Criminal Law
March-April 2024

What I’ve learned from defense attorneys

By Daniel Cox
First Assistant District Attorney in Henderson County

I’ve noticed over the last couple years defense attorneys complaining about their clients more often, that clients are more stubborn and entitled. The intellect of the average defendant doesn’t seem to be what it used to. There have always been jailhouse lawyers doling out free advice, but apparently it’s worse now, with amateur advice such as:

            •          “Everybody is entitled to at least one 12.44.”

            •          “Don’t take the first plea offer—the prosecutor has to make you at least four.”

            •          “The cops didn’t read my Miranda rights so everything gets thrown out.”

            •          “The cops have to field-test the meth in front of me or else it doesn’t count.”

            Today’s defendants seem to value the counsel of their fellow inmates more than that of their attorneys.

            I’ve had many defense attorneys tell me, after their clients reject reasonable and fair plea offers, that I don’t know what it’s like these days trying to reason with defendants. They wish I knew what they are dealing with. Which got me thinking about a couple of great lessons I’ve learned from defense attorneys. With this in mind, I sought out some local defense attorneys and a new prosecutor in our office who spent 20 years in criminal defense, and I asked them what they wish prosecutors knew about their jobs. Their answers were both expected and surprising.

Plea bargaining

The first lesson I learned from a defense attorney regarded plea bargain negotiations. When I was a baby misdemeanor prosecutor, a defense attorney came up to me one day in court and said, “Look, you made a very fair and reasonable offer, which my client should accept. But he paid me a lot of money. I need to make it look like I worked for him and got him a better deal instead of just taking the first offer.”

            This conversation has essentially turned me into a used-car salesman. My first plea offer is like the sticker price on a 2013 Toyota Corolla at Carmax. While I consider that first offer to be fair and reasonable, there is often some wiggle room. Only instead of “checking with my manager,” I’m just getting to a resolution that both I and the defense attorney can live with. 

            In a similar vein, when I was a baby felony prosecutor, no habitual defendant got an offer under 25 years. This unofficial policy of mine didn’t last long. I was being stubborn when a defense attorney told me, “His first two pen trips were for two years and four years. He got caught with 1.5 grams of meth. Thirty years is a tough pill to swallow.” It was then that I realized that not every 25-to-life case needs an offer of 25-plus years. It was another lesson I learned courtesy of a defense attorney.

            As I spoke to defense attorneys for this article, a lot of what I heard was about plea bargaining. Which makes sense, seeing the vast majority of cases are resolved without a trial. The gist of what these attorneys said was that it is in the best interest of everyone to move cases quickly. And there are specific reasons defense attorneys benefit from a quick resolution. When prosecutors are stubborn or unreasonable with an offer, a case that could have been moved quickly all of a sudden drags out for three years. And that turns into 20 docket calls, 15 visits to the jail, hundreds of jail calls from the client, and dozens of phone calls from the client’s family members. That $1,500 court-appointed fee comes out to about $6.37 an hour. Now, the financial well-being of defense attorneys is not prosecutors’ problem, and some cases just have to be tried, but I heard defense attorney after defense attorney say, “If we can move a case along, let’s move it along.”

The other side of the story

One attorney I spoke to relayed a lesson he learned when he was a baby misdemeanor prosecutor himself. He was trying to work out a family violence case with opposing counsel. This case had an independent, third-party witness who was good for the prosecution. The young misdemeanor prosecutor pointed out this fact to the seasoned defense attorney, who asked who the witness was. “Oh, that guy?!” the defense attorney responded. “You can’t put him on the stand. He likes to sexually assault little boys! Everybody in town knows that!” (I should point out that this attorney used a much more vulgar term to describe sexual assault of a child.)

            The young prosecutor was mortified and profusely thanked defense counsel for that revelation, and the point was made. The young prosecutor, now a defense attorney himself, learned that you can’t rely on the offense report too much. As the sayings go, there are two sides to every story and there’s more than meets the eye. The offense report contains a part of the story, but not all of it.

            Another defense attorney I recently asked for input for this article shared a similar thought. He said he often knows more about the case than anybody in the courtroom—certainly more than the judge, but more than the prosecutors, too. And it makes sense: The defense attorney gets to see our discovery—but we don’t get theirs. Sure, sometimes a defendant gives a statement to the police, but even then, the prosecutors don’t get the entirety of the defendant’s version of events or personal background. But the defense attorney gets to talk to his client, and he gets not just the client’s story and version of the offense, but also any mitigating facts for punishment: the disturbing or challenging childhood, the PTSD from six deployments to Iraq or Afghanistan, or, as in the case of the third-party witness with a certain “proclivity” as discussed above, impeaching information about State’s witnesses.

            No amount of preparation and diligence changes the fact that prosecutors may talk to only one party and that we get only one side of the story. That’s the nature of the non-reciprocal discovery system under which we work. We get the case file from law enforcement, whereas the defense attorney benefits from our discovery and access to his client, who has the other side of the story.

Convinced of their innocence

Jeff Herrington, an ADA in our office who spent 20 years as a defense attorney, was also the elected DA in Anderson County before he did defense work. I consulted Jeff for this article, and he mentioned something I’d never thought of. We all know that the passage of time is bad for the State. Memories fade, witnesses get lost, victims stop caring, and juries wonder, “If this case is so important, why did it take four years to get to trial?” Jeff noted that as time goes by, defendants sometimes convince themselves of their innocence. As Jeff put it, sitting in jail for months or more, with little to do but think and often with the prodding and support of their pod-mates, defendants convince themselves that they’re not guilty. The victim deserved it. The cops are corrupt. The State is in on it. A snitch set me up. The witnesses are lying. Whatever the excuse may be, the longer defendants sit there, the more they become convinced of their innocence.

            Which can clearly be an impediment to plea negotiations. I mentioned the need for wiggle room earlier in this article, but Jeff told me not to have too much. If the State’s first offer is 12 years on a second-degree felony and a couple months later that 12-year offer turns into a four-year offer, the defendant starts to think that the State’s case is weak. While the defense attorney is advising his client to jump at four years, the seed has already been planted. The defendant thinks that if he just waits a little bit longer, that four years might turn into two or maybe even something better—probation, dismissal, or a plea to time served.

Other morsels of wisdom

Some other quick hits I heard when asking around the defense bar: 

            •          “Not all of us are rich.”

            •          “Just because I do a good job and fight for my client does not mean I’m a true believer.”

            •          “I’ll file a motion to suppress and ask for a contested hearing because my client needs to hear the cop testify. Sometimes that is the wake-up call that they need.”

            •          “Sometimes, we advise our client to take the low TDCJ [Texas Department of Criminal Justice] offer because we know he’ll screw up deferred and get a lot more time when the inevitable Motion to Proceed is filed.”

In conclusion

Finally, another lesson I took from a defense attorney was an indirect one. It wasn’t a defense attorney sitting me down and imparting sage advice; it was something I observed in court. I had a contested hearing on a Motion to Revoke Community Supervision. At the end, the judge revoked probation and sentenced the defendant to time in TDCJ.

            I guess this defense attorney didn’t thoroughly advise his client of what might happen in this hearing (or the client wasn’t listening), because the defendant asked his attorney, “What happens now?” Counsel responded with, “Well, I’m going to go home and drink bourbon. You’re going to prison.”

            As callous (and at the same time, kind of funny) as that response was, I try to remember what he said that day to his client. Yes, prosecutors see and deal with horrible and traumatic things that happen to people. Yes, we see human suffering. Yes, we have people’s liberty and freedom in our hands. We have stressful jobs. But at the end of the day, we’re not going to prison. We’re going home at the end of the day. We aren’t the people facing years in prison, and we aren’t the people who have been victimized. It could be worse. So let’s try to leave the job at the courthouse and not take it home.

            For the sake of my mental health and personal relationships, that may be the most valuable lesson I’ve learned from a defense attorney.