Sometimes You Lose Trials

As much as every criminal defendant hopes to win their trial and prevail during their day in court, statistically that is not what happens. Local and federal state prosecutors all keep track of their “conviction rates.” Federal prosecutors have conviction rates north of 98%, meaning only 2% of all criminal defendants win at trial. State prosecutors also have conviction rates over 90%. While you have a higher shot at winning in state court over federal court, the odds are stacked against the criminal defendant each and every time.

Yet, many still elect to go to trial. Usually about 3-4 clients each year elect to go to trial with our Firm. Sometimes, because they are either factually or legally innocent. Other times, because the prosecutor cannot prove the case beyond a reasonable doubt. Sometimes, because the plea or not too much better than losing at trial. Or because the offer that the prosecutor is making is effectively the rest of the Client’s natural life, as morbid as that may be.

Always, in the weeks leading up to the Client’s final decision on plea v. trial, we spend a lot of time with the Client talking about what they’d like to do. The decision to proceed to trial or take the plea is the Client’s decision and the Client’s decision alone. While Firms frequently counsel the Clients on what to do and give their opinion, we generally don’t. We explain to the Client the benefits and the draw backs of going to trial and the benefits and the drawbacks of taking a plea. The Client always decides, usually in consultation with their family members.

After the final decision of plea v. trial, there usually is no going back. In federal court, if you dilly dally too much on your decision to take a plea, you likely stand to lose the 1 point for timely acceptance of responsibility that the U.S. Attorney’s Office moves for. The actual timeline on when the cut off is for that 1 extra point depends on the District where your case is pending, but the general rule is that it is “before the trial preparations begin.” While other attorneys have had clients in their practice that plead the day before voir dire, or right after the jury is sworn in, that has not happened in our practice. The 1 timely acceptance point could make years of a difference in the guidelines, so we know usually weeks before a federal trial if the plea is happening. State Court is a bit more of a wild card. On non-homicide offenses, the prosecutor sometimes comes through with a better plea deal while we are picking the jury, during opening statements, or even mid-trial. We never know why the offer gets better in state court, but it’s either because the prosecutor is having proof issues – their witnesses are missing, or the case detective is on vacation. Or they see us come in to Court ready. Trial bag in hand, pressed navy suits and a crisp white shirt. If the offer gets better, sometimes the Client elects to take it. Other times, the Client proceeds to trial to see what shakes out.

Yet, in some situations, the prosecution does not make an offer. This is frequent in homicide matters (both state and federal court) and in some high profile federal cases. When there is no offer from the Government, the two options that the client has is to either reach a deal with the Judge or to go to trial. Reaching a deal with the Judge is frequently called “pleading open” meaning pleading without a plea agreement. In federal court, you have to plead guilty to the entire indictment. In New York State Court, you have to plead guilty to the most serious charge, with the judge committing to what the sentence will be ahead of time. It is important to note that in both state and federal court the judges are bound by the statutory minimums and the statutory maximums in what to sentence you to. This is usually substantially worse than reaching a deal with the prosecutor, because there is no “deal” or “discount” or a plea to a lesser charge. The big benefit with an open plea is that there is also no appeal waiver (which is 99% a condition of the plea from the Government).

The other option the Clients have is to go to trial. With hope of either a full acquittal or a “not guilty” on some of the charges. Partial acquittals may be beneficial because they may 1. eliminate the mandatory minimum, 2. lower the maximum or 3. lower guidelines.  All these options may be better than an “open plea” or even the plea presented by the Government.

When faced with the option of pleading open and receiving a high double digit sentence, some clients elect to go to trial. Not because they have a shot, but because they cannot be voluntarily giving up the rest of their life without a fight. Unfortunately, that is the reality of our criminal justice system. The two benefits of going to trial in that case is 1. the client has a shot at winning, or partially winning, however small and 2. there is no appeal waiver and a lot more things go wrong with the trial than they do at the plea stage, thus having more avenues for appeal. The downside of going to trial is what is frequently called “the trial penalty.” Clients don’t get the three acceptance points and are frequently sentenced at the high-end of their guidelines, if not above the guidelines all together. Yet, clients elect to go to trial. Some get acquitted and others get partially acquitted.

We lost our last trial on a very high profile case. Not because we didn’t work hard enough, or didn’t put up a fight, but because the evidence was the evidence. While we are excellent trial lawyers, we are not magicians. The Clients whose cases we’ve beaten at trial, or the clients whose cases we got dismissed short of trial, will tell you otherwise. But, once again – we are not magicians.

What matters to me at the end of the trial (I’d like to say regardless of the verdict, but verdicts do matter) is how the Client feels about the work that we’ve done. After the guilty verdict was announced and the jury left, the Client hugged me and said – “the day you gave your summation was the proudest day of my life. No one has ever fought for me like that. You are my sister for life.” At the end of the day, that’s all that matters. Until we meet again, U.S. Attorney’s Office.