Saturday, April 3, 2010

Fighting a rear-guard action

The other day I had a conversation with a colleague who's still relatively new to the defense bar. My colleague had a client charged with driving while intoxicated with a child in the car -- a state jail felony. The defendant had a job and a family. The facts were bad and it was likely that a jury would have convicted him.

My colleague was trying either to get the client probation or at least a reduction to a regular DWI (it was not his first DWI charge). The prosecutor, however, insisted on jail time and when my colleague "threatened" to set the case for trial, said that she would seek to enhance the charge and put the client in the penitentiary.

My colleague was distraught about the effect that incarceration would have on the rest of the family.

In response I told my colleague that sometimes our job isn't to get dismissals or acquittals for our clients. Sometimes our job is to limit the damage of a conviction. Whether it be through character reference letters, sentencing packets or the testimony of family, friends and treatment providers, sometimes the best we can do for our clients and their families is to lessen the blow.

In the end the client took the prosecutor's offer rather than rolling the dice at trial.

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