» Practice in General, Trial » Should We Really Try More Cases?

Should We Really Try More Cases?

I don’t completely agree that defense attorneys need to try more cases. I think a lot of defense attorneys are plea mills. Those attorneys definitely need to try more cases. However, trial is often too risky an option for many clients to seriously consider. I can’t blame them.

In Arizona, mandatory minimums give the state an incredible amount of leverage. Someone accused of a dangerous offense or a dangerous crime against children is guaranteed a stiff prison sentence if they’re convicted. If you have any prior felony conviction and are accused of a felony offense not involving personal drug possession, you are not eligible for probation. You must go to prison if convicted. If you have two allegeable prior felonies and are accused of a felony not involving personal drug possession, there is no way you will get less than 2.25 years, even for the silliest felonies. If you’re on felony probation, you can get no less than the presumptive sentence. Certain mandatory-prison offenses require that prison time on all counts be served consecutively. When the options are taking a plea and going away for a few years or spending life in prison if convicted, it’s a no-brainer for many clients.

On top of that, juries can be unpredictable. I had one case with a split verdict (guilty on count one, not guilty on count two) where the jurors were eager to talk with me afterwards. I was both fascinated and horrified by the glimpse I got into the inner workings of that jury. Apparently, they went into deliberations unanimously agreeing that my client was not guilty on count two. I was sure they’d convict my client on that count. On count one, they started deliberations with one juror in favor of a guilty verdict and eleven jurors in favor of a not guilty verdict. That one guy convinced the others to convict my client because he noticed my client blinked too much during the part of my closing where I discussed that count. You never know what kind of weird things the jurors consider in reaching a verdict. Combine that with harsh sentencing laws, and trial just isn’t something many defendants are willing to do.

I wish I could try more cases. In fact, I am still bothered by a few cases I would’ve liked to have taken to trial, but what do you do when the state offers your client a misdemeanor plea with no jail and one year of probation on the eve of trial and he’s looking at a mandatory 2 to 8.75 years in prison? Cases that should go to trial but don’t are especially common when your client isn’t in the country legally. Often, illlegal immigrants insist on pleading guilty because it allows them to be released months earlier than they would be if acquitted at trial. Illegal aliens aren’t bailable, so they have to remain in jail pending trial. If they’re going to be deported no matter what and don’t care to ever come back, a victory at trial is meaningless. Why not just get deported as soon as possible? Again, I can’t blame them.

In theory, I agree that attorneys should try more cases. I wish I could try more cases. However, I don’t think defense attorneys in general need to try more cases, at least until our sentencing laws get a massive overhaul.

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One Response to "Should We Really Try More Cases?"

  1. brian tannebaum says:

    That begs the question. What will it take to reverse the onslaught of ridiculous sentencing structures? We all know this: If every defense lawyer went into court, let’s say half of them, demanding trials – the system would collapse.

    I received an email today from a judge that there is such a back up of misdemeanor cases that they are setting them all on calendar for plea instead of trial. Now I know you are talking more about felony cases where defendants are facing decades, but in this case, what if we all demanded trials? The system would come to a screeching halt.

    As long as we plea, plea, plea, we will never get anywhere.

    I say this knowing that there really is no “collective defense bar” to speak of that would ever stand up to all this crap.

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