When I first started practicing criminal defense back in the early 80’s
the laws were tough but they left a lot of discretion and wiggle room
to get a good result even if the prosecution was being especially hard
on the case. As the years went on our population grew, the amount of people
committing crimes grew, and legislatures everywhere enacted laws making
penalties greater for criminal acts. The public grew more and more tired
of crime and violence and so the legislatures could get these laws through
easily either by enacting legislation or by interests groups putting initiatives
on the ballot that were easily passed.
There were no organized groups representing the rights of the accused in
the legislature and there were no real blue ribbon committees that helped
to enact laws that were fair to society in general. As the television
medium and the internet grew crime became more highly publicized and the
public’s mindset shifted from the rights of the American citizen
accused to the question of, “How can we get tougher on crime?”
Unfortunately the public don't realize until one of their sons or daughters
or relatives is charged with a crime just how onerous and tough the system
can be. Once upon a time, if you didn’t like what the prosecution
offered you could maneuver yourself into a good court room and have a
jury trial on the case. Even if you lost, the judge had the opportunity
to see the real facts over a period of a few days and could impose a lesser
sentence. As a lawyer, I have done that several times: When I knew that
if a judge really had the time to hear all of the facts and not just a
brief few minutes in a chambers conference that they would agree that
my client should be treated in a more lenient manner.
The other problem with doing that today is the threat by the prosecution
of adding enhancements and allegations that the judge has no power to
suspend, stay, or dismiss. The .53 allegation is a good example of this.
When a firearm is used in a gang case if the prosecution adds the .53
allegation it automatically adds several years(10, 20, or 25 to life)
to a sentence and the judge has absolutely no discretion to remove it.
The prosecution’s position is that even if they realize it is wrong
after putting it on the charging document, they have no power to remove
it either. The bottom line is that the cards are all stacked against the
accused and the threat is that if the accused doesn’t take a deal
it can result in the total destruction of his or her life by an extremely
long-term imprisonment. I don’t care how good your lawyer is, there
is a lot of this that nothing can be done about.
A good lawyer can always make a difference but you as potential clients
need to understand that you had better be prepared to make good decisions
that could involve more time than you would like, and you need to make
these decisions quickly. If you decide to roll the dice and go to a jury
trial you need to fully understand what you are facing and you better
hope your lawyer is good enough to maximize your chances for a good result.
You must immediately do what is called a “risk/benefit analysis”.
This is an analysis where you review all of the evidence against you,
understand it totally, and have a lawyer capable enough to tell you what
the most likely result is going to be. If you meet your lawyer the first
time at the Readiness Conference and they tell you to take a particular
deal, it might be the right advice. The problem is that you really don’t
know that. You may not trust your lawyer and frankly, your lawyer may
not be educated enough on the facts to know if the offer can be improved on.
A lot of times the client might say, “I could have done just as good
with a public defender.” That could be true. So when you hire a
lawyer, you should not expect that lawyer to work miracles. You should
expect that lawyer to, number one, buy time and review those facts thoroughly,
and see if there is any way that things can be maneuvered to get you a
better deal. You might not understand this, but this is the essence of
what a capable lawyer does. A really talented, skilled, and experienced
criminal defense lawyer can see exactly where the case is going to end
up. A good criminal defense lawyer does this by interviewing the client
thoroughly and understanding who this person is and how the system will
view this individual. Furthermore, the capable lawyer understands the
facts enough to quickly assess exactly how they are going to look when
presented in court. A lot of times, defendants will have a problem with
their lawyer because they think if the lawyer says that they cannot do
any better that the lawyer doesn’t have the confidence or the skill.
Trust me, if you have hired a very good lawyer, that lawyer would like
nothing more than to go to court and kick some you-know-what on your behalf.
When they tell you that the deal is not going to get any better, you need
to listen to them.
The most important thing that you should take out of this article is that
the game has changed. Try to build a good relationship of trust with your
lawyer. Obviously there are lawyers out there who care and there are lawyers
out there that just don’t seem to care. But if you have a lawyer
who cares, don’t mistreat and abuse that lawyer. Listen to what
they have to say and especially listen to what you are facing if you turn
down an offer that you don’t like. You can always change lawyers
and if you don’t like your lawyer’s advice and if you family
has enough money to hire capable counsel chances are the deal will not
get worse. A good lawyer is able to get enough time to assess the situation
and make sure that you are making a good decision either way. But with the
three strikes laws, the firearm and other enhancement laws, the one-year prison priors and
the five-year prison priors, you can’t afford to play Russian roulette
with your life.