I have never lost a trial in the Coos County Circuit Court.[1] I’ve never lost an appeal in front of the Supreme Court of Idaho.[2] I’ve never lost a hearing in front of the International Criminal Tribunal in The Hague.[3] I’ve never lost a game of jai alai, either.[4]
Clever readers will have figured out the reason for my extraordinary winning percentages. Any attorney can use the same strategy. Attorneys who don’t go to trial have never lost at trial. Attorneys who don’t handle appeals never lose on appeal. I saw an attorney advertise once that he hadn’t lost a case in twenty years. I bet I know how long it’s been since he had a trial.
I represented a guy a few years ago charged with assault in the second degree, a Measure 11 sentence carrying a mandatory prison term of 70 months in prison. My client had gotten in a bar fight, and he won. He told me that he had been defending himself from the victim. I’ve heard a lot of explanations and excuses and evasions about criminal behavior, and I’m a pretty good judge of that sort of thing. I believed that this guy was defending himself. If so, he had committed no crime at all. But if he was guilty, he’d go to prison for 70 months. Or maybe 90 months for assault in the first degree; the victim had been badly hurt.
The DA offered him a plea bargain; plead guilty to assault in the third degree, and go to jail for six months. I don’t think my client deserved six days in jail, but I advised him to take the deal. There was a good chance that the jury would believe my client and set him free. But there was also a good chance they would believe the victim. And if there was even a ten percent chance of losing at trial, the plea-bargain was probably a better choice. I still lose sleep over that case, because I think that an innocent man went to jail. But I also think that my client was right to take the plea bargain. He’s been out of jail for years. If we had gone to trial, he might still be waiting to get out.
A good attorney will improve the chances of winning. But even with the best attorney, there’s a chance of losing, too. If there was no possibility of a conviction, the DA probably wouldn’t bring the case. So, in addition to improving the chance of winning, a good attorney will offer advice about whether to go to trial or take the deal. Usually a plea bargain is a certain shorter sentence instead of a possible longer sentence. But either choice involves some risk. Maybe the attorney advises the client to go to trial, because there’s a good chance of winning, but trial goes badly and the client gets a much worse sentence than the plea offer. Maybe the attorney advises the client to take the plea bargain, but it turns out later that the star prosecution witness has fled the country and the state could not have proved its case. Whether to go to trial or take a plea bargain is a tough choice. Whether to appeal, or seek post-conviction relief, or federal habeas corpus, is only a little easier. A good attorney can help you to choose, and can maximize your chances of a good outcome. But if you’re accused of a crime, or if you’ve been convicted and you’re filing an appeal, a bad outcome is a possibility. An attorney who tells you otherwise is selling you a fantasy.
[1] I’ve never appeared in Coos County Circuit Court.
[2] I’ve never filed an appeal in the Supreme Court of Idaho.
[3] I don’t think I could find The Hague on a map.
[4] And I have no idea what the rules are.
