I can barely keep myself from protesting right then and there, when certain Virginia judges explain to unrepresented marijuana possession criminal defendants that entering and successfully completing the often Trojan horse of a 251 drug possession disposition program gives them a chance not to have a criminal record, when much of the rest of the world will consider such a disposition to be a conviction.

Such a judicial explanation disserves defendants more than it helps them. A qualified lawyer is needed to advise a defendant on the defendant’s prospects of winning the case, whether to seek a 251 disposition and whether the judge assigned for the trial is as likely to give a 251 disposition upon a guilty finding at trial as with a decision by the defendant to do the 251 program without a trial. Getting a 251 disposition ordinarily involves an admission of guilt or finding of guilt, unless the judge will skip that and simply enter a finding of facts sufficient to find guilt for marijuana possession.

I digress before even getting to the subject of today’s blog entry.

When potential clients meet with me about their cases, I invariably give them a list of things for them to do to help the negotiation of their cases and any possible sentence. For marijuana possession cases, I advise to stop using illegal drugs and to get weekly clean urine/drug tests once the urine is clean of illegal drugs, to enter a drug education program, and to do a minimum of 24 hours of documented community service. Sometimes I also suggest doing some documented self-help meetings, and to seek a psychologist’s positive prognosis. Completing a drug program with random drug testing, and doing 24 hours of community service is the equivalent of the 251 requirements, except that a 251 disposition also requires a six-month driving suspension.

It is important for my clients to pace themselves in handling my suggested assignments, to deal with competing demands on their time.

In a recent victory, through an agreed case dismissal, my client overachieved with my suggested assignments, by doing many more than my suggested hours of community service and suggested self-help meetings. Criminal defendants who go out of their way relevantly to improve themselves post-arrest and pre-trial can stand head and shoulders in the minds of prosecutors and judges over the great percentage who do little to nothing in that vein.

My battle for my criminal defense clients is teamwork. In this marijuana case that led to a dismissal, I fully prepared for trial battle and discovered a major weakness in the prosecution’s case that might or might not have gotten us an acquittal. Whether and when to disclose such weaknesses in negotiations depends case-by-case, and includes trusting my gut. Here, I did not reveal this weakness, and instead saw us go from a prosecutor with no interest in any result other than a marijuana possession guilty finding, to a subsequent trial date with a prosecutor more open to alternatives to a marijuana guilt in marijuana possession cases, and with my ability to show that my client already had gone above and beyond what even the 251 program would require.

With all the much more severe criminal charges that regularly go to court — including rape, robbery and murder — one might ask how big of a deal it is to prepare for and defend a marijuana case to the hilt like this. Such a viewpoint should be limited to prosecutors, police and judges, and to as few of them as possible. I defend all my clients to the hilt. The criminal justice system at best masquerades as more just than it is. In the American criminal justice system, countless presumed-innocent people are caged on no bond or excessive bond pretrial; too many acts that should not be criminalized are criminalized (for instance marijuana, prostitution, and gambling); too many innocent people are convicted or plead guilty to avoid even worse outcomes; too few procedural protections exist to put a criminal defendant on a level playing field (including stingy Virginia criminal discovery rules, and all sorts of statutory, rule and case decisions permitting the introduction of too much damning evidence that should never see the light of day at trial); and convictions even of misdemeanor varieties can be devastating for liberty, careers, reputation, police radars, and immigration status and benefits, with subsequent convictions risking harsher treatment than first convictions.

The rush of each victory is great. It helps soothe the bruises of the defeats, as well.