How often do you win?

Dear Norm:

How often do you win?

Sincerely,

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.

Respectfully submitted,

Norm DeGuerre

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6 comments on “How often do you win?

  1. TheMostLikelyStory says:

    I was just the other day arguing with a friend about what we thought the prevailing attitude of a public defender toward his client was. We were both making great generalizations of course, but it was fun. It’s interesting to hear that you would many times prefer that the DA gets their way. This is in line with the opinion of my friend, but for a different reason I think; he thought that most defenders, lacking motivation in the absence of any prospect of monetary gain, won’t put the effort in to properly defend the client. It is also because many of them want to process to be smooth sailing and don’t want their reputations negatively effected. Hopefully i’m not misrepresenting his opinion, but that’s how I understood it (I sent him the link so perhaps he can correct me if so). I on the other hand took the tack that so many defenders, working for less than private attorneys, probably have a predisposition to further the interests of their clients (even at the expense of their own interests). Which would you say is more often the case?

    • Thank you for your comment. First of all, I don’t prefer that the DA get his or her way; I prefer that the prosecution puts together a decent case so that charges aren’t overblown, innocent people aren’t troubled because they got the wrong guy, evidence hasn’t been collected illegally, etc. The DAs have all power and advantages on their side, so if they bring a case to trial, then there is no excuse why they shouldn’t win. Do you see the difference?

      Now about your friend characterizing public defenders as lazy because they are government employees, I do take some offense to that. Firefighters, police officers, astronauts, and even district attorneys are also government employees and no one thinks they do an inferior job just because they aren’t paid on commission. In fact, if they were, it might be considered bribery. A gig at a public defender’s office is actually a pretty competitive position these days. We do it because we love doing jury trials. We do it because we see the value in helping our community by keeping cops honest. With all the paranoid rhetoric about the US becoming a police state, public defenders are and have always been the only ones actually doing anything to keep it from happening. In my experience, district attorneys are far “lazier” when decide they want to settle a case right after I set it for trial, come to court unprepared, or complain about the time it takes for my client’s rights to be asserted.

      And while we’re on the subject of public employees, my visits to the DMV have been a joy when compared to what passes for “customer service” for almost any publicly held company. When I call for help, I’m usually on hold for far longer than I’ve ever had to wait in line at the DMV.
      I have some thoughts about private counsel. First, running a law firm requires business skills that not all lawyers possess. Our office can keep some of the best defense attorneys in part because all they have to do is try cases. They don’t have to worry about the hourly cost of investigators, comparing employee health care plans, hiring secretaries, finding clients, getting payment from clients, etc. And they get to work decent hours. The downside is that they might not be as skilled with “bedside manner,” but that does not mean public defender clients are getting inferior defense. In fact, this “lack” of skill often works in the client’s favor. There are many families who spent their entire fortune on a private lawyer who charmed them into believing he would help them, only to dump their case on a public defender when it came time for trial. It happens all the time. A $15k retainer can be easily frittered away on appearances and phone calls even before any trial date is mentioned. If your friend thinks that motivation disappears when money is no longer an incentive, there is no greater example of this than a private attorney that abandons a family when the money is gone.

      In short, doing what is in my client’s best interest is in my best interest.

      Again, thank you for your question and thank you for your support. I’m glad you enjoy my blog.

      Respectfully,

      Norm

      • TheMostLikelyStory says:

        Great…now I get to say “I told you so!”
        But seriously, this really helped to clarify my understanding of both private and public defenders. Having just been involved as a victim of a raid on a cannabis grow operation, I have personally experienced the “frittering away” of a retainer, and on nothing more than what amounted to an extended consultation. Maybe a few 30 second phone calls on top of that, but hardly enough to justify the cost as far as i’m concerned. It was an expensive but necessary move to make in the heat of the moment, though.
        Thanks for maintaining an excellent log, I really appreciate what you’re doing here 🙂

        Victor

  2. TheMostLikelyStory says:

    PS, you’re response would make for a good preface to a book titled “Chasing Truth, Catching Hell”. Get on that!

  3. […] the trial load on the prosecutors’ office. (Norm apparently loves going to trial. As he puts it elsewhere, “As a public defender, a client telling me, ‘I didn’t do shit!’ is […]

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