There are two types of defense lawyers. Corporate and criminal. They’re different animals.
Corporate defense lawyers spend their existence fighting plaintiffs’ lawsuits against businesses big and small. They usually work for an hourly rate and can depend on getting paid regularly by their clients. They tend to be risk-averse. They are predictable. They went into law because they were looking for a safe, status token, reliable way to make money. They have an establishment mindset and see no issue in defending a chemical company’s toxicity or an institution’s complicity in the banality of evil. They defend the status quo because they are the status quo.
Criminal defense lawyers spend their existence defending the damned. I steal the phrase “the damned” from Gerry Spence. He taught me that your judgment of a “criminal” depends on where you start their story - do you start it at the moment they pulled the trigger, or their childhood when they were beaten and raped? Where you start the story matters.
Criminal defense lawyers are a bit like Plaintiffs’ lawyers in that their income is uncertain. A lot, if not most, criminal defendants are indigent. Those that aren’t often have their assets seized under draconian pretrial asset forfeiture laws. The government operates as its own criminal gang on that front. Few can afford the couple of million dollars necessary for a proper trial. Few even know what’s involved in a criminal trial anymore, mistaking what’s on t.v. and in books for the truth of the matter which is mostly non-textual and unspoken.
The cost of a trial for a defendant is one of the main reasons the criminal jury trial is on life support in this country. Over the last century, the rise of the New Deal administrative state and its utopian faith in the good of government has made the cost of going to trial so expensive most defendants enter into a plea whether they’re innocent or guilty. Most judges are clueless as to what a trial actually costs; they’re too busy trying to manage their overflowing dockets with all sorts of procedural barriers that increase the transactional costs for defendants to the breaking point. Few Judges have ever run a law firm or any business. The Government has the money and resources to deal with these costs; a criminal defendant rarely does. And this has a negative effect on the criminal defense bar.
Because the criminal defense bar’s revenue stream becomes dependent upon plea deals and not trials, a lot of criminal defense lawyers become the prosecutor’s bitch. Because they have to please the prosecutor to get the deal the prosecutor knows the lawyer and client are desperate for. This neuters the adversarial process - the constitutional foundation of our justice system - and replaces it with legal feudalism where prosecutors are worshipped and defendants are left begging to their feudal lord. It distorts the law by creating a shadow set of laws different than the reported case law but the dominant form of law. The law of the plea governs, not reported case law, and those are two different things. The former deviates from the latter in ways undreamt of by the casual observer. I see this everywhere I go, and I practice all over the United States. It’s a distortion created by the institutions, not necessarily any person. But an injustice nonetheless.
The word “plea” certainly has changed a lot over the years.
Medieval Latin placitum, plactum "lawsuit," in classical Latin, "opinion, decree," literally "that which pleases, thing which is agreed upon," properly neuter past participle of placere "to please, give pleasure, be approved".
Then to Old French plait "lawsuit, decision, decree" (9c.)
To, early 13c., ple, "lawsuit, legal conflict," also "strife, contention, complaint," from Anglo-French plai (late 12c.)
The sense development seems to have been from "something pleasant," to "something that pleases both sides," to "something that has been decided." Meaning "an entreaty, a pleading, an argument in a suit" is attested from late 14c.
The recent legal concept of Plea is to reach a deal, regardless of how True Justice is affected and certainly very far from “giving pleasure”.
Love this comment, which I read after finishing my morning Latin lesson!