Sunday, December 6, 2009

Five vs. Sixty

So I just finished a trial of a sexual assault of a child case. It was a hard case for everyone: the allegations against my client were bad enough, but also my client was facing 5-99 years or life imprisonment, the prosecutor had a delicate complaining witness, and the families on both sides had an enormous emotional investment in the outcome.

But it was a trial and a trial is a trial. The judge made rulings that cut both ways, the prosecutor argued that my guy was dangerous and needed to go away for a long time, and my guy (obviously) disagreed. What I wanted to talk about was plea bargaining.

I think most people fundamentally misunderstand plea bargains entirely. Like thinking that anyone who accepts a plea must be guilty. "If they weren't guilty they wouldn't accept a plea," they say. "I'd never plead to something I didn't do." Um...yeah. Come back and talk to me after you've walked a mile in my criminal clients' shoes. Plea bargaining is pretty adeptly named; it's a purely business decision. Sadly, getting swept up in principles like guilt and innocence sounds nice, but sadly for more than a few of my clients (and a disgusting number of exonerees), it's a luxury you can't afford.

The bottom line is this: you have decide if you're comfortable rolling the dice. If you are, then you go to trial. If you're not, then you have to take the deal if what the prosecutor offers is better than what you'd likely get from a judge or jury. Case in point: my trial last week. The final formal offer was 10 years in prison but we probably could've gotten 5 years. He took it to trial and the jury gave him 60 years. That's a spicy meatball!

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