Conversations with My Frustrated Friend: Jury Trials and Plea Bargains

speedy trial PA“You can’t tell me you don’t see this s**t every day. I mean, damn man, don’t you just want to flip the f**k out?”

FF is on a roll, and I know it’s best to let him get it out of his system before attempting to respond.

“I read an article about the system… ”

FF can be emotional but he also makes valid points. The ‘System’ can often be a frustrating web of procedural proclamations and political expediency.

But this time, there was something in his tone of voice that caused me to listen more closely than usual when FF goes on tear about something he read.

“I read that like, 95% of all the people serving time in prison resulted from plea bargains. It said because of the plea bargain system, none of them got a fair trial.”

If one interprets “Fair Trial” in it’s most literal sense– trial by a jury of one’s peers– then he’s probably right. Plea bargains are ingrained in the system. The costs of having a jury trial for every single case before the courts would be staggering. The caseload alone would be a mountain of paperwork. This motivates the prosecution to offer plea bargains. The job of the defense attorney is to negotiate the best possible outcome for the defendant.

Sometimes it’s like being Secretary of State standing between warring nations, but more often than not, that goal–a favorable outcome– is accomplished by civil negotiations, and the only way to accomplish that is by maintaining a healthy relationship with the police and the District Attorney, one that demonstrates respect.

Defense attorneys are often criticized as if we created this system. I became a defense attorney after spending over half a decade on the other side of the aisle and believe me when I tell you, the State has resources at their disposal should the accused want a jury trial. Plea bargains are a way to put it behind them without the additional costs of a jury trial and even more compelling for the accused, the potentially harsher sentences that will result from a guilty verdict in a trial.

There’s no doubt the “System” has increasingly favored the State via the potential negative ramifications of a trial by one’s peers. Three strikes laws, mandatory minimums and the like make taking a plea bargain very attractive in the majority of cases, sometimes even when guilt is not 100% certain.

Sometimes, and believe me I hate this part, there is no compelling evidence to support a not guilty verdict. Often, simply stated, the police and the prosecution have more than enough evidence to convict a client. In cases like these it makes no sense to waste time and resources fighting an unwinnable fight and potentially exposing the client to additional sanctions. A “plea bargain” in a situation like this can result in reduced charges and/or a less severe sentence.

There has to be some evidence that casts a reasonable doubt on the prosecution’s case, and it has to be provable enough to convince 12 people. Sometimes the issue is not guilt or innocence, but rather whether evidence may have been collected illegally or whether there was a procedural breakdown. We can sometimes preserve the legal issue for appellate review while still reaping the benefits of a plea bargain.

Imagine the hours of fact checking and investigation that is involved. The State has already made their case. They already have their evidence. They will just present it in court. The defense must take all that information and find any flaws, any discrepancies that would raise a reasonable doubt.

A decision about whether to proceed to trial is more than just a desire to ‘fight the good fight.’ Its based on a professional assessment of the quality of the evidence, the credibility of the witnesses and, quite frankly, the likelihood of success. That said sometimes there are cases that simply must go to trial. The particular facts and circumstances of a client’s case may make it impossible to plead – such as if a client is on probation or parole and a plea of guilty will violate their supervision. Or perhaps the potential sentence is simply too long for a client to consider willingly accepting without ‘going down swinging.

Despite what you see on TV, much of what we do is research, and since an experienced attorney can usually pretty quickly tell when the evidence points towards a guilty verdict, and then deciding whether a case is worth fighting or negotiating. That may seem cold, but it’s a reality. The “System” is real and an effective attorney is prepared to deal with that.

This is why I show respect for those I face in the courtroom. It allows me to effectively bargain, to reassure my clients and get them through a system that, without experienced guidance, can be truly frustrating and frightening. Without a doubt, plea bargains are a critical and necessary part of the criminal justice system. Are the results always “just?” Of course not. Bear in mind, a plea bargain does not end the case, and an aggrieved defendant retains appellate rights (limited, unless otherwise waived) and post-conviction rights.

It’s important to me to keep in mind, many of the people who contact me are not criminals. They are people who have made a mistake, or maybe even a couple mistakes, but they’re not really criminals. They may have simply had a momentary lapse of judgement, or they may even be innocent and simply in the wrong place at the wrong time.

This is why I have been an advocate for marijuana legalization. I cannot see the justice in locking people up for this. I would rather not have the business when it comes to making it legal.

I’m against Mandatory Minimum sentencing because it takes away the common sense of prosecutors, invalidating their discretion,  and demeans the Judiciary’s role to little more than a rubber stamp.

Yet despite all this, I must represent my clients to the best of my abilities, and unlike my rather excitable Frustrated Friend, I often have to put my personal feelings aside to effectively accomplish that goal.

Such is the “System” of Plea Bargains.

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