A good criminal defense lawyer doesn't fear the trial penalty

     The September 6, 2011 New York Times contained an article entitled "Sentencing Shift Gives New Leverage to Prosecutor" by Richard A. Oppel.
     The well-researched and well-written article contains an examination of the new trends in criminal law that are having a chilling effect on criminal cases. Prosecutors are now illegally punishing people accused of crimes by penalizing the accused if he doesn't accept a plea bargain. The article notes that the number of criminal cases which go to trial has dropped to 1 in 40.
     The prevailing wisdom is that prosecutors now hold the threat of stiffer punishment over an accused who refuses to plead. In short, a prosecutor offers 2 years probation on a felony if the accused enters a plea, but if the accused insists on a trial because he believes he is innocent, the prosecutor will push for a maximum sentence of ten years in prison if the accused is found guilty by a jury.
     This is an old tactic. It's not new. Prosecutors have been doing it for years. It works especially well when an accused is sitting in jail and can't get out on bond and the only ticket to freedom is to accept a plead bargain for probation. In such a case, it's no wonder the accused takes the deal. He wants out of jail. Period. Who can blame him?
     The New York Times articles implies that the reason this works is because a great many people opt for the lighter sentence rather than risk trial and a heavier punishment. Keep in mind that the heavier punishment for exercising your constitutional right is called a "trial penalty." It's illegal.
     Here's how prosecutors and judges get away with the trial penalty game:
     Many criminal defense lawyer won't fight it. Period.
     A criminal defense lawyer who flinches when a prosecutor offers the carrot and stick of a light sentence plea bargain or a stiff prison sentence is a criminal defense lawyer who is unsure of his trial skills. Many lawyers will say, "But they had an open and shut case!" Or "This is ___ County, and it's different here!" Others say, "There was nothing I can do!" I can't tell you the number of times I've had clients tell me that their prior lawyer said these things to them.
     This is disturbing on so many levels. A good criminal defense lawyer knows that taking a case to trial is never a bad option. Some of the worst "open and shut" cases I have tried in 16 years of criminal defense were the ones that were the fastest not guilty verdicts in my career. The secret is the criminal defense lawyer must try his case with passion and do so aggressively. If the criminal defense lawyer assumes that his client is guilty, or assumes the evidence presented by the state will be admitted, then the case is lost. The criminal defense attorney has to object to everything, fight like hell to prevent the state from presenting evidence, challenge the admissibility of evidence, challenge the veracity of witnesses, fight like hell on the technicalities.
     This shift from taking cases to trial and towards accepting plea bargains is driven completely by the prosecution being better poker players. They make the defense lawyers flinch.
     Economics is also a factor. Many people accused of crimes can't afford a top-flight defense. Many have to rely on appointed lawyers and many appointed lawyers don't have the nerve, the skill or the willingness to fight hard simply because there's not enough money in it for them.
     A criminal defense lawyer who fights like hell on a criminal case can win in the trial penalty game. Prosecutors are not afraid of criminal defense lawyers who cave. They call them "pleaders." The accused who hires a pleader will be plead guilty. Prosecutors know that there are certain lawyers who will not plead their cases out of fear of losing. The criminal defense lawyer who makes the prosecutor flinch gets a far better outcome for his client. When the prosecutor is afraid of losing, that's when charges get dismissed. When the prosecutor is afraid of losing, that's when pretrial diversions and other beneficial resolutions are offered. No prosecutor drops a charge out of the goodness of his heart. He drops a charge because he knows that the charge is not legally correct, i.e. a case filed by a cop that simply won't stand up to legal scrutiny. Further, the prosecutor will drop a charge because he's going to lose the case.
     A good criminal defense lawyer is a good poker player. A good criminal defense lawyer turns the trial penalty argument on its head by telling the prosecutor that he's going to take it to trial -- a trial most states can't afford due to huge cuts in judicial budgets -- and if he loses he's going to appeal the case all the way. A good criminal defense lawyer knows most prosecutions can't afford this.
     Further, a good criminal defense lawyer knows that the trial penalty dodge won't work if he keeps his client out on bail throughout the process. What the accused doesn't want is to be stuck in jail the entire time.
    Also, the trial penalty dodge would disappear if the criminal defense lawyer would simply put into the court record that the prosecutor asserted the trial penalty. Then the criminal defense lawyer should appeal that issue. Eventually the courts will weigh in on the tactic and it will be curtailed.
   
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