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Take it to trial

Experience is a valuable teacher. Oftentimes, as a young attorney, I’m pegged by prospective clients as appearing inexperienced. “You look young,” is a common comment upon seeing me for the first time. As a 26-year-old attorney, I don’t fault that perception.

Who wants an inexperienced attorney when you’re facing 10-15 years of incarceration? Perhaps, someone with specks of grey in their hair – veritable witnesses of the attorney’s experience and wisdom — would be more to their liking. In my case, that hesitance tends to disappear when said prospective clients come to learn I’ve represented nearly 2,000 cases and tried nearly every type of criminal case .

As a public defender, I was in court day in and day out, making appearances in several counties. In a recent article I discussed why I enjoyed the experience, and more importantly, why other young attorneys should consider applying for a position. One of my favorite things to do as a PD was observe how other attorneys handled their cases and clients.

Over time, you came to learn the reputations of various local attorneys. Some have a reputation for being fighters, others not so much. To that end, it appeared and continues to be my observation that there is an apprehension on the part of some to take a case to trial.

Why that is I don’t know. The common answer I hear is, “If I can get a great deal for my client and save time, the better for me.” Granted, you’re obligated to convey a plea to your client and if they accept there’s not much you can do, however, I’m of the opinion that if a client’s options are 1) take a deal or 2) try a case (with the likelihood being they’d receive the same sentence),  a trial may be warranted.

Obviously, this is a simplistic characterization. First, the equation is generally more applicable in district court cases than circuit court cases.  The risk of going to trial in circuit court may have more severe consequences, for instance, accepting a plea to 2nd degree assault in exchange for one (1) year in jail as opposed to two (2) or four (4) years if convicted at trial.

In addition, there may be moments where a plea is advantageous in district court, for example, I represented a client accused of stealing thousands of dollars worth of items. Facing years in prison, the assistant state’s attorney and I formulated a plea that avoided jail time. Had the case gone to trial, significant jail time was a possibility.

Those caveats notwithstanding, attorneys should be ready to take any and all cases to trial. What happens if a key witness for the state fails to show up? Recently, I observed a situation like this. In an assault case, the state’s key witness failed to appear for a second time.

What should have been an advantage seized upon by the defense turned out to be a wasted opportunity because the defense attorney, visibly surprised, chose to pray a jury trial rather than proceed with the district court trial. With that, the state was given another chance to touch base with their witness.

Or, what if your client has a change of heart? On several occasions I’ve observed and heard clients change their mind (vocally) and express said change to their counsel. More than a few times I’ve come to court believing my client was accepting a plea only to find an hour before trial they now wanted to try the case. Preparation and a willingness to try the case tends to lessen the impact of said curveballs.

What do you think? Any observations?

One comment

  1. Great discussion. Coming to court ready for trial gives you and the client many options up to the last minute. So often a plea offer comes with the State knowing that no officers or witnesses are present. “On call,” you say? No thanks, we’ll go to trial. A nol pros is fine too, thank you.

    Equally important is the level of preparation. I’ve had a number of misdemeanor cases that would be considered “simple.” But, prepare for them like a major felony, and you are amazed at the details that come out. The state will not be as prepared, and your client has a much better chance of walking out the front door.