This post is more of a rant than a reasoned analysis of a legal issue in the white collar criminal defense world.
There are two phrases that I am tired of hearing a prosecutor say: “Your client needs to have a come to Jesus moment” and “Your client knows what he did.” Prosecutors make these statements during proffer sessions when my client is not there, usually when I’m pushing back on having my client accept an early plea deal.
“Your Client Needs to Have a Come to Jesus Moment”
Merriam-Webster defines this phrase as “a moment of sudden realization, comprehension, or recognition that often precipitates a major change.”
Prosecutors generally say this in a frustrated tone, upset that my client hasn’t decided quickly enough to plead guilty to the crimes the prosecutor is quite convinced he committed.
Beyond the religious overtone (which doesn’t bother me, but I could imagine might bother others), this statement often reveals an undeserved arrogance. White collar criminal cases are different from street crime cases. In street crime cases, there’s usually little doubt that a crime occurred. There’s a body. A cop saw a drug deal. The victim is injured. The question is whether the defendant did it.
In white collar criminal cases, however, there is usually no dispute that the defendant took certain. Yes, he signed the certifications. Yes, he submitted invoices to the government for reimbursement. Yes, he took the phone call and then made those stock trades. The question is whether the defendant intended to commit a crime or whether those actions are criminal in the first place.
In most of our clients’ cases, the answers to these questions aren’t clear. Sometimes the government is pushing the envelope about what is a “crime” under the law or bringing a prosecution based on a novel theory of criminal liability.
So, no, my client doesn’t need to “come to Jesus” to confess a crime, because it’s not at all clear that there was a crime at all, much less that the government can prove a crime beyond a reasonable doubt.
Beyond the absurdity of this statement, it’s just a terrible analogy. The prosecutor isn’t going to forgive my client if he realizes the error of his ways or show him any mercy. Nope. The prosecutor wants to get an easy win, a conviction to tout in a press release, and a serious penalty that likely includes years in prison. This is not exactly a WWJD moment, folks.
“Your client knows what he did”
Prosecutors use this phrase when I’m pushing them to give me more pre-indictment information before my client will agree to plead guilty. I’ll explain during a proffer that my client doesn’t understand what he did wrong and that I need to know more about their case before I can advise my client as to whether taking a plea makes sense. And the prosecutor, rather than agreeing to show me what evidence she has against my client, responds, “your client knows what he did.”
A few years ago, an overaggressive prosecutor threaten to indict my client (a public school teacher) with a fraud charge with a loss amount that would lead to a life sentence. He then made some plea offer to a decade in prison or something alone those lines. It was completely insane. I’d talked to my client and I’d talked to the lawyers for the other supposed co-conspirators about what had actually happened. So when the prosecutor made this threat, I asked what evidence he had that my client—unquestionably the lowest-level person involved—knew about the wrongdoing. Just show me one email that my client had any knowledge of the supposed scheme, I said. And his response was, “your client knows what he did.” I thanked the prosecutor and told him that I would talk to my client. We rejected the plea offer and the prosecutor never even called me again. The whole case went away. Poof! For all his ridiculous posturing about a life sentence, and his insistence that my client “knew what he did,” the prosecutor did not even have enough to bring any charges at all.
A lot of people are surprised to learn that the government doesn’t have to share anything with the defense before indictment. The prosecutor can explain that she will bring charges and seek a 20-year sentence and ask if my client wants to plead guilty to something less than 20 years. But before my client pleads guilty, he has no right to see the evidence against him—no right to see the documents or read the summaries of the witness statements. No chance to really evaluate the strength of the case against him or make any sort of informed decision. When playing poker with years in prison, clients cannot even see how the deck is stacked.
As I explained earlier, liability in white collar cases are not always cut and dried. Often, until the government explains its theory of the case and explains what evidence it has in support of the facts it believes to be true, my client truly does not understand what he did that could be a crime. A prosecutor who falls back on “your client knows what he did” and refuses to share information is simply taking advantage of the discovery rules to try to leverage an early plea with as little resistance as possible.
I suppose I shouldn’t be too hard on prosecutors who use this phrase. After all, it’s such a revealing tell.
The good prosecutors, the ones with strong cases? They show it to you. They may not show you all the warts in their case, but they will show you the bad emails, the bank transfers documents, the back-dated contracts. They will describe what witnesses will say, even if they will not name the witnesses. They will explain how that evidence supports the charges to which they are offering a plea. I may disagree with their analysis or with the facts they can prove, but I understand the basis of the possible charges. I may not be able to evaluate our defenses but I sure can evaluate the strength of the government’s case.
The shaky prosecutors, the ones with weak cases? They are the ones who seem to feel backed into a corner when defense lawyers press for more information. They are the ones who retort that my client “knows what he did.” Falling back on this cliché—instead of showing me your evidence—reveals an awful lot about the strength of the case.