Mimesis Law
22 October 2021

Lies, Damn Lies, and Made Up Criminal Offenses

Mar. 15, 2016 (Mimesis Law) — Lawyers lie because everybody lies. As Judge Kozinski wrote, “Saints may always tell the truth, but for mortals living means lying.” Perhaps it’s sometimes okay for lawyers to lie, but that’s certainly not always the case. And therein lies the problem. When lawyers lie, it is usually first to themselves. The purpose of lawyers lying to themselves is so that they may advise their clients to do something that’s actually in the lawyer’s best interest.

Andy Mergendahl at the Lawyerist wrote

Lawyering, despite the efforts of those who write the ethics rules, has a conflict of interest built in: what’s good for the client is often the exact opposite of what’s good for the lawyer. And lawyers, being mere mortals, are morally fallible, and they know it.

They have to get past that knowledge if they are going to at least sometimes choose to do what’s best for themselves instead of what’s best for the client. To cope with making that choice, they lie to themselves in order to believe that what’s good for themselves is in fact what’s best for the client.

Andy identifies three broad categories of situations where lawyers will deceive themselves: convincing clients to pay for more services than they need, dispose of the case quicker than is warranted, and doing things to cover the attorney’s backside.

The primary difference between the three categories Andy identifies and Judge Kozinski’s laundry list of lies is the materiality of those lies. White lies or social lies generally lack a significant impact on behavior or choices. On the other hand, lies to a client about their case are often going to be material. And those are bad lies.

Yet, in the legal system, not all material lies are treated equally. Indeed, some lies are thought to be both useful and necessary to the orderly disposition of a case. There is even a name for these agreed upon lies in the legal profession: legal fiction. It can be defined as “either (1) a statement propounded with a complete or partial consciousness of its falsity, or (2) a false statement recognized as having utility.” In either event, it is by its nature a materially false statement.

Legal fictions are old and have been controversial. Eighteenth century lawyer Jeremey Bentham described legal fiction as “a syphilis, which runs in every vein, and carries into every part of the system the principle of rottenness.” Of course, he was really more of a philosopher than a lawyer, so perhaps he was overstating things. But, at a minimum, it seems suspect to formalize a falsehood and embed it into the legal system. This is all the more questionable in criminal matters, where life and liberty are at stake.

In the federal system, Criminal Rule 11 requires the judge to ensure that there is a factual basis for the plea. That would seem like a pretty obvious and uncontroversial thing for the judge to do at sentencing. If you think that, then you would be wrong. Ohio recently tried to amend its Criminal Rule 11 to reflect the federal rule on requiring a factual basis for a plea.

The push for change was led by Judge Donnelly:

Judge Michael P. Donnelly had seen enough by the time his spreadsheet of plea deals in sexual-assault cases reached nearly 200.

In each case, the defendant pleaded guilty to a lesser crime that bore no factual resemblance to what occurred, allowing many to avoid sex-offender registration requirements.

Many rape cases involved pleas to aggravated assault, a crime involving serious bodily harm in which the defendant was provoked by the victim — a scenario common in a drunken bar fight but wildly inconsistent with rape.

“It’s sidestepping the truth. It’s legal fiction, nothing more than a lie,” said Donnelly, a Cuyahoga County Common Pleas Court judge. “No one can defend this process. There is no ethical defense.” * * *

Donnelly’s study of 197 cases between 2008 and 2012 that resulted in plea agreements that he determined were not based on the facts represented only about 5 percent of the 3,700 sexual-assault cases handled in Cuyahoga County, an official said.

So too were victim advocates for the change:

“It is extremely difficult (for victims) to learn that the crime of rape was pled down to a lesser offense that has no relation to the level of trauma they endured,” wrote officials of the Ohio Alliance to End Sexual Violence and the Cleveland Rape Crisis Center.

But the defense bar was against the change:

“While (plea deals) may be factually incorrect, from a justice perspective it is the right thing to do,” said Ohio Public Defender Timothy Young. “We have punishments that are not proportional to everyone who commits a crime because not every crime, while of the same name, is of the same nature.”

Barry Wilford, public-policy co-director of the Ohio Association of Criminal Defense Lawyers, said, “Truth in plea bargaining is an easily stated expression, but it begs the question, ‘What is the truth?’  ”

Although Wilford, my old boss, is willing to go out on a limb by acknowledging the falseness of the plea, he quickly turns into a student of Wittgenstein and starts playing language games. Then Wilford calls back to law school by answering with a Socratic question, “what’s the truth?” If you haven’t already, you should probably check your wallet.

So too were prosecutors cold to the idea:

“Sometimes, you take the sure thing to get someone off the street and hold them accountable,” said Joseph Frolik, spokesman for Prosecutor Timothy McGinty, who took office in 2013. ***


Strict rules would clog the system, they say.

The changes would, “substantially complicate life for both prosecutors and defense counsel and will contribute little, if anything, to the integrity of the process,” Ohio Prosecuting Attorneys Association Director John Murphy said in an email to an Ohio Supreme Court.

In an interview with The Plain Dealer, Murphy said such a radical change would hamper too many plea deals.

“Without a lot of other work being done ahead of time to make this out-and-out change cold turkey would be a problem,” Murphy told The Plain Dealer. * * *

McGinty said in some cases prosecutors have to take the sure bet on a conviction. They do so after considering things like how strong the evidence is, whether a witness has been intimidated or doesn’t want to testify and what the chances are a defendant could be found not guilty.

“Prosecutors don’t want to be forced to take reckless gambles that might endanger the community’s safety,” McGinty said.

These quotes show much less philosophical naval gazing, saying, in essence, hold the criminals accountable, quickly, and without complications. In the battle of winning the press, it is a much more understandable and relatable message. Defense bar, find better messaging.

But part of the reason that the defense bar in particular had trouble explaining their objections is due the principal-agent problem that Andy discussed in his post. In many cases, it’s against the appointed defense attorney’s interest to go to trial, unless the court is throwing money at appointed counsel. And when it’s in the retained attorney’s interest to go to trial and thus charge more fees, it may not be in the client’s interest. Regarding public defenders, they have a caseload that really never stops growing. So, they always have something of an incentive to get rid of cases through quick and early pleas. Time, like money, is valuable.

Similarly, prosecutors have a steady stream of new cases. And once the decision to indict is made, presumably there is the belief that the defendant committed a crime, so quick pleas puts ‘obviously guilty’ bad guys away, spares the victim testifying, and just so happens incidental effect of avoiding the “hassle of a jury trial.” Plus, if the defense never really tests your case, then you are never wrong about your initial assessment of guilt.

Pleas devoid of any factual basis are a win/win for counsel, but how about the defendant? The defendant agrees to plea guilty to what is essentially a made-up offense. If the attorneys have to make up a new charge, then doing so suggests that the defendant is not guilty beyond a reasonable doubt of the true crime. It becomes “do the made-up crime and do real time.” This legal fiction operates with the consent of the defendant but quite possibly to the defendant’s determent.

Victims and communities too are short changed by this legal fiction. Often these factually false pleas are made to avoid the sexual offender reporting requirements. So the prosecutor “gets the bad guy off the streets,” but then when the offender gets out, the true crime is obscured to family, neighbors, and potential employers. And the legislative policy requiring registration is thwarted by the plea deal.

The end result is to turn criminal law into a sort of a quasi-contract, where the parties can write their own private law and get judicial enforcement. While probably not predicting this sort of specific situation, Bentham stated that the legal fiction had “for its object the stealing legislative power, by and for hands, which could not, or durst not, openly claim it—and, but for the delusion thus produced, could not exercise it.”

So, by permitting legal fiction in pleas, lawyers are usurping legislative authority for primarily their own benefit. We may say those false pleas benefit defendants, victims, and communities, but it is difficult to be sure when attorneys are the ones who are the primary beneficiaries of fabricated pleas.

Legal fiction is, after all, for lawyers.

5 Comments on this post.

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  • dm
    15 March 2016 at 12:03 pm - Reply

    This post avoids some of the reasons why a legal fiction is agreed upon.
    In my state a husband and wife can be arguing and wife attempts to leave the room. Husband, already standing in the doorway, is blocking her egress from the room while pleading with her to remain in the room and talk to him. Wife shouts at him to get the hell out of her way and husband complies. Police are called and arrest husband for impeding wife’s egress from the room and charged husband with misdemeanor domestic violence (this is a real case, seriously).
    Not a great jury case, but prosecution and defense agree to a disturbing the peace misdemeanor plea instead of the domestic violence. The reason the defense agrees is because the husband is a hunter and will lose his ability to hunt if convicted of a domestic violence misdemeanor (Lautenberg Amendment).
    Is the plea really an affront to society? I don’t think so and it serves the individualized circumstances of the case. Plus, variations on this fact scenario are repeated in DV cases all the time in my state, where conviction on a DV is presumption that the convicted party should not have custody of child in a child custody determination.

    • Andrew King
      20 March 2016 at 8:02 pm - Reply


      My issue would be with trying to penalize conduct that did not really happen. If both charges are supported by the facts, then I don’t really have an issue with the prosecutor agreeing to what is essentially a lesser charge. The way I attempted to define it above, I do not think that situation would then be a fiction.


  • Richard G. Kopf
    15 March 2016 at 3:35 pm - Reply


    Great post on an extremely important topic.

    By the way, in the federal system, as you may know, “relevant conduct,” commonly understood as the real offense conduct, drives the Guidelines thus obviating some of the problems you write about in the state system. Moreover, like most of my colleagues, I never accept a plea agreement until after I have seen the presentence investigation report.

    Thanks for writing about this important topics. It deserves more attention, particularly because it frequently results in sentencing disparity where some folks get sentenced for what they really did and others for a made-up account.

    All the best.


    • Andrew King
      20 March 2016 at 8:00 pm - Reply

      Thanks Judge.

      I cut my teeth doing federal criminal appeals; so, I am rather comfortable with the rules. A lot of state prosecutors were not.


  • A Legal Fiction, Among Many | Simple Justice
    16 March 2016 at 7:57 am - Reply

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