Sunday, January 11, 2009

To try or not to try

In just the past couple of days I have read blog posts from my colleagues, Mark Bennett of Houston and Brian Tannebaum of Miami, about the decision to take a case to trial.  I tell every client who walks into my office that I prepare each and every case as if it's going to trial.  Now, at some point down the road my client and I may decide that the case is more appropriate for a plea -- but if you start off trying to work the best plea, you are guaranteed a conviction.

Here's the math...if you decide to plead a case, there is a 100% chance of a conviction (since a deferred without a nondisclosure is the same as a conviction); but, if you take that case to trial, you have a chance, no matter how small it may be, of an acquittal.

As an aside, in Harris County, a citizen accused of a first DWI is likely to be offered ten (10) days in jail with no fine, time served and a hefty fine or 12-18 months probation.  Taking any of those offers leaves a citizen branded as a criminal for life -- no expunctions, no non-disclosures, nothing but a permanent record of a criminal conviction.  Take that same case to trial and, in the event of a conviction, the punishment won't vary by much.

I've told many a client after our first appearance not to worry about how bad the case may look -- all that's in the prosecutor's file is his evidence - offense report, accident report, photographs, breath slips, DPS forms, videos, etc.  Once we've seen what the state has, it's our turn to put together evidence - and that's when the case gets interesting.

Of course there are no guarantees in the criminal courthouse -- but then, there aren't any guarantees in life, either.

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