I am not a lawyer or a law student; my work is in mathematics, but I like to learn about criminal law as a hobby. I have spent some time googling and searching to find an answer to my question but have found no results.

Here is what I am interested in knowing:

Suppose a public defender is assigned a criminal case — let's say the charges are gross misdemeanor or nonviolent felony — and there is quite literally no conceivable defense for the client. The prosecution has compelling evidence for all elements of the crime, action, and any required culpability. At this point, what do you do for your client?

My best guess would be to put heavy effort into plea bargaining, but this scenario is something that is hard for me to learn about in my hobbyist pursuits because it isn't very well documented. It seems like something you learn from experience, and could depend greatly on the individual attorney and their relationships with the prosecutors in the jurisdiction. The only thing I can find that relates to my question is information about the strategies of lawyers who defended notorious murderers who were overwhelmingly guilty. I would like the scope of my question to be something less serious and less complicated than that. In most of those cases, the defenses' main goal was to keep them out of a death penalty, and the trials were long and complicated. Also, to be thorough, please feel free to note / comment on any of the following in an answer:

  • You know there is practically no conceivable defense for your client; how does that change your efforts in plea bargaining?

  • Let's say the prosecutor won't budge - not a single plea offer. You know there is practically no conceivable defense for your client - what do you do when the case goes to trial?

  • At any point, is it a matter of ethics to make it clear to your client that there is no conceivable defense for their case and your primary service as their counsel will be to provide guidance through the confusing and complicated legal / court process and help make sure their rights to a fair trial are upheld?

  • Now suppose you are not necessarily a public defender but a private attorney for hire. Someone comes to you looking to hire you for counsel on the type of charges outlined above. There is little to no conceivable defense. Do you take the case? If so, do you tell them this before negotiating a price?

I understand my question is certainly subjective. The answer could vary greatly from case to case, dependent on countless variables. I do, however, still think it is constructive and on topic because it can be answered on a high level as to how to initially assess those variables and form a strategy. I am open to feedback for how to improve my question. Please edit tags as needed.

  • 3
    One option is for the client to plead guilty to the charge presented in court. If the client is willing to do that, there's no jury trial. I do not know what ethical considerations exist for a defense attorney advising a client to plead guilty, however. – phoog Jul 9 '18 at 18:28
  • 4
    @phoog It is not unethical for a criminal defense attorney to advise a client to plead guilty as charged if there are potential upsides to the client for doing so, which as I explain below, there usually are, so long as the client provides his or her informed consent. But, a U.S. defendant always has the right to go to trial, even if his lawyer advises against that and the lawyer has a responsibility to make that clear. – ohwilleke Jul 10 '18 at 2:32

The Plan For A Clearly Guilty Client Without Bargaining Power

This question underestimates how much of a criminal defense lawyer's work involves sentencing rather than a determination of guilt or innocence.

Suppose as the OP does that the prosecution can easily prove beyond a reasonable doubt that your client is guilty, you client has no plausible defenses, and the prosecutor won't budge on a plea.

As a criminal defense lawyer, you may well advise your client that there is no percentage in fighting guilt on the charges, and have your client plea guilty. This prevents the prosecutor from spelling out for many hours in excruciating detail exactly why your client is guilty and the harm the resulted from the crime, which could harden the judge in the sentencing phase. It also frees up a client's often scarce resources for legal work that is likely to be more fruitful and for things like paying fees associated with alternative sentencing programs and paying restitution.

It is an empirical fact that judges sentence criminal defendants who plea guilty, even in the absence of a plea bargain, less harshly on average, than criminal defendants who insist on going to trial. (When there is a plea bargain "sentences following convictions at trial are five times larger than sentences received by those who plead guilty".) Often the sentencing premium for going to trial is stunningly large to the point where it has been argued that it amounts to an unconstitutional burden imposed upon the right to a jury trial.

Then, you focus entirely on the sentencing phase of the case.

There's More Discretion In Sentencing Than Guilt Verdicts

Short of first degree murder and a handful of other crimes, there is almost always some discretion on the part of the judge regarding the sentence to be imposed, no matter how clearly guilt is established.

Often a judge has the power to sentence someone guilty of a minor felony to probation or a "boot camp" or "community corrections" or even a fine without incarceration, rather than a prison term. Often a judge has a wide range of possible lengths of incarceration (especially in misdemeanor cases and for very serious felonies).

Often the corrections department has considerable discretion over which facility to commit a client to and some are better than others. So paying attention to the facility assignment process also matters.

Where a defendant is facing both state and federal criminal charges, it sometimes makes sense when conviction on all charges is likely, to plea guilty immediately to the federal charges so that the defendant is already in federal prison before pleading guilty to or going to trial on the state charges, so that if the defendant is sentenced to serve time for the state and federal charges concurrently because they arose from the same incident, the time is spent in the more pleasant federal prison rather than the less pleasant state prison. (This is the case because violent crimes are overwhelmingly prosecuted under state law, while a large share of federal crimes are white collar or are for immigration and non-violent drug offenses. So, your fellow inmates tend to be less vicious in federal prison.) Not infrequently, state prosecutors will even drop state charges to conserve their scarce resources, if they know that the defendant is already facing a significant term of incarceration following a conviction on federal charges.

A criminal defense lawyer thus almost has something to argue at sentencing because there is almost never only one possible result of a sentencing hearing even if all of the facts are not in any dispute whatsoever. The judge's interpretation of what those facts should imply in terms of a sentence is always up for debate and argument.

What Do Lawyers Do In The Sentencing Phase?

As a criminal defense attorney in a case like this, your job is:

  • to present your client in the best light possible,

  • to locate witnesses who will testify that he has support in the community and that he is basically a good guy despite this particular lapse,

  • to marshal testimony that extended incarceration will be a hardship to someone dependent on him,

  • to have him sincerely apologize to the victim and try to do something immediately to make it up to the victim and to show regret and contrition,

  • to support him in not violating terms of pre-sentencing release if any, and

  • perhaps even to see if charges that might otherwise bring him into a recidivist sentencing regime can be sealed or vacated for any reason.

You present mitigating evidence regarding IQ or mental health conditions or prior military service or poverty or provocation that explain your client's conduct even if it doesn't excuse it.

You try to get the prosecutor to agree that a harsh sentence isn't necessary here, or even to support an alternative sentencing option. Prosecutors are frequently more sensitive to their win-loss record of securing convictions than to precisely how the people they convict are punished.

You scrutinize the pre-sentencing report for any inaccuracies and prepare to prove that they are inaccurate.

You litigate which category your client belongs in under the sentencing guidelines that apply, if any, which are often the subject of much less case law and hence for more room for interpretation.

For example, in a recent case handled by another lawyer in my office (I don't do criminal work myself, but have colleagues who do), the client's sentence was reduced by more than 95% from what the prosecution requested because they had meant to charge 300 counts of a municipal ordinance violation for which each day counted as a violation, but actually charged our client with only 2 counts of the municipal ordinance violation and the judge held the prosecution at sentencing to only a sentence based upon the offense actually charged in the relevant documents.

You prepare to explain to the appropriate people how maintaining community ties through visitation will reduce his odds of recidivism if he is located at a more favored correctional facility rather than a less favorable one.

You prepare to explain to the appropriate people that your client's survival would be a risk based upon the gangs present at a less favored correctional facility, or that he would be more likely to join a gang and thus commit more crimes upon release at a less favored correctional facility.

You get your client to be cooperative in paying any restitution he can afford to pay even before the court orders him to do so.

You find decent clothes for him to wear to his sentencing so he doesn't look like a thug and teach him what not to say at sentencing that would piss of the judge. Do his hair in a way that makes him look as vulnerable and inoffensive as possible. Cover his tattoos and remove his piercings as much as possible.

If your client is black, find a white or Asian-American relative or mentor or girlfriend or supporter to stand at his side and support him in court. This shouldn't matter but it almost always does.

If your client doesn't speak English well, find a relative or mentor or girlfriend or supporter to testify in fluent English in support of leniency and make sure that there is an interpreter lined up for his sentencing hearing.

You remind the judge of other more serious cases involving the same offense to which your client's can be compared, or of the sentences imposed on more culpable co-defendants to suggest that your client's sentence should be less severe.

You downplay the harm caused and emphasize your client's future prospects.

You help the judge relate to your client anyway that you can. You may need to research the judge's background and history of sentencing decisions to find out what this particular judge does or does not find persuasive in sentencing hearings.

Sentencing Is As Important As The Charge Of Conviction

A criminal defense attorney who presents a solid sentencing case may leave the client who receives a near minimal sentence on that charge with a lighter sentence than one who plea bargains to a lesser charge but then botches the sentencing phase resulting in the client getting near maximal sentence on the lesser charge.

Consider, for example, the attorney who represented Brock Turner, a Stanford student convicted of raping an unconscious woman in public in the face of overwhelming evidence against him who none the less, was sentenced to just six months of incarceration (reduced further for good behavior in jail). Another attorney could have plea bargained down to simple assault and still left his client with a more harsh sentence. Turner's attorney was so effective in securing a lenient sentence that the sentencing judge was recalled for the first time in 87 years in California for his leniency.


So, the notion that a good criminal defense attorney's job is over when the client has no chance of establishing his innocence is just fundamentally wrong. Roughly 90% of criminal defendants will plead guilty and half of the rest will be convicted. The vast majority of these criminal defendants are guilty of something, even if not the exact offense of conviction.

The criminal defense attorneys' job isn't mostly about getting acquittals for clients who are the vast majority of the time guilty of something, it is about securing a non-excessive sentence for the conduct committed.

Even in the majority of cases that don't conclude with a plea bargain, most of the job is about the sentencing phase, where there is almost always more judicial discretion, and not about the guilt-innocence phase of the case.

  • 1
    I’m not quite sure I agree my question underestimates the work in sentencing since I asked ‘at this point what do you do for your client’ (sentencing is a valid answer) - but none the less great answer. I wish I could accept two answers! In fact - the chess move of avoiding a lengthy trial for the effect it may have during sentencing is the kind of stuff I was interested in hearing about. – Prince M Jul 10 '18 at 3:25
  • Regarding the empirical fact mentioned in paragraph 3, is there any way to review data for this fact online? I see you have a degree in math as well! – Prince M Jul 10 '18 at 3:29
  • 1
    Nice answer. Do you have a quote for Often the sentencing premium for going to trial is stunningly large to the point where it has been argued that it amounts to an unconstitutional burden imposed upon the right to a jury trial. ???? – Mindwin Jul 10 '18 at 18:17
  • 4
    @Mindwin: See for example "Innocence is Irrelevant" (Atlantic Monthly, September 2017). "... Graham faced two radically different punishments for the same crime: either be put away for life or spend minimal time behind bars in exchange for a guilty plea. In 2010, the Supreme Court ruled, in Graham v. Florida, that the punishment Graham faced at trial was so cruel and unusual as to be unconstitutional" (although that's not quite the same thing I guess) – Quuxplusone Jul 10 '18 at 19:39
  • 2
    FWIW, lengthy citations were added but then lost in an Internet connection glitch. I may provide them again when I'm less demoralized. – ohwilleke Jul 11 '18 at 0:15

I think the question misconceives the nature of defense work. Even in what looks like a slam-dunk case for the state, it is never the defense's job to prove that the defendant is innocent; it is always the state's job to prove that the defendant is guilty.

Even if a professional baseball player charges the mound during a game and bludgeons the pitcher with a bat, with 40,000 eyewitnesses watching and dozens of HD cameras filming, there is always a defense, which is that the state hasn't proved every element of every offense beyond a reasonable doubt.

Of course, the lawyer has an obligation to counsel a client (or potential client) on the strengths and weaknesses of whatever defenses are available, and if the best strategy is really going to come down to "40,000 people and 100 cameras are lying," the lawyer would probably commit malpractice by recommending that the defendant go to trial rather than work toward a reasonable plea bargain.

Practically speaking, there's just about always going to be a plea bargain available. Preparing for and putting on an actual trial is a lot of work, even in a relatively minor case, and there are a million ways it can blow up in your face. Both sides have strong incentives to reach an agreement that avoids the worst-case scenario, and that's why the share of cases that actually go to trial is approaching 1 percent.

But in the rare case where the state refuses to deal, the defense attorney's job is to force the state to do its job at trial and question whether the state's case amounts to proof beyond a reasonable doubt. Are the state's witnesses being honest? Are they biased? How do they know what they say they know? Was the state's evidence obtained in violation of the defendant's rights? Is it actually admissible? Even accepting all the evidence the state has put forward, is there really absolutely no way any reasonable person on Earth could doubt the defendant's guilt?

And all that's before the defense even puts on its own case. Did the defendant have the required state of mind to commit whatever offense he's been charged with? Might he have been criminally insane? Might he have been justified? Might he have been under duress? Has the state violated the defendant's speedy trial rights? Does any prosecutorial misconduct justify a dismissal of the charges?

It is theoretically possible that a case could be so simple and straightforward that there is no conceivable defense, but in practice, any defense lawyer who concludes that there is no conceivable defense does not understand how to do his job.

  • 9
    "It is theoretically possible that a case could be so simple and straightforward that there is no conceivable defense," and of course the many people who have been convicted in such seemingly open and shut cases, only to be later exonerated is further evidence at the challenge and responsibility of the defense lawyers. – whatsisname Jul 9 '18 at 23:00
  • 1
    @bdb484 This answer demonstrates what a criminal defense attorney can do in the guilty-innocence determination phase in the face of a clearly guilty client, but frequently fighting a hopeless case as hard as possible is ill advised. Usually, criminal defense attorneys in cases like these put their resources and efforts where they are most likely to make a difference, which is in the sentencing phase of the case. A fight the conviction at any cost approach only makes sense when the best case scenario at sentencing is very bleak (e.g. life imprisonment or a very long term of years sentence). – ohwilleke Jul 10 '18 at 2:12
  • Oh, yes. I didn't even think to touch on sentencing. +1 for the answer below. – bdb484 Jul 10 '18 at 2:15
  • I think in some common law jurisdictions when the defense counsel believes the prosecution case to be overwhelming, but the client instructs counsel to defend a not guilty plea, bar rules/ethics require counsel to withdraw from the case (so the court has to appoint a new defender). Does this rule exist in the United States, and is it purely theoretical? – Qsigma Jul 11 '18 at 15:57
  • We have a procedure by which defense counsel can withdraw if there are no non-frivolous grounds for appeal, but I don't know of any grounds for withdrawing before trial based on the lawyer's assessment of the strength of the case. – bdb484 Jul 11 '18 at 16:04

A defense is always possible because no one really knows what the defendant was thinking at the time. Possible defenses would therefore always include: mental insanity, automatism, intoxication, mistake of fact, self defense, necessity / lesser harm and even lawful capacity of office. I've even known of places where provocation was used as a murder defense.

Here's some possible defenses for the baseball bat murder described in the previous post: The batter took a substance or went insane and wasn't in control of his actions. Another one could be he feared the ball was actually a bomb and what he did was self defense and he was necessitated to act as it was less harmful than if the bomb had exploded. Yet another could be he was provoked and yes he might have committed manslaughter but there was no intent to murder.

  • 2
    A young guy I know was popped on a felony weapon possession charge, and he had the public defender. They offered him a deal, but he didn't want to be a felon and sort of "freaked out" on them. This raised questions about his fitness to stand trial, so they sent him away to some facility for evaluation. He spent a few months there, and after many reports and status hearings, he was found to be unfit at the time. Long story short, the state moved to "nolle pros" and he wasn't convicted, even though he was caught red-handed. – dandavis Jul 12 '18 at 9:31

As one of my law-school professors put it, my role as a defense lawyer is "to minimize my client's involvement with the criminal justice system". Couple that with the maxim (I can't find a source for this, but I think it's from F. Lee Bailey) "never plead guilty; you never know, the witnesses might die". There is never a case that can't possibly be won. You use the uncertainty about a trial as leverage to try to get a better deal from the prosecutor.

  • 2
    "never plead guilty" - that is usually bad advice if you are guilty. In England and Wales there is an automatic 1/3 off the sentence for pleading guilty at the earliest opportunity; I am pretty sure most jurisdictions have similar incentives to avoid clogging up the legal system. – Martin Bonner supports Monica Jul 10 '18 at 15:57
  • 1
    The United States has no equivalent incentive. – bdb484 Jul 10 '18 at 16:25
  • 4
    @MartinBonner -- I'll go farther than the previous comment: in the United States you have a right to a jury trial in a criminal case. Punishing people for exercising that right violates the Constitution. (and, yes, I probably should have mention that I was talking about practice in the US) – PJB Jul 10 '18 at 16:52
  • 4
    @bdb484 Plea-bargains are essentially the equivalent in the US. – Martin Bonner supports Monica Jul 10 '18 at 16:58
  • 1
    I suppose they're the closest thing, but I wouldn't call it equivalent. They don't really come with that entitlement to a reduced sentence, and often enough, a judge elects to impose the maximum despite the plea bargain. – bdb484 Jul 10 '18 at 17:01

Your Answer

