Plea, please

IN the prosecutor's words, two defendants had been part of an extensive insurance-fraud scheme involving fake accident reports, false damage claims, and thousands of dollars of larceny from the insurance firm. Many of the co-conspirators had already pleaded guilty. They included the independent adjuster who prepared the bogus paper work and the ``inside man'' who, while ostensibly working for the company, had approved fictitious claims and signed payment checks.

Well aware of this background, and recalling the old courtroom axiom that the most convincing argument for a guilty plea is the clerk's calling the case for trial, the judge wondered whether the two men before him would put the government to its proof. In one sense they had little to lose. The government's case seemed strong, but some unexpected development could still wrest them acquittals. In every defendant's heart, the judge realized, resides a bit of Mr. Micawber's trust that ``something will turn up.''

On the other hand, a defendant who pleads guilty obtains certain advantages. His saving the government expense and the risk, however small, of an acquittal generally entitle him to commensurate leniency in the prosecutor's sentencing recommendation.

By formally admitting guilt, the defendant also spares himself and his family the agony of seeing his misdeeds drawn out and publicly reenacted. Finally, live testimony often gives the judge a much less flattering portrait of the offense - and the offender - than the prosecutor's dry recital during the change-of-plea ritual.

Trial-less dispositions are necessary. About 85 defendants out of 100 plead guilty, but major trial courts can barely stay abreast of the litigational tide. Any increase in the trial-plea ratio threatens inundation.

The judge, therefore, had little trouble persuading himself that a plea would probably serve the best interests of both the public and the defendants. From there, it was an easy step to assuming that encouraging a plea here was simply a matter of judicial duty.

The judge believed very strongly that stimulating a plea did not properly include guaranteeing a particular sentence; so he necessarily limited his scope of action.

``Do we have triable issues?'' he asked defense counsel. It is a polite way of saying: ``The facts, as I know them, suggest that the government has a strong case and may very well win.'' Unspoken, this conceals another observation: ``However tightly a plea bargain may tie my hands before trial, the only limit on me after a verdict is the statutory maximum and consecutive sentences.''

``We certainly do have triable issues,'' one defense lawyer said. ``In fact, we think the prosecution's case has more holes than a pound of Swiss cheese - and every hole is full of reasonable doubt.''

``Well,'' said the judge, abandoning the indirect approach, ``from what I know of the facts, the government's case is strong enough to get a verdict. Whatever recommendation the prosecution is talking about now, once the jury comes in the only thing that binds me is the statute's maximum.''

``If Your Honor please,'' the lawyer answered, ``I hope you're not suggesting my client would suffer if he insisted on his constitutional right to a trial.''

``Let's bring in the jury,'' said the judge, as much to cover his own chagrin as to end the colloquy. Unwittingly, he had crossed the fuzzy line between encouraging and forcing. The lawyer was right: A judge should not even appear to press a defendant into surrender.

And yet, as the judge had frequently observed, many defendants are not aware of the pitfalls in stubbornly deciding to force the government to its proof.

Even so, maybe a judge has to let the man whose liberty is on the line make his own mistakes.

Hiller B. Zobel sits on the Massachusetts Superior Court.

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