It wasn’t recent, more like 10+ years ago, and almost certainly, given how often it happens, not actually the first time I walked a factually innocent client in front of a judge for a guilty plea.  But it’s the one I remember best.

Short version of the facts via the police report:  My client went to a car dealership and told them he was the soon-to-be-wealthy nephew of a prominent local.  In a few days, on his twenty first birthday, he was to inherit a few million, and he planned on deciding over the next few days which type of nice new car he should reward himself with.  None of this was true, my client was just as broke as the next guy.

But, the dealership lets him drive off in a new car, to test drive it over the weekend.  And he brought it back exactly when he was supposed to, not quite pristine, due to a minor fender bender while it was in his care, custody and control.  Of course, you can’t spit on a car without doing at least $500 in damage, and it’s about that time the dealer realizes: not only is my client not going to buy this or any other car, he can’t pay for the necessary repairs.

My client waited patiently while the police arrived and decided to arrest him for theft.  In this case, the value of the car being over $20,000 (but less than 100K), he was charged with third degree felony theft.  Although this was his first arrest for anything, ever, he had just moved into town in the last month, and couldn’t qualify for a get out of jail free personal bond.  (The local pretrial services office has a less-than-6-months-residency/no PR rule.)

I was appointed to represent this client while he was still in jail, and it didn’t take very long for even a baby lawyer like me to realize the state had a huge hole in their case: my client brought the car back.

It’s not the purpose of this post to discuss all the intricacies involved, but suffice it to say that Texas law defines theft as unlawfully appropriating property with intent to deprive; and bringing the car back goes a long way towards negating intent to deprive.  A more nuanced prosecutorial view might be that my client committed the state jail level offense of unauthorized use of a motor vehicle (operating the car without effective consent; consent not effective if induced by deception).

And the fairest thing for a prosecutor to do – motto: our job is not to convict but to seek justice – would be to realize that the week or two in the pokey my client had already spent waiting for a first court date was more than enough punishment for what was, essentially, teenage hijinks.  (Perhaps the salesman should be charged with felony stupidity for buying my client’s bullshit?)

So here’s the extremely common part of the story.  A defendant has done something “wrong”, has been arrested and can’t get out of jail, and his lawyer is required to communicate any offer from the prosecutor, no matter how unreasonable it might be.  In this case, the prosecutor offered probation, which was his quickest way out of jail.  He wanted to take it immediately and I managed to convince him that was not in his best long term interest.  The case was reset for another week, while I did more research, brought case law to the prosecutor, even re-approached the judge to revisit the “No” recommendation for personal bond.  All to no avail.

The week came and went, the prosecutor was unmoved (maybe there was a reduction in the term of probation; I don’t remember) and on the second setting, my client insisted on taking the plea.  After a presentence investigation, which required another week or so in jail, he was let out on probation.

I had begged him to let me set the case for trial; criminal defense lawyers dream of factual scenarios this good.  But when I dutifully explained the length of time he would wait to have that day in court, to test the state’s evidence beyond a reasonable doubt, and all that other constitutional nonsense, he balked.  (The answer would have been probably months, almost definitely less than a year; perhaps “only” a month if the State would agree to waive jury and have a bench trial.)

Plead to something you aren’t guilty of, just so you can get out of jail right now?  I would never do that, thinks most of the population.  Well, try a few days in jail, never mind a few weeks, before you are so certain.