Jan 09, 2017 Criminal defense is war, and never for the faint of heart
Soldiers and street fighters battle without referees nor the expectation of referees’ presence. They fight in the law of the jungle.
As we approach four years of the buffoon-elect in chief’s White House tenure, I have low overall expectations of Trump’s upcoming nominees for scores of upcoming federal trial and appellate judgeships/referee-ships. At the state level, plenty of lawyers are not about to take a paycut from their private law practices for such work whereas others will jump at being judges, for reasons running from true devotion to public service to enjoying the trappings of the position.
The jury trial option can be attractive over a bench trial, because the ideal jury approaches the case with a fresh approach, is not jaded like a judge is, and is not constantly considering how to move back-breaking court dockets forward. Unfortunately, although a jury might often present a higher chance of acquittal than the judge-trial option, if the jury convicts, it will recommend the sentence without the benefit of knowing the voluntary sentencing guidelines, reading a presentence report, nor being permitted to recommend a suspended sentence, a probation period, nor community service nor counseling in place of active jail and a recommended fine amount.
All actors in the courtroom have their agendas and biases, whether that be the judge, prosecutor, jurors, or police witnesses. Expecting them to proceed in a desirable way can be maddening. Being delighted when they proceed in a desirable way is the better path for a winning warrior.
Over two decades ago, my great mentor Steve Rench had already given me the answer about dealing with difficult judges and other difficult people involved in my cases: They will not make an effort to rise higher than I give them trust to rise to; and a difficult judge or prosecutor is like a boulder on the highway, which we can either choose to move in the course of sustaining a hernia, or drive around.
As I have repeatedly said, a great lesson on this path is Russell Crowe’s Gladiator fighter, who beats the odds against the dirtiest, most heartless and bloodthirsty fighting, and becomes a hero through exacting gruesome bloodletting in defending his life and fighting for his team.
Criminal defense is war, and unconventional warfare at that. The kid gloves must come off in the ring.