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?

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!