGAL AID & DEFENDER ASS'N, PERFORMANCE GUIDELINES FOR CRIMINAL DEFENSE REPRESENTATION 6.3(b), available at http://www.nlada.org/Defender/Defender_Standards/Performance_Guidelines (last visited Dec. 4, 2007) ("The decision to enter a plea of guilty rests solely with the client, and counsel should not attempt to unduly influence that decision.") (emphasis added). But see Uresti v. Lynaugh, 821 F.2d 1099, 1102 (5th Cir. 1987) (finding that counsel may request permission to withdraw if the client insists on making the "foolhardy" choice of going to trial in lieu of pleading guilty).
84. See generally Lisa G. Lerman, Lying to Clients, 138 U. PA. L. REV. 659 (1990).
85. I often use pictures to help young clients conceptualize the difference between one sentence and another. It is not always effective. In a recent case involving a fifteen-year-old client facing a life sentence who was offered a twenty-year plea, I brought my client photographs of what I thought were youthful-looking sports figures in their mid-thirties. He thought they were all old.
86. The film that best conveys how difficult it can be to counsel criminal defendants in serious cases - where the defendant maintains innocence - is Criminal Justice, starring Anthony LaPaglia (the public defender), Forest Whitaker (the accused), Jennifer Grey (the prosecutor), and Rosie Perez (the complainant). CRIMINAL JUSTICE (HBO 1990). In the film, Whitaker is charged with a vicious assault and robbery, one that left Perez with a permanent scar across her face. Id. He receives a generous plea offer, and LaPaglia has to point out the advantages of the plea while still indicating his willingness to go to trial. Id. In one of the more controversial scenes (with my students at least), LaPaglia explains the difference between the sentence after plea and the likely sentence after trial as between walking his son to kindergarten and seeing him graduate from high school. Id. This is good client counseling.
87. See generally GISLI H. GUDJONSSON, THE PSYCHOLOGY OF INTERROGATIONS AND CONFESSIONS: A HANDBOOK (2003) (discussing the psychology of interrogations and offering recommendations for avoiding false confessions);
88. see also Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. REV. 891, 907-23 (2004) (discussing the social psychology of police interrogation and false confessions);
89. Barry C. Feld, Police Interrogation of Juveniles: An Empirical Study of Policy and Practice, 97 J. CRIM. L. & CRIMINOLOGY 219, 220 (2006) (arguing that a criminal confession is invariably "compelled, provoked and manipulated . . . by a detective who has been trained in a genuinely deceitful art," and noting that interrogation manuals teach the use of psychological tactics and strategies that heighten suspects' stress and anxiety and manipulate their vulnerabilities);
90. Miriam S. Gohara, A Lie for a Lie: False Confessions and the Case for Reconsidering the Legality of Deceptive Interrogation Techniques, 33 FORDHAM URB. L.J. 791, 808-16 (2006) (reviewing interrogation manuals that prescribe trickery and deception).
91. GUDJONSSON, supra note 60, at 8 (noting that that all psychologically sophisticated interrogation practices rely on a mix of influence and persuasion).
92. See ELISABETH KÜBLER-ROSS, ON DEATH AND DYING (1969) (offering research on people coping with terminal illness, and arguing that when people confront death they go through a cycle of emotional states in order to cope with grieving: denial and isolation, anger, bargaining, depression, and acceptance).
93. Wikipedia is described as a "free content encyclopedia project written collaboratively by volunteers." Wikipedia, Criticism of Wikipedia, http://en.wikipedia.org/wiki/Criticism_of_Wikipedia (last visited Nov. 16, 2007).
94. Wikipedia, Kübler-Ross Model, http://en.wikipedia.org/wiki/ K%C3%BCblerRoss_model (last visited Nov. 16, 2007).
95. See Joe Nocera, Fastow's Long Walk to Less Time, N.Y. TIMES, Sept. 30, 2006, at C1 (describing how the lawyer of Enron defendant Andrew Fastow moved him through "denial, depression, anger, acceptance and, finally, surrender"). There were a couple of wrinkles in the Fastow case, which helped move the process along. First, a frustrated prosecution began to hone in on Fastow's wife for filing a false income tax return, which led Fastow to cooperate with the government. Id. Second, it took Fastow three years after the Enron investigation began to agree to a plea bargain. Id. Fastow was accused of a white collar crime. Id. Most accused - especially those accused of ordinary street crime - do not get the luxury of this kind of time.
96. See generally JAMES GARBARINO ET AL., CHILDREN IN DANGER: COPING WITH THE CONSEQUENCES OF COMMUNITY VIOLENCE (1992) (exploring the lives of children in urban "war zones" and proposing strategies to help these children cope with violence and loss).
97. I know this is hard for lawyers. It's hard for me. Lawyers are not known for being quiet.
98. See generally Luban, supra note 55; Henning, supra note 3.
99. See Katherine Hunt Federle, The Ethics of Empowerment: Rethinking the Role of Lawyers in Interviewing and Counseling the Child Client, 64 FORDHAM L. REV. 1655, 1663-71 (1996) (discussing the "lawyer autonomy model" of client counseling).
100. See id. at 1656 (referring to "invasive [lawyering] practices that systematically disempower the client").
101. I attribute the phrase "client-centered" to Monroe Freedman, whom I regard as the quintessential client-centered lawyer. See generally MONROE H. FREEDMAN, LAWYERS' ETHICS IN AN ADVERSARY SYSTEM (1975);
102. see also Abbe Smith, The Difference in Criminal Defense and the
103. See Monroe H. Freedman, Henry Lord Brougham, Written by Himself, 19 GEO. J. LEGAL ETHICS 1213 (2006);
104. Fred C. Zacharias & Bruce A. Green, Reconceptualizing Advocacy Ethics, 74 GEO. WASH. L. REV. 1, 64 n.360 (2005) (noting the "Brougham-like view of Monroe Freedman").