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Beware the “time served” illusion

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During my first year as a public defender lawyer, I arrived at the courthouse at my customary early time at least an hour before the judge took the bench, and at the courtroom customarily early. On my way to the courtroom with my ten to fifteen jailable traffic cases for the day, the prosecutor eagerly proclaimed: "Your client Joe Moxie in the lockup. Don’t worry about it. Time served!" Curious that he would say that, with his knowing that one of the key things I do in advising clients about plea negotiations and the advisability to go to trial is the availability of the prosecutor’s essential witnesses and evidence; maybe he just forgot whom he was talking to.

A few minutes later, the judge (long gone from the bench by now), all smiles, told me that my client in the lockup had nothing to worry about. Yow! Was this telepathy between the judge (a very nice man off the bench, but one with a judicial demeanor and intellect that made him unfit to be a judge) and the prosecutor (who seemed upstanding), or had some improper ex parte conversation gone on between the two as they grabbed their morning coffee? No matter for my client. I independently assessed his chances of winning at trial through talking with him and the witnesses and through assessing the evidence and case starting well before the trial date.

Time served is a code word for getting a jail release for those unable to make their bond before trial. Plenty of public defender clients do not — often cannot — even pay bonds that involve paying as low as $500 or less to the court or a bail bondsperson to get released. However, the cost of getting time served is to get a guilty verdict through a guilty plea or a guilty finding at trial. A suspended sentence and probation period usually accompany time served. Plenty of people then violate probation, making time served an illusion, just an interruption in the incarceration/caging process. On the other hand, plenty of times I have had success in avoiding probation violation findings and in avoiding incarceration for probation violations, by attacking the law and evidence, and by doing my best to show that the probation-violative conduct is now in the past and likely not t be repeated.

Particularly when the conviction is for a crime the judge believes is particularly serious, a probation violation occasioned by a new conviction can lead plenty of judges to impose a substantial portion of the suspended sentence, if not the entire suspended sentence, upon finding a probation violation. Ordinarily, appellate courts leave this and all types of sentencing decisions to the sound discretion of trial judges. See, e.g., Booker v. Virginia, ___ Va App. ___ (Dec. 18, 2012).

Consequently, I urge my clients not just to look at the potential active jail time in reviewing plea negotiations and sentencing guidelines, but to look at the potential probation length (and probation conditions) and potential suspended jail time, in addition to how a conviction will affect the person’s career, educational prospects, social future, and immigration exposure.

Criminal defendants are presumed innocent and have the right to go to trial. That is the default from which I discuss settlement negotiations with clients, backed up by a position of strength through a readiness and preparedness to go to trial.