Praised be my clients — amounting to the vast majority of them — who do not rush to plead guilty in an effort to avoid worse sentencing exposure in the event of a trial loss, than from pleading guilty. By the time my clients and I discuss settlement negotiations, usually a strong relationship of trust has developed between us where they take into serious and strong consideration all advice I give about all aspects of their cases. By my clients not rushing to plead guilty, they help to better assure being satisfied with their decision whether to go to trial or settle the case, and in so doing, they reduce the risk of saying aw sh*t over the outcome of their case.

A decision to plead not guilty or guilty is a serious one that requires deep consideration, including looking at the strengths and weaknesses of both parties’ cases, the chance that the other side will be fully or partially ready for presenting a strong and complete case at trial, and any overarching moral or political considerations that make some clients less willing to plead guilty no matter what. First, a criminal defendant must consider his or her goals, including but not limited to goals of avoiding a conviction, lengthy or any incarceration, onerous probation conditions and probation length, limits on driving and other privileges and liberties, violations of pre-existing probation and parole arising from being found guilty, getting convicted of more serious rather than less serious counts in multi-count prosecutions, loss of appeal rights, high litigation fees and expenses, harm to reputation and employability from a conviction, and harm in such other collateral areas as immigration status and convictions requiring registration as a sex offender.

If a client is charged with multiple murders and has been caught on video and by multiple live witnesses, with no foreseeable defense, I would typically urge the client to plead guilty to one count of manslaughter — a much less serious charge — if offered that by the prosecutor., and would be ready to invest many hours and even days to convince my client of the wisdom of entering such a plea. With many of my clients, though, the choices are not as stark as that, so I assist my client sin making an informed decision, respect their ultimate decision, and continue doing my best to get them the best possible results on their decision.

I take many cases to trial each year. This past week alone, I have had several litigation victories, one of which I address in today’s blog entry. Few trial victories are assured. When my clients ask me to tell them their chances of winning in percentages, I tell them that, rather than using percentages, it is easier for me to tell them if I think they have a strong, moderate, small, slim, or near non-existent chance of winning. However, I can only state that opinion with the information I have at hand. I do not know completely in advance what will happen on the witness stand from the opposing and defense witnesses, nor do I know completely what is on the mind of judges and jurors nor what they will do. Outcomes of trials involve human behavior. We cannot control human behavior, but can do our best to persuade others to be their best selves on behalf of our side and our causes. However, when a client is weighing whether to go to trial or negotiate a settlement, I have an obligation to tell my client what I think are the strengths and weaknesses in material aspects of his or her case.

One of my trial victories this week actually involved a partial victory and partial loss, thus illustrating the importance for criminal defendants to identify their ultimate goals in the litigation, seeing that trials on multiple counts do not always involve winner take all.

My client was charged in a Virginia General District Court with driving while intoxicated, reckless driving based on speed, and refusal to take a breath test to measure his blood alcohol. The officer testified at this bench trial that he stopped my client after pacing my client driving well above twenty miles an hour over the speed limit, and committing other moving violations. On my road to winning against the DWI charge, I successfully moved the trial judge to try the DWI and reckless charges together first, and then have a subsequent trial on the refusal charge. Such a trial severance is important for at least two reasons. First, when a judge or jury learns that the defendant refused to take the breath test at the jail, they may infer that against the defendant in deciding between guilt and innocence. Second, by severing the two trials, the defendant has an option to remain silent at the DWI trial but to testify at the refusal trial. Relevant testimony by the defendant at the refusal trial might include whether the police officer followed the statutory provisions for advising the defendant on the penalties for not taking the breath test, and whether the defendant then refused the test reasonably or not, actually agreed to take the test but was denied the opportunity to do so, or tried his or her best to blow into the machine with the officer’s nevertheless improperly listing insufficient breath as a refusal.

Here, I lost my motion to suppress my client’s arrest for DWI. I expected no adverse post-arrest evidence was going to be introduced against my client — and none was — for the DWI charge, so I could have simply proceeded to trial without first pursuing a motion to suppress evidence. However, that is too risky. What if, for instance, the officer testified that after my client was arrested, he started vomiting all over the back seat of the police car? Clearly, I would not want that in evidence. Moreover, I believe that sometimes a trial lawyer can have a better chance at getting a yes out of a judge after getting several no’s, whereby the judge might wish to spend some time reflecting on the advocate’s arguments before repeatedly saying no, no, no. Consequently, I prefer to hear a "no" to my motion to suppress evidence, and my motion to strike evidence/motion for judgment of acquittal, rather than to hear a no on my argument to find my client not guilty.

At trial, the police officer testified about the moderate odor of alcohol on my client’s breath after he came out of the car, about his interrupting the officer while being instructed on the field sobriety tests (submit to such tests at your own excessively high risk; nobody is required to take them, and even stone sober people can fail miserably at them), about his swaying at various points early on for the one leg stand, and about his doing a spin turn rather than taking small pivot turns in turning around during the one leg stand.

Probable cause to arrest requires looking at the totality of the circumstances. Consequently, countering the officer’s focusing on the negatives about my client’s behavior, I focused in cross examination on positives including:

– My client had no problem, and did not fumble, producing his license and registration to the officer.

– My client was cooperative with the officer.

– Although he exhibited some adverse clues on the one leg stand during the first few seconds, for the rest of the test my client did completely fine. Not only that, he counted "one thousand one, one thousand two" and so on, as instructed, in near complete unison with the second hand on the officer’s watch. I pointed out to the judge that we would not expect a DWI-guilty person to have such excellent time perception to be so precise in his counting timing.

– The officer did not bother checking my client’s ability to say a portion of the alphabet or to count backwards. Such tests would have tested the clarity of my client’s thinking and lack of culpability for DWI.

At the close of the prosecutor’s evidence, I moved the judge to strike the evidence/enter a judgment of acquittal. At that stage, the evidence must be viewed by the judge in the light most favorable to the prosecution, and the judge denied the motion.

The defense rested without presenting evidence. In closing, the prosecutor focused on my client’s driving behavior, and the ways in which he did not follow the officer’s instructions on the field sobriety tests. In my closing, this having been a bench trial without a jury, I reincorporated by reference my earlier arguments to suppress my client’s arrest and to grant my motion for judgment of acquittal, and, for the rest of my arguments focused on the totality of circumstances’ raising reasonable doubt galore.

I visually illustrated reasonable doubt by holding my hand very low, to below my knees, in describing reasonable articulable suspicion to stop my client’s car; holding my hand closer to my thigh in describing probable cause; and to my waist in describing preponderance of the evidence, which is the usual standard of proof in a civil case. In describing reasonable doubt, in near-spontaneous original inspiration, I stood up on my tiptoes reaching for the sky in describing beyond all doubt, and reached up barely less than that in describing beyond a reasonable doubt.

Is such visual description needed for a judge versus a juror? Why not? Judges are generalists who one day try civil cases involving preponderance of the evidence with fewer Bill of Rights guarantees in play than with criminal cases, the next day handle motions and scheduling, the next day handle desk work and bond hearings, and the next day do criminal trials. They need to be brought back to the zone of full criminal defense protections, and it never hurts to remind them that the criminal defense zone requires the prosecutor to meet the very high burden of proving the case beyond a reasonable doubt.

I appreciate that our trial judge carefully considered all the evidence and the parties’ arguments, and substantially detailed his thought process in reaching his ultimate verdict of acquittal for DWI (!) and guilt for reckless driving based on speed. For the reckless driving, my client received a suspended sentence after we first completed the subsequent refusal trial held the same day. The refusal trial went fast, after the judge reincorporated all testimony from the first trial’s motions and the rest of that trial into the refusal trial. We lost the refusal trial, but my client has the option now to appeal for a new trial, with a jury, on his choice of refusal, reckless, or both. The DWI having been acquitted, the prosecutor cannot appeal it, as that would violate my client’s right not to be put into double jeopardy.

It was a good day in court.