The Nation : When a Client Thinks He’s Being Sold Out: The Delicate Negotiations of Plea Bargains

Rep. Dan Rostenkowski (D-Ill.) is up and around again, talking about the holes in the prosecution’s case against him. Even though he has now been indicted, he looks consid erably more chipper than he did during the weeks when his then-lawyer Robert S. Bennett was deep in plea-bargain negotiations, trying unsuccessfully to prevent the U.S. attorney from going forward with the indictment. This is no surprise. Short of terminal disease, there are few life experiences more intensely awful for all parties concerned than the plea-bargain process.

Though not a lawyer, I have seen a few of these exercises up close. One of the most harrowing took place during the Iran-Contra affair, when my husband, Leonard Garment, represented former National Security Adviser Robert C. McFarlane. The prosecutor, Independent Counsel Lawrence E. Walsh, wanted McFarlane to plead guilty to felonies. Behind Walsh like a cheering section stood his staff, exhorting him to hold that line. On the other side was Garment, saying misdemeanors or nothing.

At some amorphous place in the middle of the mess stood the client, McFarlane himself--thinking he had done nothing criminal (which I, in my biased way, agreed with) but knowing if he went to trial, the prosecution would pile on enough felony counts to send him to the slammer for years in the event he lost.

Finally, around the edges of the conflict stood McFarlane’s friends, some of them fierce political fighters who urged him not to plead guilty to anything.

While the bargaining went back and forth--offers, counter-offers, waiting time--the real questions hovered just under the surface: Should a man in McFarlane’s position abandon principle, as the warrior-friends saw it, to escape a trial? Could he live with himself if he did? Was it so principled to put himself in debt for life trying to fight the government? Was he willing to sacrifice his family, which would suffer the pain of any imprisonment he had to endure?

Below these questions lurked still others: Who should he trust? Who was really trying to sell him out?

As luck would have it, our family was going through house renovations at the time, so we were living in the McFarlane’s basement. When serious floor-pacing went on, we could feel it. When lawyer and client got angry with each other, we could hear the upstairs as well as the downstairs muttering. When someone phoned McFarlane to urge him not to give an inch, we heard the phone ring and could sometimes guess that tomorrow was going to be a hard day. If the McFarlanes had been less decent people, they would have kicked us out. If McFarlane’s lawyer had been less stubborn, we would have left.

It turned out all right, sort of. The final outcome was a plea to misdemeanors. Author Jeffrey R. Toobin later wrote that some of the Walsh staff were upset, thinking their boss had been taken for a ride. I was just as unhappy from the other direction, knowing the label “criminal” had been applied where it was not deserved.

A lawyer in this process has to persuade a client to place a huge amount of trust in him or her, and it is a hard job under the best circumstances.

Rostenkowski’s circumstances were not the best. To get the highest-quality legal representation, he had hired an extremely well-known attorney. But even when such a lawyer does not seek out the press, his high profile makes plea negotiations bigger news than they would be otherwise. This is what happened here.

Moreover, Rostenkowski’s pals could not keep their hands off this case. They were lawyers themselves, or people with lots of experience on the Hill, or both. Ideology was not their main motivation. Perhaps some could not bear the idea of criminal disgrace for someone they thought a good man and a good legislator. Maybe others knew that if Rostenkowski went down the tubes, a large part of their own power would go with it. They competed with Bennett for the congressman’s ear, and “Trust your lawyer” is probably not what they whispered into it.

They had good material to work with, though, because Bennett had taken on President Bill Clinton as a client while defending Rostenkowski. There was no technical conflict. Rostenkowski probably agreed to the Clinton arrangement. But the dual representation dramatized the link between the two politicians and might have been expected to give the prosecutors an additional incentive to make an example of the congressman: After all, who wants to be accused of going easy on a man so visibly tied to the President? Such a thought no doubt crossed Rostenkowski’s mind.

Now, with the deal having fallen through, the House Ways and Means chairman does not have to cope with the suspicions and ambiguities of plea bargaining. Now he is in a fight and has hired a new lawyer--he is going to trial. The new attorney has come out swinging. He has said that some of the alleged offenses are ancient and that the congressman’s alleged “ghost” employees did government work. He has cited grave separation-of-powers issues in the case. Rostenkowski himself has said the government property he allegedly misused was not put to personal use.

It may turn out that the government’s case is far weaker than it seemed at the time of the U.S. attorney’s dramatic indictment press conference. Such a thing has happened before in federal corruption cases. On the other hand, it may turn out that the jury, cross-pressured by prosecution and defense, will decide to split the difference and convict the congressman of just one offense: That could send him to prison for longer than the six months proposed in the failed plea bargain. So Rostenkowski is on a dangerous path.

Yet to many people that danger turns out to be more tolerable than plea negotiations. In the world of plea bargaining, there is no moral compass. The prosecution offers to charge an individual with crimes different from those prosecutors believe he or she committed. Or they have charged him with crimes they do not believe occurred, so they will have some room for retreat when plea-bargain time comes around. Or they allege numerous offenses past their statutes of limitations, to increase the aura of guilt and thus ratchet up the pressure. An individual guilty of all crimes charged will get off the hook if prosecutors think there is a chance of a messy, risky trial. But an innocent individual can be coerced into admitting guilt, not by moral suasion but by the sheer threat of the state’s force.

It is a dirty process. If a client trusts a lawyer, he or she can come through it in one piece. People may open a bottle of champagne at the end of one of these ordeals to mark the end of the agony. But it is no real celebration, and you can see why some cannot bear going through it.*