Saturday, January 2, 2010

Trials Extremely Rare

Thanks to Scott at Grits for Breakfast for his Texas 2009 Judiciary By the Numbers post I saw the 2009 Annual Report for the Texas Judiciary. What struck me as obvious always seems to strike some of my clients and friends as somewhat surprising - that trials are very, very rare. The vast majority of all cases are settled short of trial. In fact, overall only 2% of felony cases go to trial (only 1% for misdemeanor cases). The more serious the crime, the more likely it is to go to trial (judges, prosecutors, and defense attorneys all hate to go to trial on small-time state jail felony charges but generally relish interesting, important trials).

But that brings me to a myth I hear all the time from criminal clients: that going to trial costs thousands, tens of thousands, or even a hundred thousand dollars (and therefore is a good way to stick it to the Man). I usually hear this from court-appointed clients. It's usually coupled with the attitude of "I'm not taking nothing; they're going to have to give it to me" (note: notice they're not saying they're innocent of the crime, those folks are a different breed all together. These folks know they did it but have an axe to grind and simply want to weigh down the system). I don't know where they get the idea that trial costs so much. Sure - you can factor in the judge's salary, the prosecutors' salary, and court staff involved in putting on a trial (bailiffs and court reporter), but all those costs are fixed whether the court is in trial or not. In fact, trial has almost no bearing on those costs - some courts go to trial all the time, while others are hardly ever in trial, but neither seems to have a bearing on any of the folks involved.

The accused should only base his or her decision of whether to go to trial on a couple of things: 1) can the State prove they committed the crime? and 2) do they think they can get a better sentence from a judge or jury after a trial than whatever the prosecutor is offering by way of plea bargain?

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