May 27, 2016 Going to trial is the only way to know whether you will win, and the lawyer must fight like hell at trial and throughout the case
Going to trial for a criminal defendant can feel like a skydiver going into free fall. It can be at once exhilarating and scary, relying on the primary and backup parachute to do their jobs, but not being certain of the results with those parachutes. A trial win always is a rush. A loss then leads to sentencing, which again carries its uncertainties, particularly in Virginia, where jurors recommend the sentence, and the judge is left to “honor the democratic process” of juries and not disturb the jurors’ recommended sentence, or else to reduce and/or suspend part of that sentence to reduce unfair sentencing disparities or to take into account jurors’ inability to recommend any suspended sentence nor probation period, or else to recognize when the defendant opted for a bench trial and the prosecutor sought a jury trial, or else to recognize that plenty of jurors are simply racist, as are so many people in the general population.
With my clients who likely did violate the law, I sometimes tell them a variation of: “You took a risk with your behavior the day of the incident, and we now inevitably must take calculated risks in negotiating your case, and in planning for and executing any trial.”
Early on in my criminal defense career, great Denver criminal defense lawyer Lisa Monet Wayne, who graduated law school only three years before I but had been practicing criminal defense longer than I already, urged the criminal defense lawyers in a conference audience to dare to take more cases to trial. Whereas many prosecutors merely go by the lackluster book at trial –counting on a high percentage of convictions to come easily without needing to be creative — effective criminal defense lawyers have no choice but to make all their work their shining creative moments, including at trial, providing the jury and judge a compelling perspective on the case — often through memorably riveting storytelling — that will enhance the chance of an acquittal.
Lisa Wayne pointed out that in a rape case where evidence supports misidentification or prevarication by the complainant, the criminal defense lawyer may well need to ask the alleged victim identifying questions about the defendant’s penis. That approach of course just about always is a risk, because a criminal defense lawyer rarely has certainty that his or her client did not commit the crime. However, this is an essential approach for a criminal defense lawyer to have in the arsenal for a rape trial. For every trial, the criminal defense lawyer must have at the ready all weapons that s/he may need to use, and must know when and how to use each such weapon, and know when to return the weapon to its sheath.
With criminal trials and all trials, criminal defense lawyers need to take ownership of the evidence and law as best as possible. If my client is accused of possession with intent to distribute two or more grams of cocaine, I can pour out the contents of a sugar packet to show the jury how insignificant a gram is, and that there is reasonable doubt that the cocaine was for anything but personal use, which is a big difference for sentencing purposes. This sugar packet idea is another great inspiration from Lisa Wayne.
As great trial lawyer, communications teacher and storyteller SunWolf affirms in Practical Jury Dynamics, Lisa Wayne loves her jurors and they love her back. Essential for a winning criminal defense lawyer is to have compassion and caring for jurors, judges, prosecutors, opposing witnesses and everyone else. Why else would they want to do the same for the criminal defense lawyer and the criminal defendant who gets identified with his or her lawyer? Not to have compassion for everyone makes it harder for them to identify with the uncompassionate person, inviting all sorts of hazards. And lawyers must shed their egos if they want to win. When big-ego lawyers win, they do so despite their egos, and will win more cases if they will simply shed their egos, which of course is not always so simple to do.
When co-defendants are charged in a criminal case and do not get the same outcome in the case, the “Aw sh*ts” can take hold when one of the co-defendants gets a much better case outcome than the other when each of their cases looks equally tough to win. Recently, I was waiting for my client’s hearing to be called, and heard the prosecutor at a sentencing hearing address the concern of another defendant — who had entered a guilty plea — that his co-defendant had gotten his or her case acquitted or dismissed on the trial date. The co-defendant learned head on the potential power of proclaiming “not guilty”.
The unequal criminal case results for co-defendants might not even come until the criminal defendant challenges his or her conviction on appeal or other post-conviction grounds. Many years ago while waiting in the prison reception area to visit my client who sought help in undoing his decades-long robbery and felony murder sentence after already losing on appeal before I ever knew who my client was, his co-defendant walked into the prison reception room. I learned who the co-defendant was when overhearing him ask the guard to visit my client, and the co-defendant told me he had been released from prison after successfully challenging the propriety of his conviction, while my client still had a few decades left to his sentence. Here, both co-defendants went to trial, and still had radically different ultimate outcomes.
A criminal defendant needs a lawyer who will fight well in trial. Yes, the lawyer must also have good case negotiation skills. However, the lawyer who knows how to prepare for and fight in trial does not sweat during negotiations, negotiates better because s/he backs up the negotiations with the threat of possibly winning at trial, and does not get caught with his or her tail between the legs when the prosecutor does not agree to an offer that will obviate a trial, or when the client rejects the lawyer’s advice to plead guilty.In fact, a great trial lawyer gets a rush upon learning that the case will be a trial.
What is the most exhilarating part of being a criminal defense lawyer? Trials. Trials must be well-prepared and well fought; that is a given. Those meant for trial work will feel invigorated rather than exhausted by the battle.