COFFEE IS FOR CLOSERS: How Wells Fargo Created A Culture Of Fraud

The title of this article comes from a line in the 1984 Pulitzer Prize and Tony winning play Glengarry Glen Ross by David Mamet that was made into the 1992 movie starring Alec Baldwin, Al Pacino, Jack Lemmon, Alan Arkin, Ed Harris and Kevin Spacey. The story is a dark portrayal of salesman who, unable to make their sales numbers, are informed by super-salesman Blake, played by Alec Baldwin, that the company is having a sales contest. First prize is a Cadillac Eldorado, second prize is a set of steak knives and third place gets fired. When Lemmon goes to pour himself a cup of coffee, Baldwin tells him, “Put that coffee down! Coffee’s for closers only. Do you think I’m fucking with you? I am not fucking with you.” Lemmon complains that the leads the company supplies them are weak and cannot close the sale. Blake responds, “The leads are weak. Fucking leads are weak? You’re weak.” In desperation, two of the salesmen steal the new prospective client leads that are promised to the top salesman who wins the contest. It’s an examination of what desperate men will do when pushed to the edge.

Alec Baldwin’s seven and a half minute monologue is worth watching, it is superb and soul-crushing and on the mark. It is the epitome of a cut-throat sales culture. I remember seeing the film in the theater and feeling a sickening knot form in my stomach. I was in sales for twelve years before I went to law school and it reminded me of every sales manager I ever worked for. In 1994, I went to work as a stockbroker with Dean Witter Reynolds, which later merged with Morgan Stanley. After a month of training in Dean Witter’s World Trade Center office in New York, we were sent back to the branch with the promise that we could become wealthy if we just did exactly what we were told to do. We had to prospect for new clients every day. Smile and dial, one hundred dials a day. The theory was that for every one hundred calls, you would get one new client. And ninety-nine hang-ups or “go to hell’s.” That’s sales.

My sales manager, whom I still vividly remember with no fondness whatever, embodied the ethos of Alec Baldwin’s Blake. He was no joke. He was a top salesman who made a ton of money and jumped off the hamster wheel into management and continued to make a ton of money. He was also the biggest son of a bitch I ever met. He was whip-thin, tall and had a hawkish stare that could burn a hole like a laser through your ego. Nobody was safe. God forbid you got up from your desk to get a cup of coffee when he happened to be standing in the hallway just outside his corner office with full view of both hallways outside broker offices, surveying his domain and searching out a victim like a lion picking out the weakest in a herd of gazelle. If you crossed his line of sight all you could do was gird yourself for the coming onslaught. With a smile and a low-tone of voice he would dress you down to a nub if he felt your performance wasn’t up to par. He didn’t care if you were top salesman the month before. That was last month, what the hell are you doing this month?

Wells Fargo has been in the news of late for creating a unforgiving sales culture that resulted in employees opening 1.5 million deposit accounts and 565,000 credit card accounts without customer knowledge in order to meet company sales goals. (“Wells Fargo Eliminating Sales Goals After Fake Account Fraud” and “Wells Fargo Fires 5,300 For Illegally Opening Accounts, Credit Cards,” by Kelly Poe writing for AL.com). According to a complaint filed by the Los Angeles City Attorney, employees “opened fraudulent accounts because they were given ‘unreachable quotas,’” and that “managers often tell employees to do whatever it takes to reach their quotas.” Apparently, according to the complaint, if employees did not reach their quotas, they were required to “work hours beyond their typical work schedule without being compensated for that extra work time and/or threatened with termination.” I’m no labor lawyer but something seems seriously wrong with employees not being compensated for working extra time. In response, Wells Fargo fired the 5,300 employees who opened the fraudulent accounts, paid restitution to the customers affected, paid a $100 million fine to the Consumer Financial Protection Bureau’s Civil Penalty Fund, which is the largest fine paid to the bureau that was created by congress after the 2008 financial crisis and the employee who ran the division that perpetrated the fraud, Carrie Tolstedt, “retired” with glowing praise from CEO John Stumpf for a job well done and a stellar career. Oh, and Tolstedt is going to have a very soft landing with a golden parachute estimated at $125 million. (“Why Is Wells Fargo CEO John Stumpf Making These 3 Major Mistakes,” by John Maxfield for Fox Business).

Order has been restored and the world is spinning in the right direction again. No harm no foul, right? Wrong. Where the hell is the Department of Justice? This fraud didn’t happen overnight, it happened over five years from 2011 to 2015. And nobody noticed? Nobody noticed 2 million total accounts with insufficient fund fees, overdraft charges and other fees? (“Wells Fargo Fires 5,300 For Illegally Opening Accounts, Credit Cards”). Somebody fall asleep in compliance? Did branch managers turn a blind eye because they were evaluated on their employees and branches meeting sales quotas? I didn’t always hit my sales quotas and when I didn’t I knew I would have to endure the wrath of that son of a bitch in the corner office but it never once crossed my mind to commit fraud to cover my ass. If one of my clients gets busted with one forged check or one counterfeit $20 bill, the DA is going to prosecute. Client commits a $1 million fraud? That’s a 20-year prison offer. Depending on the level of fraud my client may get a probation or prison time but there is no paying restitution and a fine and going back to business as usual without some type of criminal consequence.

Why is Wells Fargo being treated differently? According to a 2013 Forbes article, “America’s Biggest Banks: JPMorgan, Wells Fargo Keep Growing While BofA, Citi Shrink,” by Halah Touryalai, Wells Fargo is the fourth largest bank in the United States with over $1.4 trillion in assets and more than 6,000 branches (“Why Is Wells Fargo CEO John Stumpf Making These 3 Major Mistakes”). Wells Fargo generates a lot of tax revenue to the U.S. government. I don’t know, call me crazy, but maybe that has something to do with the $100 million slap on the ass and a pass from the DOJ. What about the 5,300 employees that committed multiple counts of fraud? What about the managers who directly supervised them? What about the managers up the line? No arrests, no charges, nothing. Wells Fargo customers and shareholders really got screwed. Not only did Ms. Tolstedt cost the bank $100 million in fines but the bank paid her $125 million dollars for the favor. While my clients can expect a criminal prosecution and all the goodies that come with it, Ms. Tolstedt can buy herself a whole lot of comfort and time on a beach.

Instead of laying blame where it belongs, with Ms. Tolstedt, and accepting responsibility for the shitty culture he developed, Stumpf blames the employees. In typical blowhard fashion, Stumpf said there was no incentive to “do bad things” and that “if they’re [the employees] not going to do the thing that we ask them to do — put customer values first, honor our vision and values — I don’t want them here.” (Wink, wink). A directive to achieve high sales quotas rarely falls in line with putting customer values first. When faced with hitting a high sales goal, the salesperson is more concerned with hitting the goal than meeting the customer’s needs. They’re more concerned with surviving another month. I remember mutual fund wholesalers always came through the office pitching their latest fund and the firm incentivizing us to sell a particular fund for a higher commission. We referred to these funds as “the flavor of the month.” And you better be pitching it to your clients and prospects and closing sales. I’m not justifying or excusing criminal behavior, not in the slightest, but I call bullshit on Stumpf’s self-serving, ass-covering public statements. Stump lays the blame on his employees who, as Maxfield correctly points out, were “the most unable to protect and provide for themselves while at the same time coming to the defense of the executive who oversaw the fraud …” Remember the Golden Rule — He Who Has The Gold Maketh The Rules And Escapeth Prosecution. Some things never change.

Spring Cleaning at Precinct 4

What the hell is going on at Harris County Constable Precinct 4? That’s been the question on everyone’s mind for the last few weeks since the news broke that over 20,000 items of evidence were destroyed. It’s hard to even visualize what 20,000 pieces of evidence looks like, how much space it consumed in the Precinct 4 evidence room. According to a September 2, 2016 article written by Zach Despart for the Houston Press, the number of missing individual pieces of evidence is 21,500, affecting 1,072 open cases and an additional 600 defendants who were already convicted. In the time since the debacle came to light, the Harris County District Attorney’s Office has dismissed 142 cases.

The numbers don’t add up. It is believed that the bulk of the evidence destroyed is drug evidence. The vast majority of drug cases involve a minimal amount of drugs, usually less than one gram and by a wide margin, cocaine in either powder or rock form, is the most prevalent controlled substance seized. Less than a gram of cocaine can be anything from residue in a crack pipe to one or two rocks of crack. If 21,500 individual pieces of evidence were destroyed, it defies logic that only 1,672 past and current cases and defendants are in question. If we are to believe the numbers, there are, rather were, 13 pieces of evidence per case.From the looks of things, District Attorney Devon Anderson, Precinct 4 Constable Mark Herman and former Precinct 4 Constable and current Harris County Sheriff Ron Hickman are chasing their tails in circles and don’t have any idea how many cases are really affected. Or maybe they do but are unwilling to disclose the real scope of the damage until they figure out how they’re going to handle it. Frankly, as a law enforcement agency, Precinct 4 has never been well-regarded for the quality of its officers or investigations. Brian Rogers of the Houston Chronicle, reported on September 2, 2016, that Precinct 4 has been unable to provide the DA’s office with a complete list of pending cases affected. It seems more likely that considerably more cases are involved than the 1,672 reported by the DA’s office.

How could something like this happen? Was it criminal conduct or just plain stupidity. Mark Herman said he did not learn about the destroyed evidence until March or April of this year and fired the deputy responsible after an internal affairs investigation determined the deputy committed “some gross policy violations” but whether there was “a gross violation of the law” he will leave to Devon Anderson and investigators. How does one make a mistake of such epic proportions? How did Herman miss this? I thought about the movie The Untouchables and the speech Kevin Costner as Eliot Ness gave to police officers assigned to his task force to dismantle Al Capone’s bootlegging business during Prohibition. I looked all over for it and couldn’t find it but it goes something like this, “If you’re going to drink, drink whiskey and not vodka. I would rather know you’re drunk than think you’re stupid.” In this case we can’t help but walk away with a clear sense that this was a monumental case of stupid. There is a chain of command, policies and protocols or at least we would think there are. Did the deputy at the center of this embarrassment do it on his own? Was he supervised? Was he given a list of evidence to destroy and if he was who gave it to him? How was the evidence destroyed? Where was it destroyed? But these are not the most important questions, not by a long shot.

The most important question is why in the hell did the DA’s office wait five months to notify the defense bar?

I understand that the DA’s Public Integrity Division has been investigating the case since Herman first told them about evidence being destroyed. I understand that investigations are confidential to maintain integrity and prevent further loss of evidence. However, in this case, Precinct 4’s Internal Affairs division conducted an investigation (not saying it was complete by any means) and the offending deputy fired. The DA’s office investigation was already compromised. But defendants were sitting in jail awaiting court dates and pleading guilty in cases the DA’s office was unable to make because the evidence had been destroyed and nobody said a word. There is no excuse, no justification for not immediately informing lawyers whose clients were affected.

The second most important question is when were the rank and file prosecutors told the cases they were responsible for prosecuting were compromised?

From what I have seen so far, it appears the administration didn’t tell the line prosecutors until the story broke. And why weren’t they told earlier? We can’t blame the rank and file for the administration’s blunders; however, this should serve as a lesson in humility. I can’t count the number of times a prosecutor — usually not one of the good ones — has scoffed or bluntly told me he or she does not believe anything my “lying piece of shit client says” when I have presented a defense but they sure took offense when I questioned the integrity of an officer or investigation. Prosecutors, this case right here is why we question the integrity of some, not all, officers and some, not all, police investigations. And the administration’s handling of this cluster is why some are questioning your integrity. Not a good feeling, is it? Most of the prosecutors I deal with are good people, people I respect and who treat my clients fairly. For the prosecutors who could benefit from a little more training in how they wield their authority, perhaps you should consider this situation before your next smug remark or before you mount your high horse and ride it all over a defendant.

Police agencies have a sacred duty to preserve all evidence and maintain the integrity of their investigation because as often as evidence seals the fates of our clients that evidence has in many cases also served to exonerate them. If the State can’t prove it’s case because an officer, a police agency or a prosecutor screwed the pooch that’s the State’s problem. Don’t wait. Don’t sit on the problem while defendants rot in jail. Do the right thing and dump the case because it’s, I don’t know, one of those quaint little constitutional things. Justice demands it.

Beasts of Burden

I received an email from a friend last week.

He is a criminal defense lawyer, a damn good one. He told me that he was just barely getting over the PTSD (his word) of having shepherded an otherwise good human being to fifteen years in prison in a very serious case that, had it gone to trial, a jury would have surely given him a life sentence. Adding salt to the wound, the client’s family sees my friend as the enemy, despite the fact it was the client who committed a terrible crime that left him with the Hobson’s Choice of accepting a deal for fifteen years in prison over a life sentence.

It is often the case that the client or the client’s family blames the lawyer for the situation the client got himself or herself into or the sentence they get as a result. Failure to accept responsibility for their circumstances is the hallmark trait of most defendants and their families – the families are oftentimes enablers of the client’s behavior and the stories clients tell their families about their cases don’t even remotely resemble the facts or the truth. The lawyer is left looking like an inept moron and is powerless to correct any misconceptions because of attorney-client privilege.

My friend is no rookie. He’s not going through first-time battle trauma. This is a man with a distinguished twenty-six-year career in criminal practice who has defended numerous clients charged with serious crimes, many of them high-profile media cases. The mental and emotional fatigue, the second-guessing and self-doubt, running and re-running everything you’ve done on an endless mental loop, questioning if you did it right or if you could have done more is the burden we bear in this line of work.

I have often joked that criminal defense lawyers must have been abused children because we are drawn to a line of work where we get abused daily. We deal with people with whom we wouldn’t otherwise associate and manage daily crises and varying levels of abuse by the courts, the State or our clients. Every day is a fight. It got me thinking about “normal” people and “normal” lines of work. For example, I think of my friends who are in real estate. They have the pressure of starting every month at zero. They have to get new listings and sign new buyers. They deal with regular folks, people with education and manners. People with jobs. They walk clients through homes and pitch the vision of what the client’s life would be like in that home, the dream, family togetherness. The greatest stressors are losing a sale, a listing, or a client or finding new business. Very different from a typical criminal defense lawyer’s day.

Almost all of our clients are people with whom we have nothing in common. Our clients come to court in orange jumpsuits and handcuffs or on a chain with several other defendants. Some are poor, many are uneducated and many are unemployed. Their manners are limited to calling you “sir” or “ma’am” which often devolves into calling you names not heard in polite society when you give them news they don’t want to hear. They are often charged with serious crimes. Prosecutors read probable cause to the judge that goes from the comical to the macabre. As you stand next to your client you are hit by the surrealism of listening to how a defendant sexually assaulted a child or committed murder or aggravated robbery. The daily horror show of criminal work. Every day we take on the burden of defending these people. And it is a burden.

When you take a case, you take on the responsibility of putting everything to the side and representing that client zealously. You learn the client’s family history, mental health history, and criminal history. You review the facts and evidence. You pore over statutes and cases. The ultimate goal is to pull your client out of the hole they dug for themselves and get the best result possible, whether that be by dismissal, plea agreement or through trial. Throughout the process you build a relationship with your client. You deal with their anger and their fears. You live the case. When you take on a case, you consume and carry with you everything the client is accused of and that includes everything that happened to the victim. Your mind absorbs all the ugliness and over time it becomes a soul-crushing exercise to see and hear what people do to one another. Watching a three-year-old child’s videotaped statement describing how she was sexually abused or looking through the scene photos and autopsy photos of a murder case leaves a mark. All of this takes its toll. None of it can be un-seen or un-heard, it stays with you forever. Over time, each case will work its way to the back of your mind where it usually remains quietly but leaves a permanent residue. The only way to successfully defend your client is to force these things to the side and look solely to defending your client because nobody else will. Nobody else gives a damn.

And nobody gave a damn when it mattered. Oh, the families will bang the drum and make noise about helping and supporting their loved one but the truth is that in the majority of cases they weren’t around when they should have been and didn’t do what they should have done as parents so their son or daughter wouldn’t be in their current position in the first place. Like, teaching them not to take drugs, not to steal or rob, to go to school; the things that form productive human beings. But they want the lawyer to quickly fix what they broke over many years and that is just not possible.

Despite our best efforts and the countless hours and sweat we invest in a case, in our client, despite the arguments with prosecutors and arguments we make to the court, we are sometimes unable to pull our clients unscathed from the mangled messes in which they’ve put themselves. Sometimes you have to make the Hobson’s Choice. Sometimes you have to tell your client that fifteen years in prison is better than a life sentence. That giving up a chunk of their life is necessary to save the rest of their life.

The recriminations come immediately. “This is my life” or “You’re playing with my life” are common refrains. Forget that they didn’t think about their life when they made the decision that led them to face prison. The client hates you. The client’s family hates you. They tell you they wouldn’t be going to prison if they had a better lawyer. They accuse you of not working on their case. Sometime down the road you may get a call from a lawyer who represents the client on appeal or a writ, claiming you didn’t represent your client effectively. In this profession we are often derided and rarely appreciated. It defies description how it feels to bust your ass for a client only to be told you didn’t do enough, weren’t good enough.

I don’t think any of us anticipated what we were getting ourselves into when we chose criminal law as our calling, and I don’t know how many of us would have continued forward had we known what awaited. Not because we don’t believe in what we do and the fundamental right of every human being to a vigorous defense when charged with a crime, regardless of the crime. But because too often the work we do is not appreciated and often criticized. Like my friend who was vilified by his client’s family after doing everything he could do for his client. I didn’t write this piece in the hope that regular folks would feel sympathy for criminal lawyers. Frankly, we don’t expect it. I wrote it for my friend and my colleagues and for myself as a reminder that if we have done everything that could be done for our client, if we have truly fought for them, if we left it all out on the field, we have carried the burden required of us. We don’t have to carry the burden of the client’s unrealistic expectations or disappointment.

Devil’s Advocate: How Can You Defend Those People

The most common question asked of a criminal defense lawyer is, “How can you defend those people?” Sure, we’re popular at cocktail parties because our stories are much more interesting than any a tax lawyer might tell about complicated tax shelters or IRS audits. This is because most people, in the dark part of their hearts, are vicarious spectators to the seedy underbelly of life, hungry for the gory details of the latest sensational murder or other violent crime. Like spectators at the colosseum, they like the blood sport but not the players. They like the stories but polite society is mostly offended by the very existence of criminal defense lawyers whom they see as no different than the clients they represent. The quick and easy answer to the question is that we defend those people because the constitution says all of us are entitled to due process if the government charges us with a crime. That guarantee can only be manifested through the legal representation provided by criminal defense lawyers.

Though our very existence may be grotesque to some, we become a necessary evil, a life line to the accused. THE lifeline when the son or daughter of the prim and proper gets caught with drugs or is accused of raping their date or committing murder. That’s different, they say, because they’re not one of those people and it was just a mistake and the world would be a lesser place if Austin or Buffy get convicted for committing a crime. I’ll let you self-entitled folks in on a little secret, you know who you are, the ones who look down their noses at us until you need us, though we find your duplicitous self-righteousness offensive and annoying because you think you and yours are more special and deserving than those people because you had more advantages and opportunities than those people, we’ll gladly represent Austin and Buffy, not because of who they are, but because that is the oath we took as lawyers. Because they, like those people, are entitled to a defense.

What I am about to tell you may shock you. Are you ready? Are you sitting down? Ok, here it goes: We are not our clients. That’s right. We don’t encourage murder, rape, robbery or any other crime. Well, some lawyers who grew up in the ‘60’s support smoking weed, but as a general proposition we don’t encourage criminal activity. We don’t have a special affection for people charged with murder or molesting their children or beating their wives or selling dope. We don’t have them over for dinner or ask them to babysit our kids. Many of our clients are overgrown children who have never accepted responsibility for themselves and blame everyone but themselves for their troubles. Some are mean. Many are angry at life. Some are truly evil but these are the minority. Many are lost souls who as children were mercilessly abused physically or sexually or both. Most suffer from some form of mental illness, drug addiction or both. And because of this they are unable to function well in society. We are not our clients but we defend them because there is something in our psyche that compels us, a desire to try to fix what’s broken and so many of the people we represent are broken.

I have another shocker for you. We don’t even – come in closer for this one – we don’t even like some of our clients. It’s true, we don’t. Some clients are just miserable human beings and awful to deal with, incapable of ever being satisfied with what you do for them. Lawyers who do appointed work – lawyers in private practice appointed by the courts to represent those who can’t afford to hire a lawyer – tend to experience more instances of conflict with their clients than hired lawyers. Why? Because the clients see them as part of the system. They don’t differentiate appointed lawyers from the prosecutors and the police. If the county is paying them then they must be part of “the system.” They don’t believe that a “real” lawyer would accept a case for the paltry amount the county pays and that those who do aren’t as good as the retained lawyers who do not take appointed work. Some even believe appointed lawyers are working with the State to convict them. Forget the twisted logic. Forget that to do so would violate every ethical obligation and the rules of professional conduct lawyers live by, not to mention their pride and personal commitment to the profession. This unfortunate thinking is born of ignorance and incubates daily in the jail and the holding tanks, proliferated by self-professed “jailhouse lawyers.” As a result, many appointed clients treat their appointed lawyers as if they were something stuck to the bottom of their shoe. Human nature being what it is, people tend to appreciate what they pay for and don’t appreciate what they get for free. Yet, despite being disparaged by their clients and often criticized and Monday-morning quarterbacked by colleagues who have never handled an appointed case, they continue to work hard in the interests of their clients. Frankly, whether one is retained or appointed, criminal defense work is too often like a bad customer service job where everyone is pissed at you but you are expected to resolve the complaint with grace and a smile.

Sounds pretty awful. Why would anyone want to do this job? Why do we really defend those people if we don’t even like some of them? Why do we defend criminals? The real answer that goes beyond the constitution? Because those people are human beings and it is our humanity that compels us to stand for them when nobody else will. Because when another human being looks at you and says, “please help me,” you can’t turn your back. Defending a human being accused of a crime carries with it a heavy responsibility and nobility. Because by protecting the least of us we protect all of us. Sometimes police get it wrong. Sometimes police do it wrong. Sometimes prosecutors grab hold of a case like a dog with a bone and ignore the fundamental weaknesses of it, the defendant’s rights be damned. The scariest circumstance is the innocent client where innocuous facts can be made to appear as clear evidence of guilt. Real life is not a Law and Order episode. Real life is not black and white, it’s many shades of gray and it’s messy and that is where our work lies. What we do is important. We don’t fight over money or contracts or who should have done what by a certain date. Because fighting for another human being’s life and liberty means something. For those people, it means everything.

 

To Plead or Not to Plead, That is the Question

Plea bargains are an important part of the criminal justice system. Without plea agreements the criminal justice system would grind to a halt and justice for crime victims and defendants alike would be put off interminably as each case would have to be tried. A “trial only” system would lead to greater injustice you creating the risks of loss or misplacement of evidence as police property rooms would be taxed beyond capacity, witnesses dying or memories fading over time and many other foreseeable and unforeseeable hazards. Plea bargains keep the criminal justice system moving, providing resolution to victims who want to move on and to criminal defendants who want to mitigate the damage by taking a deal rather than risking what a jury would give them at trial. For some defendants, taking a plea deal has nothing to do with guilt but is a means of getting out of jail sooner rather than later so they can get back to work and support their families or care for a sick parent or see the birth of a child. Oftentimes, for these defendants another conviction is just the cost of doing business because they are poor or because they have lengthy criminal histories. And sometimes, plea deals are the result of something more insidious.

In a recent article by on Slate.com (July 21, 2016), Leon Neyfakh recounted the story of Annie Dookhan, the Boston area crime lab chemist who over a decade filed false test results that compromised 24,000 criminal cases. In November 2013, Dookhan pled guilty to obstruction of justice, perjury and tampering with evidence and was sentenced to 3 to 5 years in prison. She was released in April 2016. Dookhan is one of the most prolific criminals in United States history and her punishment was only 3 to 5 years in prison.

The Supreme Judicial Court of Massachusetts held last Wednesday in a case involving a man convicted at trial based partly on Dookhan’s analysis – criminal conduct – that the evidence is tainted by her misconduct and attributable to the government. A spokesman for the Suffolk County District Attorney’s Office stated that the ruling would only cause a “minimal disruption” because the majority of the 7,500 cases Dookhan handled were resolved by plea bargains. Minimal disruption? I wonder if the spokesman for the Suffolk County DA’s office would feel his life was minimally disrupted if he were imprisoned on false evidence?

Let’s put a sharper focus on Dookhan’s criminal conduct. Over a ten year period, Dookhan falsified 2,400 results every year, 200 every month, 40 every week, 8 every day, 1 every hour. This woman committed a crime every working hour of every day for ten years, caused immeasurable suffering to thousands of criminal defendants and their families and her punishment was only 3 to 5 years in prison. How many people lost years of their lives in prison because of Dookhan’s crimes? Of all the accused murderers, rapists, drug dealers, robbers and burglars I have represented, I don’t believe any one of them committed 24,000 crimes but they all face a hell of a lot more time in prison than 3 to 5 years. Dookhan’s punishment spits in the face of justice and fairness. Her sentence reflects how little the prosecution cared about the effects on the defendants who suffered because of Dookhan. Regular folks don’t care about the criminally accused until they or someone they love becomes one. Then it’s a media event.

This leads us back to plea bargains. Plea bargains, without question, are necessary. When a defendant’s case has bad facts and bad evidence and you know he’s going to get crushed at trial, a reasonable plea bargain is in the client’s best interest. But prosecutors have all the power when it comes to plea bargains. They determine what offers to make, if at all, and judges and defense attorneys are impotent in the process. Of course, the defense attorney can demand a trial and play a game of chicken with the prosecutor in an effort to get the prosecutor to make him the offer he wants but this game is not without risk when it’s not a good case for the defense.

Prosecutors all too often use “sweetheart” plea deals such as offering time-served or reducing a felony to a misdemeanor as leverage to get a conviction because they know the defendant will jump at the deal instead of doing the right thing and dismissing the case. The “today only” offer is one of those tools that puts the defendant and the defense attorney in the undesirable position of having to choose a “good” deal or risking a higher sentence by refusing the offer so the lawyer can do his job and properly investigate the case. More often than not, the defendant will take the deal because he doesn’t want to take the risk.

This was a favorite tactic of Harris County prosecutors until Devon Anderson instituted a policy that drug cases cannot be pled until after the lab results become available. This policy change came on the heels of a deluge of writs filed in cases where defendants took “today only” deals and the lab results came back finding no controlled substance weeks or months after the plea. Funny, and not in a “ha ha” sort of way, that the Harris County District Attorney’s Office didn’t make this change years before when the Houston Police Department crime lab had its own problems with faulty analyses and analysts. But I digress.

Plea-bargaining isn’t going away anytime soon and it shouldn’t. I have had many cases that I wished clients would take to trial but opted to plead because they were too afraid to take the risk. I have also had many cases where my client should have accepted the prosecutors plea offer but elected to go to trial instead and then wished they had taken the plea agreement after getting a lengthy sentence. It would be impossible for prosecutors and defense attorneys alike to try every case but, it should go without saying but here I am saying it because too many, not all, prosecutors, police officers and other cogs in the criminal justice wheel can’t seem to learn from recent history, that integrity is required in all phases of a criminal case. We have to have confidence when we advise our clients to accept a plea deal that the evidence – such as drug lab reports, latent print reports, firearms reports, police officer representations in offense reports, etc. – and representations made by the prosecutor are legitimate. Otherwise, the police officers, prosecutors, crime lab analysts are no better, no, worse, than the defendants they prosecute. And when those tasked with ensuring that justice is done do so little to punish one of their own, like Dookhan, they don’t get to wear the white hat.