Readers know that my work as a criminal defense lawyer in Atlanta mostly involves federal prosecutions in courts here in Georgia and throughout other parts of the nation, if my clients need me in those locations. After 36 years of doing this work, I still believe that the hardest decision my clients need to make is the question of whether they should go to trial or if they should authorize me to try and negotiate a “deal” and then plead guilty. I am currently working on several such decisions, and the process made me want to write further on the subject.
I have posted previously about the vanishing species known as the federal criminal trial. Trials are down, way down, and there are many reasons. One main reason is that penalties for the past three decades increased. Furthermore, the rule-makers (i.e., the US Congress) gave more and more power to prosecutors and took more and more away from Judges. The result was that many attorneys felt overwhelmed and that feeling caused those lawyers to stop fighting and to begin looking for ways to avoid lengthy penalties that their clients suffered. In other words, some lawyers lost their fighting spirit. Don’t get me wrong, in many cases negotiating a deal is the best course of action, but the stiffening penalties led a few lawyers to simply lose the fire in the belly needed to take a case to trial.
Trials are extraordinarily stressful experiences for the client, his or her family, and the attorneys. The word “trial” came down from the ancient practice of “trial by ordeal“, which was “an ancient judicial practice by which the guilt or innocence of the accused was determined by subjecting them to a painful, or at least an unpleasant, usually dangerous experience.” The current version is not too much different. But, I always need to remember, it is the client who suffers the most from the stress and pressure.
One of the most stressful parts of a criminal trial is the unknown. Nowadays, we usually know most of what witnesses will say and what documents or other evidence will be used, but the full picture never really comes out until everybody gets into the courtroom. The uncertainty makes it hard on everybody involved.
On the other side of the equation, a guilty plea brings at least some certainty. Generally speaking, we have a good idea of the outcome, even though the specific penalty is up for debate. However, “giving up” is often very distasteful for me when I know we have some good defenses and answers to the prosecution’s case. In the end, of course, it is up to the client, but I always try to let them know that if they choose to roll the dice and take the case to trial, I am more than willing to fight my hardest to make the jury see the case out way.