Associate, Jessica McDonald & Associates
Courts today rely almost exclusively on plea bargaining to move their cases through the system. A plea bargain is offered by the prosecutor to a guilty offender, and if the defendant takes the plea, both the State and the accused can avoid trial. Many times, a plea is a way to reduce exposure to a lengthier sentence. A client should only plea if they are in fact guilty of the crime. However, a client may feel pressure to take the deal, simply because it’s easier, even if they are not guilty. What is your responsibility as a lawyer? How much should you fight for your client?
Several years ago, I stumbled onto a book by Michael Morton called Getting Life.¹ This book changed my entire perspective on the nature of convictions in this country. Michael Morton was wrongfully convicted in Williamson County, Texas, in 1986, for the murder of his wife, although it was later proven that he was innocent, and the crime was committed by another person. Thanks to DNA evidence, which was in its infancy during that time, Morton’s innocence was established, and he was freed 25 years after his conviction. Morton’s case was unique because it was also later proven that the prosecutor intentionally withheld exculpatory evidence that could have proven Morton’s innocence at trial. District Attorney Ken Anderson was later charged and found to be in contempt of court by Texas’s 9th Judicial District for his role in withholding evidence in Morton’s trial. Anderson ultimately lost his law license and was sentenced to ten days in jail (of which he served five, with credit for good behavior).
Michael Morton was freed in 2011, after he was exonerated from his conviction. However, he had already served twenty-five years in prison for the crime and lost everything he had. In 2013, Texas Governor Rick Perry signed the Michael Morton Act into law, which is designed to ensure a more open discovery process, removing barriers for defense attorneys and defendants to access evidence.²
There is a weight that we as defense attorneys must carry to get it right the first time. For a defendant, the stakes are just too high to get it wrong. As the defense attorney, it is your duty to listen to your client’s story, evaluate the facts, and work to get the best deal possible for your client. But what if your client pushes back and refuses to concede guilt by taking a plea? The short answer is: You need to listen to your client!
II. When Your Client Should Not Take the Deal
Too many prosecutors and jaded defense attorneys find it easy to say, “Yeah, sure you didn’t do it, everyone says that!” or to discount the statement: “I didn’t do what they are accusing me of!” It’s all too easy to dismiss these comments as expected, coming from the accused, but it is important to recognize when a client is adamantly insisting on their innocence.
Recently, I represented a young woman accused of shoplifting. The first time I met her was in jail. She was wearing an orange jumpsuit, and she told me she had never been in trouble before. As I interviewed her to try to get the facts of the incident, she told me about the two guys and another girl she had gone to the popular large store with. The other three knew of the plan to shoplift, but she kept telling me she did not. She told me that she was at the jewelry counter, and about to pay for a $10 bracelet when the two males made their way through the checkout without paying. As the men attempted to leave the store, they were stopped at the exit. The two men, the other woman, and my client were all taken to an office, where loss-prevention specialists called the police and had them all arrested and taken into custody.
During discovery,³ I saw videos of my client in the store’s office, but there was not any kind of proof that she actually took anything or had the intent to steal. All the other videos showed the men in the video, but not my female client. The men were on video going through the motions of scanning merchandise, but they were not actually doing so. When some of the videos in the discovery packet did not play, I went to the prosecutor multiple times to inquire about the unplayable videos.
The prosecutor offered a plea for my client of forty-five days in jail, after admitting that she had not seen the videos. My client, a young mother who just wanted to get back to her small baby, was tempted to take the deal. She was not able to post the very low bond, as she was very poor. However, she continued to insist on her innocence. I told her I had no reason to doubt what she was saying, especially since I had yet to see any evidence on video that she was part of the shoplifting scheme.
As our next court date approached, I began asking the prosecutor for dismissal. In my mind, if no one could access any video proof that my client participated in shoplifting, how could the State even allow her to be convicted? How could my client even entertain the idea of taking a plea deal? Ultimately, the prosecutor admitted that she, too, could not find any evidence on the videos, and she dismissed the case. My client was thrilled! However, she had spent more than 30 days in jail, away from her family and small baby, and there was nothing that could be done to get that time back.
At a certain point in her case, it would have been easy to convince my client to take a deal. She was desperate to get back to her baby, which is only natural. However, something about the way she talked about the case told me I should persist. Receiving that notice of dismissal and being able to tell my client her case was dismissed was one of the best feelings I’ve experienced so far in my practice of law.
III. “I want a psychiatric evaluation, I was insane.”
Another one of my cases involved a client who was charged with Assault to a Peace Officer, which is a second degree felony, carrying a punishment range between 2 to 20 years in prison.⁴ During an arrest for failing to identify herself to officers, she began having a panic attack and told officers that she was suicidal. While officers were arresting her, they placed her face down on a gravel driveway. She began hitting her head against the rocks, actively trying to injure herself. She told me she was trying to die right there and then. When she was placed in the patrol car, her panic worsened, and she tried to do anything possible to escape from the patrol car. In the process, she head-butted the police officer and busted his lip, resulting in the felony charge.
She told me multiple times that she did not mean to hit the officer, but in fact, she was having a psychotic episode. When the prosecutor offered a plea of 6-years deferred adjudication⁵ with community service hours, my client adamantly rejected the offer, saying she wanted a psychiatric evaluation. She told me that she was “crazy” at the time and that she did not know what she was doing. She felt that having a 6-year term of probation, even if it would be deferred, was unfair, and would limit her from pursuing her goals and dreams.
The legal standard for insanity is difficult to meet. Fewer than 1% of cases use this affirmative defense in trial; it’s incredibly rare.⁶ In Texas, the test for determining insanity is whether, at the time of the conduct charged, the defendant, “as a result of a severe mental disease or defect, did not know that her conduct was wrong.”⁷
In this case, the State honored our request for the psychiatric expert to administer the mental health inquiry, and actually filed the motion themselves. The client was evaluated by a clinical forensic psychologist, whose report said she was insane at the time of the incident. The psychologist found that the client was “having a manic melt-down episode that compromised her judgment and decision-making capabilities” during the incident. After weighing all the evidence, the psychologist concluded that “[she] was not sane at the time of her alleged criminal behaviors.”
After receiving the notice that the client was insane at the time of the incident, my law partner and I asked for a dismissal. However, the State was reluctant. Ethically, we could not allow the client to accept a deferred adjudication probation offer, because, even if the finding of guilt was to be deferred, she would still be pleading guilty to an offense that she committed while legally insane. As her attorney, I could not let her do that, because a guilty plea must be made “freely, voluntarily, and without coercion.”⁸
Our only option was to go to trial. Our client was terrified to announce to the court that she wanted a jury trial, but she understood the reasons. I filed a notice of our intent to use the insanity defense, and we started preparing. As the next court date got closer, the prosecutor reached out to me and asked about the case. I went to his office and asked for a dismissal once more. He told me that he didn’t agree with the conclusions that the forensic psychologist had made. I reminded him that such findings of insanity are incredibly rare and suggested that he would have little chance at defeating the report in a trial with the testimony of the expert that the State chose.
After a little more back and forth, the prosecutor finally agreed to dismiss the charges against our client, so long as I could show some mitigating factors.⁹ I readily agreed to his conditions and left to call my client. She and I assembled a packet that included the documents he requested. The packet showed that she is now under the care of a psychiatrist, taking her prescribed medication, that she has taken an anger management course, and that she has remained gainfully employed throughout this entire process, despite the difficulty of obtaining and keeping a job with a pending felony charge.
On the day of her final hearing before trial, I submitted the documents to the prosecutor, and he presented me with the order for dismissal of the charge. I was absolutely thrilled. Originally, we told the client that her request for a sanity evaluation would likely not result in anything substantive. However, she believed that she was not in her right mind at the time of the incident. I’m so glad that I listened! Without her insistence of obtaining a psychiatric evaluation, she could very well be stuck with a plea deal that she did not deserve.
Six years is a long time to be on probation, and people often have difficulty completing the terms successfully. Because she would have been pleading guilty to a second degree felony, she could have faced anywhere between 2 to 20 years in prison if her probation was ever revoked for any reason. Unfathomable!
The morning that I received the dismissal sheet from the prosecutor was wonderful. I hugged the client in the hallway, told her how proud I was that she had believed in herself, and how glad I was that she got us to pay attention to her. She now has her entire future ahead of her.
IV. Actual Innocence
During law school, I had the incredibly good fortune of working with Professor Cheryl Wattley, one of the founding directors of the Joyce Ann Brown Innocence Clinic at the UNT Dallas College of Law. Professor Wattley has been successful in helping to exonerate at least four people who were wrongfully convicted.
With Professor Wattley’s guidance, I had the opportunity to work on a case through the school’s innocence clinic. Through that work, I was able to see firsthand how critical it is to present a case correctly the first time. When our client was 16 years old, he was convicted of murdering a woman, even though he was nowhere near the property where the victim died at the time she was shot. He has consistently insisted on his innocence from the beginning. Fortunately, he was granted parole on his 55-year sentence, but he seeks an actual innocence finding from the courts in order to clear his name.
I fully believe that our client was wrongfully convicted nearly thirty years ago. There were several errors made by the client’s previous attorney. First, the attorney failed to follow up on the client’s alibi. He missed crucial opportunities to talk to witnesses who could have placed our client away from the scene of the crime at the time of the crime. The few witnesses he did talk to, he failed to put many of them on the stand. Our client’s conviction was largely based on the testimony of one woman, who testified that she saw the backside of a person resembling the client shoot toward the victim. The witness never saw the shooter’s face—in fact, it was getting dark outside—and she was looking at the scene from a distance, behind an obstruction that the shooter could not see.
Additionally, police named our client as the main suspect within 24 hours of the crime; his name was published in the newspaper, and he was arrested shortly afterward. Essentially, the police failed to pursue any other potential leads. Because the eyewitness’s testimony fit well enough with the description of the person police had described, and was the only evidence presented, the jury convicted the client.
At the time of his trial, our client was very young, and he was scared of what was happening. It is unknown whether he adamantly insisted on his innocence to his attorney; the trial was thirty years ago. The questions remain, however: What if his attorney had asked more questions? What if the attorney had listened a little more closely to his client, and fought a little harder? Would our client had received a conviction for murder with a 55-year sentence at the age of 16?
The consequences of a wrongful conviction are dire. According to the Innocence Project, between 2–10% of all incarcerated persons in the United States are actually innocent.¹⁰ How has the system failed to allow such a high number? The National Association of Criminal Defense Lawyers cites that more than 97% of federal criminal cases were resolved by a plea, and fewer than 3% of federal criminal cases resulted in a trial.¹¹
Many times, the criminal defense attorney is the only person standing between the client and the State, who intends to convict the defendant so that they receive the highest sentence possible by law. It is crucial to develop a good working relationship with the prosecutor. I have found that prosecutors are often willing to listen to a defendant’s mitigating circumstances and reasonable requests if you can approach them with respect, and ready to speak knowledgeably about your client’s case.
All attorneys are called upon to represent their clients with zealous advocacy.¹² As defense attorneys, it is critical that we listen carefully to our clients. As their attorneys, we are the only ones who stand between them and the State. Each story is different, each client is unique. Every one of our clients deserves zealous advocacy. Although we may not be able to get each case dismissed, or save every client from a harsh sentence, if we listen carefully to the details of our clients’ cases, we have a much better chance of advocating for them and getting them the just result that they deserve.
Suggested Citation: Sarah Carmichael, The Importance of Believing Your Client, ACCESSIBLE LAW, Summer 2023, at 55.
 Michael Morton, Getting Life: An Innocent Man’s 25-Year Journey from Prison to Peace (2014).
 To read more about the Michael Morton Act see Brandi Grissom, Perry Signs Michael Morton Act, The Tex. Tribune (May 16, 2013, 2:00 PM CST), https://www.texastribune.org/2013/05/16/gov-rick-perry-signs-michael-morton-act/.
 The discovery period is the formal process in which both sides gather and share information about the evidence in a case.
 Tex. Penal Code Ann. §§ 22.01(b-2), 12.33.
 Deferred adjudication is a special kind of probation which delays a conviction until the probation term is completed. A person who successfully completes this probation will not be found guilty, and therefore no conviction on their criminal record.
 Five Surprising Facts about Insanity Defenses, The Law Dictionary, https://thelawdictionary.org/article/five-surprising-facts-insanity-defenses/ (last visited May 10, 2023).
 Tex. Penal Code Ann. § 8.01.
 See Machibroda v. United States, 368 U.S. 487 (1962).
 A mitigating factor is a circumstance in a defendant’s life which may explain their behavior in a more favorable light. Here, my client was able to show that she was proactively treating her mental health issues under the care of a doctor, which helped the prosecutor see that she was taking this charge seriously and doing something about it.
 Innocence Staff, How Many Innocent People are in Prison?, Innocence Project (Dec. 12, 2011), https://innocenceproject.org/how-many-innocent-people-are-in-prison/.
 Nat’l Ass’n of Criminal Def. Lawyers, THE TRIAL PENALTY: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It 14 (2018), https://www.nacdl.org/getattachment/95b7f0f5-90df-4f9f-9115-520b3f58036a/the-trial-penalty-the-sixth-amendment-right-to-trial-on-the-verge-of-extinction-and-how-to-save-it.pdf.
 Model Code of Prof’l Conduct r. 1.3 cmt. (Am. Bar Ass’n 1983), https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_3_diligence/comment_on_rule_1_3/.