Archive for the ‘Trial’ Category

Gotcha!

Thursday, May 27th, 2010

When I was in law school, I was fortunate to attend many hours of public defender training. I can still clearly remember the cross-examination teacher describing his technique for impeaching a witness. He recommended something called “the 3 Cs.” The 3 Cs stood for “commit,” “credit,” and “confront.” I don’t know if it’s his thing or something widely known to trial lawyers, but it’s a pretty solid, general approach to impeachment.

Let’s say you have an officer who’s saying something highly incriminating, something that he didn’t put in his police report. You want to impeach him with that omission. Using the 3 Cs technique the teacher recommended, you’d first commit the officer to his current statement. Make sure the judge or jury understands exactly what he’s saying. Second, you’d credit his police report. Make sure the judge or jury realizes that, if what he’s saying had actually happened, it would’ve ended up in the report. Third, you’d confront the officer with the fact he omitted that essential information from his report.

The last C is the “gotcha” moment. Hand the officer the report and ask him to find the part where he says what he’s now saying. He won’t find it because it isn’t there, and he’ll look bad in the process. Gotcha!

I recently saw the 3 Cs in action. The officer testified that he was the one who found contraband in the car, and the defense lawyer immediately (and very obviously) committed the officer to that statement. “So your testimony today is that you were the person who found the contraband in my client’s car?” “Yes,” the officer replied.

Committed! One C down, two to go. Everyone in the room knew what the defense lawyer was going to do.

The defense lawyer then proceeded to do a great job of crediting the officer’s report. He established that the officer had training on how to write a good report. He’d written hundreds. He was detail-oriented. He prided himself on being thorough. The officer knew the prosecutor relied on the report for charging. He knew the defense lawyer relied on the report in preparing his case. The crediting went on and on.

By the end, the defense lawyer had credited the report as being the be-all, end-all of relevant information in the case. Crediting is always the longest part of impeaching with the 3 Cs, and this time it took forever. I couldn’t wait to see that “gotcha” moment.

The defense lawyer strutted up to the stand, gave the officer the report, and asked him, “can you please show me where in your report you mention that that you were the person who found the contraband in my client’s car?” The room was filled with tension as the officer carefully looked through his report. Everyone waited on the edge of the seat for that moment where the impeachment finally came together, then…

“Page 4, paragraph 2, second sentence,” the officer explained.

The defense lawyer, promptly and with great authority, proceeded to end his cross-examination with flair, proudly declaring “I have no further questions your honor!” as if he’d not just had his ass handed to him.

It was a spectacular facepalm moment. It was riotously funny (except for the defense lawyer and his client, of course) and probably the best “gotcha” moment I’ve ever seen in court. It was just reversed.

Turns out the 3 Cs aren’t so helpful when you haven’t read the police report.

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Posted in Trial, lawyers | 3 Comments »

Losing at Trial

Sunday, April 18th, 2010

Last week, a jury found my client guilty of three counts of dangerous crimes against children. I sat next to him in court as the clerk read the verdict, and he broke down before the clerk made it through the second count. He knew he would spend the rest of his life in prison.

This isn’t the first trial I’ve lost. It pains me to say it, but it’s also unlikely to be the last. No matter how hard I try, I’ll probably again have to experience the feeling of knowing someone trusted me with their life and made a gamble that didn’t pay off. It’s a twisting, sinking, hopeless malaise that consumes you. You’re in a nightmare. You know you can wake up, but the person who trusted you can’t. Someone had faith in you. You did your absolute best, and it wasn’t good enough.

The word “guilty” overflowed with significance. My client testified, so “guilty” meant the jurors did not believe him. Twelve people must have unanimously agreed he was lying when he looked them in the eyes and said he did not do the charged acts. “Guilty” meant that my client would never again go for a hike, drink a beer, or even order a meal from a menu.

My client sat next to me crying, and I was incapable of comforting him. I had nothing to offer. There will be a motion for a new trial. He’ll have appeals. From now on, however, the deck is even more stacked against him. This was his best chance to fight for his freedom. I can’t tell him everything is okay because everything is not okay. He heard a word that signified the end of life as he’s known it since the day he was born. I can’t dull the pain or fear for him.

Strange memories of my client popped into my head. I thought about when I visited him the day before Thanksgiving and he said to me, “I hope you have a great turkey day, Matt.” I thought about one witness describing him as being obsessed with Xbox and football. I thought about how on a weekday roughly one year ago he went to the auto parts warehouse where he’d worked for years and began a day just like any other. Instead of working a full day and going home, though, he was arrested before his shift ended and held without bond. He couldn’t have known it at the time, but that was his last day of freedom. He will die in prison.

I know the terrible feeling in my gut will go away eventually. At some point, it will probably be entirely replaced by a desire to make sure this never happens again.

When the jury left to deliberate, I felt good about how the trial went. Now, I agonize over every little thing I could have done better. Details of trial that would’ve escaped my memory forever had I won now pop into my head one after another. After losing, I get the overwhelming feeling that every case can be won with the right defense.

This was a tough case. The state had two recorded confessions from my client, but he insisted he was innocent. Two attorneys before me had heavily pressured him to take the plea. He went through with two settlement conferences, never once even considering the offers the state put on the table. Should I have pressured him more? Would it have made any difference? If I had done something different, could I have won the trial?

The guilty verdict was followed by the aggravation phase. As my client sat there weeping, I felt callous getting back to work. It was work on his behalf, but it didn’t matter. A life sentence is a life sentence. What middle-aged man cares if it’s seventy years or eighty? Aggravation took away an important time for him to come to terms with what was happening. It thrust him back in front of twelve people who just judged him, twelve people who without knowing took away everything he ever knew.

Criminal defense is not an easy job, and it’s never tougher than when you’ve just lost a trial. The only benefit is that a loss leads to reflection. It’s no consolation for my client, but I am never more acutely aware of the lives of the people I represent or the importance of what I’m doing. A loss does more to make me a better lawyer than any win could ever hope to do.

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Posted in Clients, Practice in General, Trial | 4 Comments »

Preparing for Trial

Sunday, April 4th, 2010

I spent a good bit of my weekend preparing for trial. It’s a draining experience, though not nearly as draining as trial itself. This particular trial has very high stakes. My client’s earliest release date will be more than seventy years from now if he’s convicted.

Being able to speak in public, knowing the facts of the case, and understanding the rules of evidence are rarely enough to effectively try a case. There are countless variables in almost any trial, and anything can happen. Every trial I’ve done has taught me that one of the most important skills a trial lawyer can have is the ability to predict problems that might arise and prepare accordingly.

My background is in music. In music, you do your best to gain technical mastery of your instrument. You learn the piece of music you’re going to perform, then you go out in public and do more or less what you’ve been doing in the practice room. For the most part, the audience is mostly what distinguishes practice from performance.

My first trial was a complete shock to me. I received a lot of guidance from established attorneys I respected, but no matter how much I wish it wasn’t the case, that just wasn’t a substitute for personal experience.

Opening argument felt familiar. I knew what I was going to say, and I said it. There’s a certain amount of improvisation even to opening, as the prosecutor’s opening or the jury you’ve picked may affect what you say, but that stuff is fairly predictable. You can prepare for it. Just learn the case, practice, and do your best.

What happens between opening and closing argument is a different story. Prosecutors do crazy things trying to get information out of witnesses. Witnesses do even crazier things, and judges may be the most unpredictable of all. Put enough pressure on people, and it’s almost impossible to know what they’re going to do.

As I’ve gained more trial experience, I’ve found myself devoting more and more of my preparation time to figuring out how I’m going to deal with situations I never would’ve thought of a year or two ago.

When you know what types of things have certain effects on witnesses, you prepare your questions accordingly. The content of my cross may be similar to what it would’ve been before, but I definitely ask things differently.

The same is true of objections. When you know the kinds of mistakes the prosecutor is likely to make, you’re able to make your objections infinitely more effective. Few things feel better than being able to give the court citations for the rule a prosecutor’s broken and the case interpreting it in your favor.

Being able to anticipate what’s going to happen is an incredibly powerful tool to have at your disposal. Unfortunately, it’s something you can’t rush. It’s something you build one trial at a time, and there’s no substitute for experience. I envy lawyers with decades of trials under their belts.

Trying a case is never going to be like playing a concert. I’ve come to grips with the lack of certainty, and I know there are always going to be things I can’t practice. With enough time, though, I imagine the feel of trial will more closely mirror the feel of a music performance.

Strangely, that almost makes me sad. The unknown is one of those things that makes trial so exciting.

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Posted in Practice in General, Trial | 2 Comments »

"Looks Like I'm Out of Judges"

Monday, January 25th, 2010

I haven’t been blogging because of my schedule. Too much work, not enough time. The end is in sight though. Or rather, the end was in sight. I was supposed to start a six or seven day felony trial this morning, and my schedule looked pretty bearable after that.

The case is in Maricopa County Superior Court, and it’s assigned to the master calendar. I’ve complained about RCC before. The master calendar isn’t much better. Whereas RCC seems designed to make sure most lawyers appear lost at all times prior to an indictment, the master calendar seems designed to rush every case to trial after an indictment without letting the parties see the same judge twice. I haven’t figure out why anyone would want the parties to see a new judge every time, but that seems to be the goal, and the folks at the superior court are doing a bang-up job.

I was supposed to show up in front of the presiding judge at 8:00 a.m. this morning to get it set in front of a trial judge and begin trial. I was early, but the prosecutor got stuck in traffic. I got to watch some motions to continue by defense lawyers and motions to dismiss by the state. The first case or two that was actually ready for trial got assigned to a judge. A few after that got assigned to commissioners. By the time I was ready to go, the presiding judge said he was out of judges and reset the trial for tomorrow. Same place, same time.

It feels kind of nice to have some free time, but I’m a little pissed I worked so hard this weekend to make sure I was completely prepared to go today. I would’ve loved to have relaxed on Saturday morning instead of spending that time reviewing the state’s exhibits again. I’m in a trial kind of mood, and that’s a hard mood to change. I really hope trial goes tomorrow. If I get up at the same time, put on another suit, make the same commute, and show up in the same courtroom only to get my hopes dashed again, I’m not going to be happy. I do wonder, however, how long it’s going to take before my life begins feeling a little bit like Groundhog Day.

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Posted in Courts, Trial | No Comments »

Trial Reflections

Saturday, January 9th, 2010

I spent last week in trial. My client was charged with one count of aggravated assault. If he had been convicted and the state proved his priors and its allegation that he was on probation, he faced ten to fifteen years. The theory of the state’s case was that my client kicked his live-in girlfriend in the face five or six times, causing her “temporary but substantial disfigurement.” The jury acquitted my client after a four-day trial and an hour of deliberation. Like any trial, it was an interesting experience. A few things stood out though.

I only had the case for about ninety days, and I was the client’s fifth or sixth lawyer, depending on whether you count his third (and last) public defender. I know his first two public defenders pretty well, and I could tell from the file that they really worked his case. They are great lawyers, and he was lucky to have them. Unfortunately, he didn’t agree. He filed some documents with the court saying not-so-nice things about the public defender’s office and his first lawyer in particular.

My client’s friend only brought him one shirt for trial, and I didn’t find that out until the second day of trial. My office is an hour from court. My house is even farther. Knowing the public defender had trial clothes for defendants, I asked if I could borrow a shirt. Maybe I shouldn’t have asked, but I did. I’ve had appointed clients complain about me being a “public pretender” in letters and pro per pleadings, and I’ve never taken it personally. People tend to undervalue what they don’t pay for themselves. I’d have given any of them a shirt. Not doing that just inconveniences their next attorney.

Well, the public defender felt differently. The receptionist was okay with me perusing their wardrobe, but the public defender herself came up and asked me who was going to get the clothes. Not just a public defender, but the public defender, the county official in charge of the office. She told me she would not let my client wear one of her office’s shirts because he “dissed” one of her lawyers. I got to spend a morning recess shopping for my client.

I’d consider the public defender who got the brunt of my client’s ire a friend. We’ve even discussed the case over beers. He later told me he would have gotten me a shirt if I’d asked him. Does anyone think I was wrong asking his office for a shirt? Does anyone think the public defender was right refusing to give me one?

Another thing that stood out was my conversation with jurors after trial. Win or lose, I haven’t had much luck with jurors wanting to talk after trial. These jurors were different, and what they told me increased my faith in juries.

All of the jurors said the case came down to reasonable doubt. They doubted the victim’s story, they doubted the physical evidence in the case, and they doubted the police investigation. It made me feel good that they actually thought about the burden of proof and the fact the state had to prove my client guilty beyond a reasonable doubt. After a 2009 with nonsensical and even internally inconsistent verdicts for and against me, it made me happy to hear from smart jurors who clearly took their duties seriously.

Finally, the trial made me think about risk tolerance. On the first day of trial, the prosecutor offered my client a plea to time served. My client could have walked out of jail that day, but he rejected the offer. He spent three extra days in custody during trial and risked spending a decade or more in prison. The gamble paid off for him in the end, but it wasn’t always clear it would. The victim recanted prior to trial, but she eventually recanted her recantation. Over a plethora of objections, the prosecutor even admitted into evidence a letter from my client telling her what to say. Some of the time, my case looked downright ugly.

I can honestly say I would have taken the plea. Innocent or not, I would’ve done it. No doubt about it. I don’t mind risk, but in my client’s situation, it would’ve been too much. I firmly believe there is no such thing as a guaranteed winner at trial. Should I trust the system more? Would any of you have done what my client did?

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Posted in Clients, Trial, lawyers, public defenders | 7 Comments »

They Were Practically Begging to Be Struck…

Sunday, March 8th, 2009

A lot of people have been writing about peremptory challenges lately. You can read some interesting posts here and here. In Arizona, the parties each get six peremptory challenges in felony cases not punishable by death. It’s not always easy getting a juror struck for cause, so those six “free” strikes usually feel like far too few. The problem is that most people think they can be fair even when they really can’t be. Who’s willing to admit to a room of strangers that they can’t possibly be fair and impartial?

Recently, I learned that when drinking and driving might be involved, the answer is “almost everyone.” I had a trial a couple months ago where there was evidence my client drank alcohol prior to driving, and his young daughters were in the car with him. My client was not charged with DUI because he had no signs of impairment and blew under the legal limit when given a breath test. Before trial, I filed a motion in limine to preclude any mention of the fact he’d been drinking. I argued his drinking was not relevant to the actual charge and that, even if it was, it’s prejudicial effect substantially outweighed its probative value. The judge denied my motion but let me ask prospective jurors all kinds of questions about their views on DUI.

What I heard from the prospective jurors in voir dire suprised even me. A lot of jurors thought we should have zero tolerance for any drinking prior to driving. Many of them said they simply couldn’t be fair to someone who had something to drink prior to driving. They seemed to wear their inability to be fair and impartial as a badge of honor. I felt like the panel bonded over their hatred of even the slightest bit of pre-driving alcohol consumption, and the jurors seemed to be pushing each other in some kind of competition to see who could be the most intolerant. I’ve never gotten so many jurors struck so quickly and so easily. I don’t think the judge was able to rehabilitate a single juror.

That experience left me wondering a few things. Is it normally tougher to get jurors struck for cause because people don’t have similarly powerful prejudices in other areas, or because they just don’t feel comfortable expressing their other prejudices? Is there any other area where people are so willing to admit they can’t be fair and impartial? Did the jurors really feel so strongly about drinking and driving, or were they just giving into social pressure? I’ll probably never know the answer to some of those questions, but at least it’s something interesting to consider.

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Posted in DUI, Trial | 2 Comments »

Trusting Prosecutors

Thursday, February 5th, 2009

In Arizona, victims can choose whether or not to be interviewed by a defendant or his attorney. In pretty much every case, I send the prosecutor a letter asking whether the victim would be willing to submit to an interview. Victims almost never want to speak with me, so I’m forced to trust that the prosecutor actually asked them about consenting to an interview.

I’m not a very trusting person, and I’m especially suspicious when there’s no way to verify what someone tells me. That’s the case with victim interviews. I bet a lot of prosecutors never bother asking victims, but in most instances, I have no way of proving it. I can’t later seek out the victim and find out. That would be a bar complaint waiting to happen. If the matter goes to trial, I don’t normally use my cross-examination time, my first opportunity to question the victim, to find out whether he or she was told I wanted to do an interview. Maybe I should.

I don’t think it’s possible to overstate the advantage the prosecution can gain by preventing defense attorneys from interviewing victims. Most of the time, there are no written statements from victims. You generally have only a vague idea about what they’re going to say. You have no clue how believable they will be. You won’t hear the little inconsistencies in their stories until you get to trial, so it creates a lot of unnecessary pressure. It may be that you end up having little if anything to work with, or the state’s case could unravel altogether. When the only evidence against a defendant is going to be the testimony of victims, it can be extremely difficult to assess the strength of the state’s case prior to trial.

Prosecutors have a lot to gain by not asking victims about doing a defense interview. There’s no good way to make sure a prosecutor hasn’t lied about asking them. I had one case where my client swore the victim moved to Kansas, and the prosecutor kept swearing she had contacted the victim. She kept telling me my client should take the plea because the victim would show up for trial. Trial came around, and there was no victim. Case dismissed. I’m pretty sure that prosecutor was lying to me, and she probably wasn’t the first one. I don’t think I’m being unreasonable by not trusting prosecutors to do something that might ruin their case and that I have no way of showing they didn’t do.

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Posted in Professionalism, Prosecutors, Trial, Victim's Rights | 5 Comments »

Criminal Defense Trial Records

Wednesday, January 28th, 2009

I’ve recently had a few clients mention to me that they had initial consultations with certain Phoenix-area attorneys who boasted jury trial records of more than twenty acquittals without a single conviction. I would have assumed they were exaggerating if they weren’t all saying the same thing. Maybe I’m wrong, but it seems to me that attorneys with jury trial records of twenty or more wins without a loss are exceedingly rare. I’m certain there are attorneys out there with records like that, but multiple attorneys within a five-mile radius?

In my experience, a case that’s close to a guaranteed winner will get dismissed prior to trial more often than not, so the ones that go to trial tend to have a less than perfect defense. That’s the way the system usually works, even in Maricopa County (shocking, I know). Also, I think that any criminal defense attorney who has handled a decent number of cases has encountered at least one client who insisted on taking a loser case to trial. Sometimes, you just can’t talk them out of it. A lot of attorneys call those trials “long-form guilty pleas.” I’ve spoken with some excellent attorneys who have a wealth of knowledge about the most effective defenses to use in such cases, but they’ve never claimed to have more than a 50% success rate with them.

Arizona’s jury trial statistics also seem to suggest that undefeated trial attorneys are rare. Some quick internet research tells me that over 1800 criminal jury trials took place in Arizona’s Superior Courts in 2008 and that less than 300 of those resulted in acquittals. Those are hardly perfect numbers, and I may be misunderstanding the data on the Arizona Supreme Court’s website, but I think I’m at least in the right ballpark. That means roughly five out of every six defendants who go to trial are convicted. It’s possible that a large number of acquittals are achieved by relatively few attorneys, but it seems to me that winning twenty consecutive trials is something of a statistical anomaly, even for a highly effective criminal defense attorney.

I doubt those lawyers are lying. I can see a highly experienced attorney passing off ugly cases to the associates they supervise in order to keep their personal trial records untarnished. If that’s how they keep up their record, I’d be curious about what their office’s record is. That is, after all, the more meaningful statistic for a prospective client who may get his case transferred to one of a number of lawyers.

They could also be employing creative record-keeping methods. I’ve heard some attorneys only count “good trials” in their records. In other words, they don’t count the ones they didn’t think they could win or the ones they did grudgingly. They also may not be counting appointed cases or ones that took place prior to entering private practice. If they’re former prosecutors and have never done a trial as a defense lawyer, they might claim a “100% trial success rate.” They may say that if a client is found not guilty on the majority of counts, it’s an acquittal. They may keep track count-by count. Personally, I think there’s something very deceptive about some of those practices, though I believe they are somewhat common.

I think the vast majority of clients don’t care about an attorney’s trial record. Most of my clients never ask, and I personally think that discussing trial wins and losses can be a dangerous thing, whether you have a terrible record or a great one. I wouldn’t be surprised if attorneys who advertise their perfect trial records find many of their clients hire them for that reason alone. There are a lot of factors that go into hiring an attorney, and the likelihood of a bad match is high when the client only focuses on one factor. You also have no idea how the client is going to respond. One of my clients said he didn’t hire one of the undefeated attorneys because he figured the attorney was “due for a loss.” To me, that makes the process of hiring an attorney seem like something akin to placing a college football bet (or numerous friends’ wise but upsetting bets on last year’s Super Bowl).

A criminal defense attorney’s trial record (or more importantly, his or her trial experience) is definitely something to consider, but it isn’t the only thing. Depending on how the attorney counts wins and losses, his or her trial record may not tell you very much at all. If those Phoenix-area attorneys do indeed have such excellent records without having to resort to passing off cases or creative counting, I am impressed. However, like with a lot of statistics, it’s probably not quite as informative as it would seem to be at first glance.

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Posted in Practice in General, Trial | 2 Comments »

Lawyer Stage Fright

Thursday, January 15th, 2009

I’ve seen plenty of attorneys let their nerves get the better of them in the courtroom, but I rarely hear attorneys discuss stage fright. Why don’t we talk about it? It negatively impacts the quality of representation for many defense attorneys, and I’ve seen prosecutors spend whole trials looking like deer in headlights. I know a fair number of prosecutors and defense attorneys who desperately plead out their cases because they fear trial.

I don’t remember anyone discussing ways to deal with stage fright in law school, and I don’t think most public defender or prosecutor training covers it in any real depth either. The advice seems to just be “keep doing it until you aren’t nervous anymore,” but for some people, just doing it over and over again isn’t going to fix anything. Plus, if you’re doing a terrible job over and over again, your clients are suffering. It’s not just your reputation on the line. You’re training with people’s lives.

The lack of nerve-talk among lawyers surprised me when I first started practicing law. Prior to being a lawyer, I was a musician. My whole background was in music, and I come from a family of professional musicians. Musicians love talking about stage fright. It’s basically an obsession, as conquering nerves, or at least minimizing their physical effects, is essential if you want to perform at a reasonably proficient level. Almost every musician has serious stage fright at some point in their career. Any decent private music teacher covers it with students. Music schools have countless resources available. There are even specialists you can see. Musicians read Zen in the Art of Archery and The Inner Game of Tennis. They practice breathing and other relaxation techniques. They seek out frequent performance opportunities for the sole purpose of applying the techniques they’ve learned. With numerous resources available and plenty of tried and true methods, most musicians learn to control their nerves well enough to perform at or near their actual level of skill.

Isn’t it odd that lawyers don’t pay as much attention to stage fright as musicians do? It’s just as big an issue for attorneys, and I suspect nerves cause a lot of smart people who might be great trial lawyers to look to other areas of law. I once judged a moot court competition where one law student was so crippled by stage fright that he couldn’t get through his closing. He’ll probably never try anything like that again, and who knows, maybe he’d be a great trial attorney. He seemed pretty bright and articulate one-on-one. Where are the resources for him? Where are the CLE courses for a practicing attorney with the same problem? I see a lot of dumb CLE courses in the brochures I get. There are a lot of dumb law school courses. I think lawyer stage fright is something that deserves a lot more attention.

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Posted in Practice in General, Trial | 1 Comment »

Should We Really Try More Cases?

Friday, January 9th, 2009

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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Posted in Practice in General, Trial | 2 Comments »