A confession? Well. Let's see. Considering my own belief that every free adult in the US could be a felon but for not having been caught, I suppose I could become one of the unfree if I said too much. So anything herein that sounds like a confession should be seen as a hypothetical. If I take the time to look at the mistakes of other lawyers, I am liable to find my own mistakes when I feel I can understand how things happen in court. Here is an example:
A middle-aged woman is accused of embezzling a substantial sum from her employer, a local company for whom she did bookkeeping for several years. She says she didn't do it--she did write the checks, but her boss cashed them and converted the money to his personal use. So maybe this isn't very credible, but what duty is there to check out everything the government might use in its case, versus "moving the case" more quickly on the basis of a cursory look at the State's case? I suppose the best approach is to ask the client what she expects, rather than telling her what I expect is going to happen. But what if this particular woman is impaired in some way (but is not incompetent) and is really not strong enough for making decisions? I think the usual practice would be to "help" her decide and negotiate a realistic plea--a kind of cooperative settlement. Notice how the truth of the matter gets obscured permanently by this process of decision making, because the initial denial is easily set aside after the offense report has been read and the amount of restitution is calculated.
I believe this happens quite frequently--lawyers decide they understand the case based on their experience and then proceed to explain it in prognostic terms to the client. This is the effect of the kind of casuistry that underlies the legal reasoning we learn so well in law school, and is a major factor in miscarriages of justice. Who will look, if not the defense lawyer? We seem to assume the State is perfectly able to prove its case, yet that is not always true. I would feel better looking, but there isn't always time to prove the State's case for yourself and your client. And most clients (as well as many lawyers) are not sufficiently courageous to gamble on a jury anyway.
Now just say, again hypothetically, you pick up the case many years down the line, when the State now wants to revoke probation and send our older middle-aged woman to the pen. She is now much worse for the wear, and has been skipping her reporting dates. Is there any need to look into the facts and circumstances, to understand why she failed to report, and what is the status of the restitution? Is our victim willing to forgo some of his money? Is our victim still alive?
Should we look at our client's mental health? All these things are optional for many lawyers I know. And if we use persuasion or even coercion on our clients to get the case settled in such a way as we think is best, we forgo any examination of the truth in exchange for the certainty of settlement. I have now waded into the thick of it--the fluid areas where lawyers contemplate risks, and compromise ostensibly for the client's best interests. Have I done this? Oh, yes, many times. But I cannot tell whether I was wrong or not. And not knowing that means I was not right, either because criminal defense lawyers must be the sentinels of the system. We are responsible for the quality of justice in the United States, and it is only by looking into things closely that we can sustain that important function.
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