Jul 25, 2016 In the criminal defense battlefield, expect the unexpected
Soon after I began my criminal defense practice in 1991, I saw self-represented defendants who won despite themselves, well represented defendants who lost despite their strong defenses, and numerous defense boons of case dismissals when essential prosecution witnesses did not appear for trial and the defense successfully argued against a prosecutor’s continuance motion to get the witness to court.
I quickly rode the exhilarating highs of winning against the odds; the lower points of a judge’s or jury’s seemingly improvident ruling against us; and various scenarios in between. I have the battle scars to sow for it, and use them to my clients’ best advantage.
Criminal defense can feel like a free-fall from an airplane. So long as the parachute works, the ride can be exhilarating, although what awaits the defense on the ground is not always certain.
A qualified criminal defense lawyer feels at home in the courthouse, despite all its gladiator challenges. The lawyer must be particularly deft in his or her abilities and wits, because joining the lawyer on this mission is the client, who will often feel like a fish out of water and periodically want reassurance from the lawyer that they are not about to walk into a booby trap.
I work with my client to be ready for the possible booby traps. If the case comes out well for the client without having needed all that preparation, the preparation is much better than the opposite scenario. Hindsight is twenty-twenty, and it is no prize to have one’s head shoved up his or her ass when attempting to achieve hindsight about the present.
Behind every step of an accomplished ballet dancer are at least one thousand practice steps. The courthouse battlefield is the place to enter the ring skillfully swinging, not to be running under the tables nor in the garbage can nor septic tank.
Some potential clients are willing to factor in all this preparation in setting a price range they are willing to consider in hiring a lawyer and in paying for legal expenses. Some are not. That is understandable from the standpoint of one’s own financial, financing, and budgetary limits. However, just as a patient with an unexplained tumor would not wish to put his or her life in the hands of someone who claims to have learned medicine from a booklet in a Cracker Jack box, a criminal defendant might wish to consider the benefits of investing now in a strong defense, rather than trying to pick up the pieces of bloody flesh from a messy courtroom battle if the defendant proceeds and loses with an insufficient defense.
Even for Virginia misdemeanor cases, which permit a de novo appeal for criminal defendants dissatisfied with the District Court result, it remains important to be ready to enter the District Courthouse ring with fists effectively swinging, because the stakes can get higher on appeal in Circuit Court, including when the prosecutor will not agree to a defense election of a bench trial over a jury trial, when the prosecutor assembles a stronger strategy and stronger group of witnesses and evidence than at the District Court level, and when the defendant has entered a guilty plea in District Court upon the condition of waiving the right to appeal.
If a court case were cut and dried, then fewer unexpected turns of events would occur, and the cost of the defense could be better contained. However, if a criminal defendant wishes to maximize his or her chances of obtaining as much success as possible, the expectation of cut and dried should be replaced by the zeal to be fully and well armed for the occasion.