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June 5, 2011

Would John Edwards be wise to consider a guilty plea even if he is truly innocent?

There is, of course, much to say about the rise and fall, and now the federal indictment, of John Edwards.  But, as is my tendency, my review of the indictment (linked here) has me eager to discuss sentencing realities and plea practices/pressures.  And, as the title of this post spotlights, I wonder if my wise and shrewd readers think a wise and shrewd federal defense attorney might advise Edwards that he'd be wise and shrewd to consider a plea deal even if Edwards considers himself, and truly is, innocent of the federal charges he is now facing.  

Here's the basis and basics of my thinking: if the Edwards defense team could possibly work out some deal that requires only a plea to some misdemeanor count, the direct and collateral consequences of such a conviction (which would likely result in probation and preservation of Edwards' ability to practice law) could well be far less personally and professionally damaging than the direct and collateral consequences Edwards could face even if a jury were to find him not guilty at trial.  The calculation gets more challenging if prosecutors demand that Edwards plead guilty to a felony (because of the possible collateral consequence of Edwards losing his law license), though again the potential to control and mitigate bad consequences through a plea might still make such a deal more appealing than the always uncertain outcome and the certain costs of a full-blown trial.

My thinking here is influenced somewhat by the reality that there seems to be little dispute that Edwards sought actively to cover up his affair and encouraged others to lie and otherwise foster this cover-up. Whether his cover-up amounts to a federal crime, especially given hard questions concerning Edwards' mental state, make this case quite interesting legally.  But this interesting legal reality does not really diminish the serious and significant economic, professional and personal costs that will flow from a full-blown trial in which Edwards' misdeeds and his cover-up actions get a lot more attention than the legal specifics.  

Put differently, any high-profile (and economically costly) trial, seems sure to result in Edwards being (further) convicted in the court of public opinion no matter formal legal verdict the federal jury returns.  This is why I ask here for opinions on the notion that, even if Edwards considers himself and truly is innocent of the federal charges he is now facing, he would would wise to consider the possibility of working out a plea deal?

UPDATE:  I have just seen this notable and fascinating new piece from the Raleigh News & Observer which suggests a plea deal along the lines I suggest was on the table for Edwards just before the indictment came down, but that the feds' demand for prison time prevented the deal from being sealed.  Here are the details:

Just before John Edwards was indicted Friday, prosecutors made a final offer: They would accept his guilty plea to three misdemeanor campaign finance law violations in the $925,000 cover-up of his affair.

With the deal, the former Democratic vice-presidential nominee would avoid a felony conviction -- and almost certainly keep the law license that had made him wealthy.  But there was a catch.  The government wanted to dictate a sentence that would result in up to six months of prison for Edwards, even with the plea to lesser charges.

Edwards and his lawyers were concerned.  They wanted the ability to at least argue to a judge for alternatives, such as a halfway house, weekend releases, home arrest or some arrangement that would allow Edwards to be with his school-age children.  He is a single parent after the death of his wife, Elizabeth, in December.

But the way the possible plea deal was structured, the Edwards lawyers believed they would be muzzled from advocating at all about Edwards' confinement before a judge, according to multiple people who were involved in the negotiations.  Those sources described the plea negotiations in detail on a condition of anonymity because the case is ongoing.

It was the last significant issue to be resolved for a plea.  If Edwards didn't agree, he would be indicted on multiple felony charges.  Edwards, 57, understood the risk. As a trial lawyer, he had sometimes spurned offers of settlements to take his chances with a jury, often winning big judgments.  Would he do that again? The clock was ticking....

The main negotiators were Edwards' lawyer Gregory Craig and Jack Smith, chief of the Public Integrity Section.  Both are based in Washington.  They were looking to resolve the case short of a costly and uncertain trial.  For much of the talks, the government's offer in any plea deal would have required that Edwards admit to at least one felony.

Under a felony plea, the deal would have included a sizable fine but maybe or maybe not prison time. Edwards refused.  A felony would likely have ended his right to practice law, and Edwards doesn't believe that he committed a felony, according to people familiar with his views on the matter.  Edwards has declined interview requests.

His team had shown defiance, too.  As the case was under review behind the scenes in recent months, defense experts had been offering their views to prosecutors that what happened in the Edwards matter wasn't against the law, even if donors had given money to the mistress knowing that it was, in part, to keep the campaign going. One such meeting was on April 20 in Washington....

Edwards and his legal team gathered at his estate in Orange County into the late hours Thursday, connected on conference calls to prosecutors in Washington.  Edwards' children were at the home, and he occasionally left the meeting to speak with them.  But the tone was businesslike as the discussions and phone calls went past midnight.

What had started as a discussion of a felony with the possibility of no jail time had become a deal for misdemeanors but with more certainty of prison. That new twist came up relatively late in the talks.  But as Thursday turned into Friday, Edwards could not agree to silence his lawyers from making arguments to a judge about confinement.

The sides agreed to talk again Friday morning, as a grand jury in Greensboro was prepared to act on an indictment.  The failure to reach a plea, people who were involved said, wasn't certain until a few minutes before the indictment was returned by the grand jury about 9:30 a.m. Friday.

Edwards, just as he had in cases for his clients, would not accept a deal. For now, he would gamble on motions to a judge to dismiss the charges.  And, if necessary, a jury.

I find it remarkable (but not at all surprising) that the feds in this case apparently were eager to mandate on Edward the punishment of serious collateral consequences from a felony conviction or the threat of jail time and the consequent disruption to the Edwards family.  So much for the notion that neutral judges, and not partisan prosecutors, should decide on an appropriate sentence.  In this case (as in so many others) prosecutorial charging and bargaining choices are driven by prosecutorial interest and power to demand a certain type of sentence.

I am anything but a fan of Edwards or defender of his unseemly behavior.  But, after learning of these plea negotiation details, I am now hoping that Edwards might try to use his skills as an advocate and lawyer to turn the tables on the feds here and put their prosecutorial charging and bargaining choices on trial in the weeks and months ahead.

June 5, 2011 at 02:09 PM | Permalink

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Definitely if innocent, and even if a little guilty, he should do the exact opposite of a plea deal. An example of a "little guilty" would a violation of paper work, self-criticism, and all lawyer gotchas, any malum prohibitum. These mala prohibita are themselves crimes, designed to generate lawyer make work sinecures, and to rip off the taxpayer. Most are regulatory and have not been enacted by any representative of the txpaywer, but by the representative of the hierarchy of the criminal cult enterprise that is the lawyer profession. They have no constitutional validity, no matter what any Supreme Court finds. The Justices are at the top of this hierarchy, and will look out only for its interests, not matter how adverse the ruling to the public safety.

The Supremacy has done this on a smaller scale. It has offered the prosecutor a plea deal itself, to avoid all out personal destruction in exchange for going away or for trivial money fines that would not be recorded as serious violations. It has never failed. Some adverse lawyers could not believe the offer. They are no longer in their legal specialty, nor in the state, nor practicing law at all.

Edwards is morally disgusting for what he did to the medical practice of his state. He is a disgusting Communist redistributionist. He outlines the disgusting tactics he used in his book, Four Trials. Yet, Edwards should begin a scorched policy, and a suicide lawyering campaign. Start by demanding all out e-discovery from all adversaries, including the judge, the prosecutor, the police, all investigative bodies. During the case, parse every utterance. Any questionable one should get reported to the professional standards office of the adversary. Make sure they rare subjected to dozens of investigations on diverse charges. This tactic is cost free, and legally immune if kept confidential. All subsequent charges by the adversary can now be claimed to retaliatory, and subject to exemplary damages in the civil suit that must come simultaneous with the trial. The adversary may have the unfair protection of the litigation privilege and virtual legal immunity in abuse of process litigation. However, he is very much subject to judge desire to maintain order and to criminal contempt. So any delay or reluctance to produce material should be reported to the judge with a motion to declare a mistrial, with all expenses to the assets of the adversary, even prison time. Any utterance which is a false fact will qualify the adversary for judicial discipline.

This decision is a duty to the nation, which has highly privileged Edwards.

Posted by: Supremacy Claus | Jun 5, 2011 3:04:56 PM

Doug raises a very interesting question, about which there is plenty to say. For now, I will say only a little.

If I were his lawyer, I would try to map out for him the advantages and disadvantages of all the alternatives, including pleading guilty to a misdemeanor (if the prosecution would go along, which I seriously doubt). I would also, of course, explain what I thought were the weaknesses of the government's case, and the prospects for beating it.

If Edwards decided that he wanted to plead guilty when in fact he is not guilty, I would then explain to him that he had that option, but that I would be unable to represent him any further. He would have to get another lawyer.

A courtroom is not a place for lying. I wouldn't tell a tribunal that a litigant was innocent when he was guilty, and I wouldn't tell it that he was guilty when he was innocent.

I never did and I'm not going to start. Neither should Gregory Craig.

Posted by: Bill Otis | Jun 5, 2011 4:36:26 PM

"If Edwards decided that he wanted to plead guilty when in fact he is not guilty, I would then explain to him that he had that option, but that I would be unable to represent him any further. He would have to get another lawyer.

A courtroom is not a place for lying. I wouldn't tell a tribunal that a litigant was innocent when he was guilty, and I wouldn't tell it that he was guilty when he was innocent."

Isn't that what nolo contendere pleas are for? Basically pleading to an offense without admitting guilt?

Posted by: The Death Penalty Sucks. | Jun 5, 2011 4:47:43 PM

TDPS --

There is zero chance the government would settle this case for a nolo plea to a misdemeanor.

Posted by: Bill Otis | Jun 5, 2011 4:54:21 PM

"They wanted the ability to at least argue to a judge for alternatives, such as a halfway house, weekend releases, home arrest or some arrangement that would allow Edwards to be with his school-age children."

This has to be a joke. It was a big part of the coverup that Edwards DENIED HIS OWN DAUGHTER. He only even acknowledged her after it was clear the lid was about to come off.

It's hard to believe anyone would be naive enough to think that Edwards wanted to avoid jail to be with his kids. The reason he wants to avoid jail is that he thinks he's too high-and-mighty for jail.

He skated by on deceit and dishonesty for years, and now he wants to do more of it. Old habits are hard to break.

Posted by: Bill Otis | Jun 5, 2011 6:05:15 PM

"If I were his lawyer"

LOL. That is too much of a stretch to contemplate. If Bill were in any way involved with this case you can bet the farm it would not be as a defense lawyer (see previous thread on "House arrest(!?!?!)" for his words on that).

"He skated by on deceit and dishonesty for years, and now he wants to do more of it. Old habits are hard to break.

LOL again. Does that sound like a statement made by someone with a real interest in a defense position?

To borrow from Professor Berman "I am anything but a fan of Edwards or defender of his unseemly behavior." In addition, I am also "hoping that Edwards might try to use his skills as an advocate and lawyer to turn the tables on the feds here and put their prosecutorial charging and bargaining choices on trial in the weeks and months ahead."

Oh, and BTW Bill could this be yet another example of "career building" by prosecutors looking for a little "flash to pad their resume'? There is nothing like a conviction in a high profile political case is there?

Posted by: Thomas | Jun 5, 2011 6:40:32 PM

I would appreciate hearing from Bill about the actual management of the celebrity case inside the DOJ, under various scenarios.

1) The case is not frivolous but seems petty, with very little harm shown (Martha Stewart, John Edwards). The official is average in skill or below. He needs it for career advancement. He will not let it go, nor offer any favorable plea deal. He is an attention seeking publicity chaser.

2) The case is against a mass murderer, with world news coverage. The mass murderer has the ability to kill the lawyers involved at his signal (Al Qaeda). The route the children of the lawyers take to school is mapped in an anonymous note sent to the department.

3) The case is valid, with plenty of physical evidence and recordings against an organized crime kingpin. He is not threatening to hurt the lawyers, but his lawyer is putting them on trial during the criminal trial, and filing civil suits against them personally. The defense lawyer has recordings of various ethnic slurs, and racist remarks made by the agents, perhaps evidence of animus. The legal fees to the Division are going rapidly into 7 numbers.

Posted by: Supremacy Claus | Jun 5, 2011 7:26:53 PM

Edwards makes John Kerry seem likable. Ugh. That said, this prosecution seems a little out there. If the government wants to make this illegal, it should just say that all money spent for the benefit of a candidate for office simply has to be run through his campaign. Instead it sets a trap. These were payments to Rielle Hunter, not John Edwards.

But I don't feel sorry for this jerk who resorted to the courts to ruin the lives of doctors with junk science. Karma is a hard teacher, isn't it John?

Posted by: federalist | Jun 5, 2011 9:11:26 PM

Our Justice System is a joke, and not a very good one at that!

Posted by: albeed | Jun 5, 2011 9:57:06 PM

federalist --

Edwards' behavior is at the minimum an arguable violation of the campaign finance laws. If DOJ takes a pass on indicting Edwards, it will be accused of giving big shots, especially politically connected big shots, a break ordinary people very likely wouldn't get. On the other hand, if it indicts him, it subjects itself to the criticism you outline (and, as you know, other fair-minded people share). So it's in a no-win situation.

SC --

I think your three scenarios pretty much answer themselves. It's an example of how you can get a predetermined answer by building the hypothetical as you want.

I'll just say that a case like this is not handled in DOJ by just one person. There had to have been several, all at a high level of both the career lawyers (which is by far most of the staff at the Department) and the political appointees.

It is true that DOJ has some drones (as do PD offices). But most of the people I encountered were pretty good lawyers, and some were downright brilliant.

albeed --

It is true that the justice system sometimes produces appalling results (as I have fully agreed today on the thread about the double vehicular homicide without a day of jail time -- meeting the request of the benighted defense lawyer).

But you're going overboard by saying it's a joke. What else would you recommend for dealing with Timothy McVeigh? That a mob lynch him?

Every human institution reflects the frailties of those who make it and operate within its bounds. That's just the way life is constructed.

Posted by: Bill Otis | Jun 5, 2011 10:27:51 PM

"If Bill were in any way involved with this case you can bet the farm it would not be as a defense lawyer."

If I were going to live for another 500 years, my life would be too short to spend two minutes helping out someone like John Edwards.

There are people in this world who are not millionaire plaitiffs' lawyers, who are not political big shots, who do not live a double life, and who do not deny their own children, who could use my help. My priorities would not include Mr. Edwards.

Posted by: Bill Otis | Jun 5, 2011 11:24:26 PM

"But you're going overboard by saying it's a joke"

No, he is not. In far too many cases, high profiles cases like McVeigh notwithstanding, he is right on the money. It is the low profile cases against those who do not have the resources to fight where you will see the most egregious prosecutorial conduct or perhaps misconduct. Low profile, out of the headlines and no one cares except maybe for the defendant and his/her family.

"But most of the people I encountered were pretty good lawyers, and some were downright brilliant."

Maybe so back in your day. Bill mischaracterized one of my comments in a previous thread as intending to display insight. It wasn't but here is one that may be. Bill, by his own statement, "now that I'm around 60 and 12 years removed from the US Attorney's Office", has been "out of the loop" so to speak for twelve years. Most people looking back on a career tend to see things as they wanted them to be rather than as they really were. Looking back through rose colored glasses if you will.

Bill's statement; "A courtroom is not a place for lying. I wouldn't tell a tribunal that a litigant was innocent when he was guilty, and I wouldn't tell it that he was guilty when he was innocent, I never did and I'm not going to start" is admirable and perhaps that is the way Bill remembers it and the way he did his job. I have no reason to doubt Bill's veracity, after all he is a lawyer right? However, if Bill really believes that is the case today, the rose-colored glasses are firmly in place.

Much like the industry that I worked in for 46 years, the justice department that Bill worked in has changed. I have forgotten more than newcomers to the business will ever know. Naturally so because the way we did things and the technology of 40 years ago has been replaced. Not always for the better but replaced non the less. Same with the justice department. Things have changed and not always for the best. It has become far too easy for prosecutors to stretch things to the limit and with absolute immunity, what is the downside? The system is, as Albeed describes, is a joke in far too many cases and the pressure to win must be horrendous for prosecutors to try to pull some of the stunts that they are caught at time and again. Probably even more so at the federal level. Set up a Google alert for "prosecutorial misconduct" if you are a doubter.

Posted by: Thomas | Jun 5, 2011 11:36:16 PM

"If I were going to live for another 500 years, my life would be too short to spend two minutes helping out someone like John Edwards."

Hey, for the record, see comment #2 above, you were the one saying what you would do "if" you were his lawyer. In my view that makes commentary on the complete absurdity of such a possibility much less your ability to present a case for the defense fair game.

Posted by: Thomas | Jun 5, 2011 11:41:03 PM

Interesting comment "I wouldn't tell a tribunal that a litigant was innocent when he was guilty, and I wouldn't tell it that he was guilty when he was innocent."

Nice thought, but in reality, pleading the opposite of true guilt or true innocence happens all the live long day in courts everywhere in this country.

And, yes, in terms of nolo, that is true: such a plea is very seldom accepted in a deal by prosecutors.

Let's keep it real.....

Posted by: anonymous | Jun 6, 2011 2:25:24 AM

Good Information... thank you for the information.

Posted by: California Lemon Law | Jun 6, 2011 2:39:12 AM

Take a deal. Even if innocent, you can't win in a federal court. Look at the statistics. At a minimum they will get him on conspiracy.

On another note, they may as well just shut down the Office of the Pardon Attorney, or at least eliminate the option to petition for a Commutation of Sentence. The recent blanket denials by the Obama Administration prove there is no such thing as a fair and full review in that office. Why continue to pay the staff? Why pretend to have Executive Clemency?

Posted by: 114 | Jun 6, 2011 6:19:31 AM

anonymous --

"...in reality, pleading the opposite of true guilt or true innocence happens all the live long day in courts everywhere in this country."

I never did it. Did you? In what case?

I am not aware of any theory of honest and straightforward living under which you can get up in court and lie to the judge. Indeed, some of us were taught by our parents that you don't lie, period.

Posted by: Bill Otis | Jun 6, 2011 9:14:38 AM

"I am not aware of any theory of honest and straightforward living under which you can get up in court and lie to the judge."

That is because there is no such theory. However, it happens and it is not only about prosecutors lying to a judge. It is more about them lying to anyone else to insure a conviction. Good example in WJS, http://blogs.wsj.com/law/2009/07/20/georgia-on-lbs-mind-lying-prosecutor-sarcastic-faced-lawyer/, regarding an AUSA involved in a case in Columbus Ga. An AUSA who, BTW, is now trying to be a defense attorney. Indeed, some of us were taught by our parents that you don't lie, period.

"Indeed, some of us were taught by our parents that you don't lie, period."

Indeed, we were Bill but not all of your fellow prosecutors are the saint that you are.


And to all fellow veterans on this anniversary of D-Day.......Thank you!

Posted by: Thomas | Jun 6, 2011 10:58:15 AM

Bill Otis--

Although you may never have prosecuted anyone whom you believed to be innocent, this discussion is really about the opposite situation: Namely, where a defendant pleads guilty for tactical reasons, even though he is not convinced he broke any law. Can you be sure that no defendant ever did that in your cases?

The Edwards situation is a good example, because the raw facts are undisputed. The question is whether the funds that changed hands counted as “campaign contributions.” Practically everyone agrees that the government is relying on a novel interpretation of the statute that hasn’t been tested before. Regardless of what they say in public, neither side can really be sure how this case will turn out.

For the right deal (one that keeps him out of prison, and in possession of his law license), I can well imagine that it would be in Edwards’ best interest to plead guilty while, at the same time, believing he had committed no crime.

Posted by: Marc Shepherd | Jun 6, 2011 11:53:22 AM

Mr. Otis,

I personally have not, but as in politics, our courtrooms are full of offers,, deals and empty promises, as most of the players involved know intimately. Were that it was simple as you say, but what about prosecutors and defense attorneys conspire to dispense with a case, and advise the defendant accordingly? Fib? Imply something different? Withold complete information from the defendant? Horrors - lie? If you think this happens at the expense of the powerful, you'd be wrong. It's the people on the bottom who get hit hardest, and do unnecessary time.

In fact, somewhere in the vicinity of 85% of all criminal cases end in a plea deal, and often innocent people (many without good lawyers willing to fight, and with time and resources to fight) are forced to plea guilty.

There are mountains of these cases, but for an introduction try to see the excellent film American Violet and read Amy Bach's excellent book Ordinary Injustice.


Posted by: anonymous | Jun 6, 2011 11:53:48 AM

"...not all of your fellow prosecutors are the saint that you are."

I am no saint and never implied that I am, contrary to the usual snark. But I did not lie in court, period.

Being truthful is, I would think, a necessary but hardly a sufficient condition for sainthood.

Posted by: Bill Otis | Jun 6, 2011 12:09:14 PM

"But I did not lie in court, period."

Admirable. Spread it around.

Posted by: Thomas | Jun 6, 2011 12:34:34 PM

Marc --

"...this discussion is really about the opposite situation: Namely, where a defendant pleads guilty for tactical reasons, even though he is not convinced he broke any law. Can you be sure that no defendant ever did that in your cases?"

I had no interest in whether the defendant was subjectively "convinced" he broke no law. I have found that the capacity for self-justification among human beings, and criminal defendants in particular, is simply stupefying.

I was an AUSA, not a mind reader, so I can't be sure of what defendants were thinking. I was quite sure, however, that in each Rule 11 proceeding I ever attended, the judge asked, "And are you pleading guilty today because you are, in fact, guilty?" If the answer was other than "yes," the whole thing was off then and there and the case was set for trial.

I can also say that a defendant cannot enter a plea agreement without the prosecutor's assent, and I would not have, and never did, enter such an agreement unless the defendant was factually guilty. If he wanted to agree to plead guilty for "tactical" reasons, but in fact was not guilty, I would not have signed the agreement.

This thread is becoming surreal. Every prosecutors' office out there takes a pass on a boatload of easily provable cases every year, because the money isn't there to do every case the agents bring in. The idea that prosecutors have to go after innocent people to build up their stats is flat-out crazy. And the idea that they are so ammoral as to WANT to is a just a calumny, a fact that is not undermined by the occasional rotten apple like Nifong.

"Practically everyone agrees that the government is relying on a novel interpretation of the statute that hasn’t been tested before. Regardless of what they say in public, neither side can really be sure how this case will turn out."

Agreed.

"For the right deal (one that keeps him out of prison, and in possession of his law license), I can well imagine that it would be in Edwards’ best interest to plead guilty while, at the same time, believing he had committed no crime."

But the government has the burden of proof. It has to convince all 12 jurors BRD that what it has alleged is a crime at all, and that Edwards committed it. In other words, any doubt about whether the statute fits Edwards' behavior benefits Edwards EXCLUSIVELY.

As I say, the thread is becoming surreal. We have been hearing for years that the government routinely bludgeons the innocent but downtrodden to be shuffled off to jail to Support The Avarice Of The Ruling Class. Now that same theory has ballooned into a theory that the government is "bludgeoning" someone who virtually DEFINES the ruling class. Mr. Edwards is a multimillionaire who has employed the former White House Counsel. Sheesh.

What I think is going on here is just another segment of the "They're All Innocent" campaign: It doesn't matter if they admit they're guilty. They're innocent anyway. It's all just a show, and only unsophisticated bumpkins who don't know How The System Really Operates could think that, when a defendant says he's guilty, he's guilty.

I have a pretty good idea of how the system really works. When they say they're guilty, they're guilty. It's when they say they're innocent that you have to start watching your wallet.


Posted by: Bill Otis | Jun 6, 2011 1:03:42 PM

"When they say they're guilty, they're guilty"

Not always. That's the point.

Posted by: anonymous | Jun 6, 2011 3:58:10 PM

anonymous --

Q: If we can't trust the defendant's admission of guilt in open court, under oath, and with the assistance of counsel, what can we trust?

A: (By the Left) Nothing.

Q: Then since we can't really ever be sure, aren't we morally obligated to let them all go?

A: (By the Left) Bingo!!!

And that's what is ACTUALLY point.

Posted by: Bill Otis | Jun 6, 2011 5:04:09 PM

Great Information... Please post more... Thank you

Posted by: Georgia Lemon Law | Jun 9, 2011 6:21:29 AM

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