What is winning?
Criminal defense is a results based business. You either win or you don't,
right? clinets line up for lawyers that win - no matter how, why or what
you did to get there. If you lose, they don't care how nice you are,
what kind of service your firm has, how many great legal moves you made
or what you were up against. I accept that. I agree with that. Criminal
law is like everything else there are winners and there are losers. The
big question is - what is winning?
Most people looking for a
criminal defense lawyer are in real trouble. What they really want to know is "can you save
my butt?" The fact is, I usually don't know. Anyone who says
they do is probably lying. As far as I know, nobody controls the Judges
and the prosecutors, so saying they know what is going to happen is just
not true. In addition, initial consultations usually occur shortly after
arrest. We probably don't know what information the police have, how
thorough the investigation was, who the prosecutor is, who the judge is
or what the complaining witnesses position on the case is. Those things
The reality is that cases can only be resolved a few ways. 1) dismissal
prior to trial 2) acquittal at trial 3) plea to reduced charge 4) plea
to charge 5) conviction at trial.
Dismissal Prior to Trial
Deep in most criminal defendant's gut is the hope that on their next
court date they will be freed. The judge will tell them they are free
to go, and never return. Pre-trial dismissals are relatively rare. Police
arrest people because they think they did something wrong, something illegal.
The odds are low that the prosecutor turns right around and lets that case go.
Pretrial dismissal is possible when: 1) the charge is very minor and the
defendant has never been in trouble before ie- high school student takes
a pack of gum or someone with no criminal history forgets to pay the car
insurance and is stopped for driving with a suspended license. 2) the
police did something wrong – ie – arrested someone for something
that wasn't illegal like filming an arrest on the street (People v.
Emily Good), entered a house without a valid search warrant, or stopped
a car without probable cause 3) the paperwork is defective, ie –
the police failed to state each element of the charge like where the event
occurred, or the name of the defendant 4) there is no proof ie- the prosecutor
knows they can't prove the case so they withdraw the charge (very
rare) or, in a felony, the grand jury dismisses the charges against the
Acquittal at Trial
Acquittal at trial is the ultimate reward for a defendant and a criminal
defense lawyer. The defendant walks out the door. The problem is, to get
the ultimate reward means risking the ultimate loss, conviction at trial.
The majority of criminal cases are resolved by plea bargains. Why? Because
most of the time the prosecutor won't dismiss the charges the police
just brought against a defendant and there is not a valid reason to dismiss
the charges if there is evidence and sufficient paperwork/police work.
Further, both prosecution and defense are scared to lose at trial.
Instead, there is a period of negotiations between the prosecutor and defense
attorney. Eventually most prosecutors will make a plea bargain offer.
By definition a plea bargain gives the defendant the benefit of a reduced
charge or reduced sentence in exchange for a plea of guilty. The prosecutor
is willing to give a reduction because the conviction (and therefore some
consequence) is guaranteed.
Conviction at Trial
Conviction at trial is a scary place for most criminal defendants. It sentencing
is left to the judge's discretion. It means they are subject to the
maximum penalties allowable.
So, what is winning?
Is pretrial dismissal winning? Heck yes it is. It all the reward and none
of the risk.
Is acquittal at trial winning? Yes. But it might mean the defendant and
lawyer are real gamblers. They rolled the dice and won. Regardless, it
sure feels good. If the prosecutor didn't make a plea bargain offer,
or worse yet, made a crappy offer and pretended they were doing you some
kind of favor, there was no choice.
Is taking a plea winning? Wait for it…sometimes. One of the results
I am most proud of is a guy that got sentenced to 3.5 years in Prison,
another is a convicted sex offender. The first guy was accused of shooting
two people, he was looking at 50 years. My investigation shed light on
some serious issues for the prosecution. After extensive negotiations
he pled guilty to possessing a gun, with a the minimum sentence of 3.5
years. The other guy was facing predatory sexual abuse charges, he was
looking at 25 to life, and had given a full confession to the police.
I hired a leader in sleep disorder research from the University of Rochester
to investigate the case. He gave an opinion that it was possible there
was a sleep disorder involved in the defendant's actions. After lengthy
negotiations my client received 10 weekends in jail and probation. For
more examples of our results, clike here,Case Results .
The question of what is winning for a criminal defense attorney is a long
and complicated one. Winning means different things in different cases.
It means different things to different people. It is like so many of the
things we deal with in the law, there is sometimes black and white, but
usually the answer is somewhere in between.