Criminal Defense: The Game Has Changed "Big Time"

Posted By Bill Nimmo & Raymond Gomez, Attorneys at Law || 23-Jun-2015

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.