Today I ran into a situation where it wasn't clear initially as to how I should handle it.
This case involved 2 young men arrested and charged with drug dealing-associated crimes. My client is in custody. The other guy, the co-defendant (co-d), is on bond.
The co-d's attorney couldn't be in court today because he's on vacation. Today was the arraignment. I was asked to step up for the other attorney and arraign the co-d.
My client wanted to make a plea deal. The co-d's attorney wants to litigate. It's common to litigate cases when the client is on bond. And it's also common that guilty pleas are exchanged for probation at the first opportunity.
In order for my client to plead guilty he would have to swear to facts that implicate the co-d. That was the deal. Take it or leave it.
Time out: whenever a defendant pleads guilty, a factual basis of guilt is read into the record. After the prosecutor reads the factual basis (which is usually just the arrest report), the defense attorney (moi) stipulates to the facts. This means that I agree to them. Then based on those facts the judge finds the defendant guilty.
Having the defendant swear to those facts is very uncommon. I will explain why this was done in a minute.
Before I even told my client about the plea offer I realized how problematic this could be. Was my client hurting the co-d's case by swearing to facts that could establish his guilt? Was I screwing the other attorney by hurting his client's case?
If you wonder how swearing to the facts might be problematic for the co-d, here is an explanation. In the off-hand chance the co-d goes to trial, the State could subpoena my client to testify against him. And even if he didn't offer any new testimony, he would be forced to admit, again, the facts. These facts are pretty compelling evidence against both of them.
The reason the State made him swear to the facts was that it put my client under oath. This way if he tried to reverse himself at trial, he would face felony perjury charges.
I pulled a fellow defense attorney outside the courtroom and ran this by him. He knew right away the spot I was in. It was decided that I had to inform my client of the State's offer and explain what it could mean. Then it would be his decision to take it, or leave it.
I would have preferred to get a quick court date (short date) so that the co-d's attorney and I could appear together. The problem was that he asked me to continue his case for a little over a month. Damn. My client has already been locked up for 60 days. He's not a gang banger and has no one watching his back in the jail.
At the time this was happening, the co-d's attorney was in an airplane flying somewhere and not reachable. He also knew my client was likely going to plead out.
My analysis of the problem was to put my client's interest first. I owe him a professional and ethical duty. That duty, however, does not extend to his co-d or the co-d's attorney. My client wanted to cop-out for probation.
I also felt that I could not arraign the co-d because of a potential conflict. Conflicts are rarely ran into in criminal law, but this didn't feel right. Off the record I explained this conundrum to the judge. I requested that I not appear on the record on behalf of the co-d. I told the judge I would prefer if the co-d continued his own case.
And that's what happened. My client was arraigned, the co-d's arraignment was continued. Soon after I sat down with my client and laid out the entire offer. I explained how problems could arise in the future. I answered his questions.
Then he made the choice.