How often do you win?
Johnnie Cochran’s Ghost
Dear Late Mr. Cochran:
If by “win” you mean that I get to do a job I enjoy and that I think is meaningful, that I get to be surrounded by friendly colleagues and support staff, that I have supervisors I admire and who care about my development as an attorney, that my job includes a killer health insurance policy and requires a bitchin’ dress code, and that I can come home to my beautiful wife at a decent and predictable hour; then I win EVERY SINGLE DAY!
If by “win” you mean the number of times I can walk my guy out the courthouse door after a “not guilty” verdict, then I win very, very rarely. In fact, I wager that I have gotten more guilty verdicts than most of the DAs against whom I try cases. This is not unusual for defense attorneys who don’t get to cherry-pick their clients on the basis of jury appeal and likelihood of actual innocence. As a public defender, a client telling me, “I didn’t do shit!” is enough of a reason as any to take his case to trial. It might be a little more difficult to find a reputable private attorney to take a case based on indignation alone.
Personally, I think I should always lose and DA’s should always win. After all, they get to pick their cases and they get to plea bargain down to whatever will make the case settle, thereby avoiding a trial if the evidence is at all uncertain. If I can get my client a fantastic deal in that process, well, that doesn’t count as a win in the traditional sense, even if it’s a good thing for my client.
There is a lot of nuance in my job, so not every guilty verdict is a loss. Sometimes I try a case simply because the DA has not offered anything of value in exchange for my client giving up his constitutional right to a jury trial. The incentive to enter a plea is very low if the prison term offered is close to the maximum for the charges or if the charges he’s pleading to include “strikes” that will guarantee he will eventually serve a life sentence when he is released and given a chance to re-offend. If the DA’s offer is not interesting to my client, then what does he really have to “lose” by taking his case to trial?
As a public defender, I consider the following to be a “win,” in order of most victorious:
- an outright dismissal, which spares my client the stress and exposure of a trial
a “not guilty” verdict from the jury
a hung jury or mistrial – just as good as a “win” in my book because it accomplishes my task, annoys the DA, and I have a soft spot for anyone who can hold his or her ground under pressure
a partial acquittal, particularly if the dropped charges are a “strike” offense or carry a heavy sentence
a partial acquittal, if the dropped charges are the ones my client contested
any partial acquittal
a conviction on all charges, but where the final sentence is less than the pre-trial offer
a conviction on all charges, but where the final sentence is not much worse than the pre-trial offer
So there you go! I appreciate the question and as always, I welcome all questions and comments from my readers.