Take Advantage of Surprise in Criminal Cases

Download a printable PDF of this article.

I have been going to court for more than 40 years, primarily as a criminal defense lawyer in the federal arena. I still get anxious every time, and I still can’t anticipate everything that will take place when I get there. But it has been a long time since something happened that I could not conceivably have predicted. Perry Mason moments are good for the movies, but they are rare in the real world of criminal defense. To be sure, things occur that are out of the ordinary, and in that sense, there are still surprises.

Criminal cases proceed through several stages: pre-indictment; pretrial developments; motions hearings; trial; and in most federal cases, sentencing. At the most basic level, defense lawyers try to help clients during every phase of a criminal case. As in the civil arena, using surprise to a tactical advantage means doing something to help the client achieve a better result or improve his or her situation. In a criminal case, that usually means avoiding the loss of liberty altogether or reducing the amount of freedom lost. What follows is a look at the surprises that pop up during many of these stages.

Most criminal cases end with a plea, so surprises there may be a good place to start. “Is this really a crime?” asked the judge as the prosecutor, my client, and I plowed through the ritual of a Rule 11 advisement. The mountainous paperwork (the plea agreement, the statement in advance of plea, and restitution documents) had been dutifully completed and filed with the court.

This was a surprising question, and I quickly assessed it. The charge was bankruptcy fraud, and I had concluded that, unfortunately, my client’s conduct was a crime. She had failed to disclose an asset on her bankruptcy petition—an asset that was later discovered and made known to the bankruptcy court. Specifically, she had $1,000 at her disposal. The amount was small, and the case had been referred to the U.S. Attorney’s Office by someone in the bankruptcy court. The sympathetic and unenthusiastic prosecutor and I had hashed out a plea agreement that landed the client in Zone A of the U.S. Sentencing Guidelines, which meant no incarceration.

I was distressed about the plea bargain but had recommended that my client take it to avoid the trial penalty that exists in federal court, despite protestations to the contrary. Being forced to plea-bargain is one of the dreadful duties of a criminal defense lawyer. It might have been worth the fight of a trial, but the facts did fit the material elements of a federal crime. A jury could find her guilty and if that happened, she’d be going to a federal prison camp rather than home.

Some judges just “mail it in,” so to speak, and are barely able to fake an interest in what they’re doing on the bench. But that hasn’t been my experience in federal court. The federal judges I’ve appeared before all take their jobs seriously and agonize particularly over sentencing. A change of plea, though ritualistic, is always taken seriously. Most judges recognize whether a deal is really a deal. They’ll smell the questionable ones. And defense counsel can do or say something that alerts the court that there may be a problem with a particular plea.

When the judge asked his surprising question, my options were to fight for the plea bargain or try to undo it. Trying to undo a plea bargain is not without risk. The plea-bargaining process requires trust between the prosecutor and defense counsel, and pleas frequently result from tough negotiations. Often a prosecutor feels strongly about a plea bargain, and casually trying to undo one could be viewed as a breach of trust. But every defense lawyer walks the tightrope of simultaneously maintaining credibility and zealously fighting for his or her client. In this case, I decided that disavowing the plea bargain would not be seen as a betrayal by the prosecutor, who disliked the case himself. So, again, the dilemma: Do I fight for it or try to nix it?