As WWII was coming to a close, British Prime Minister Winston Churchill, during a meeting with Soviet Leader Joseph Stalin, cautioned Stalin about considering the views of the Vatican during the post war division of Eastern Europe.
"How many divisions does the Pope have?" Stalin sneered in reply.
If trials are wars, then the events and time leading up to the trial are filled with the same angst, posturing, intelligence gathering, and diplomatic entreaties that nation-states engage in right up to the moment the guns begin to fire (or the jury walks into the room).
In both instances fear plays a role in the outcome. Nations capitulate in the face of armies massed on a boarder. Defendants plea rather than face the enhanced consequences of a guilty verdict.
The trial lawyer must manage his/her own fear as well as the fears of the client, much like the general before battle or the President/Prime Minister must mange both their personal fears and the fears of those they lead.
It's a lonely position when a person or a nation places their lives in your hands. Success is partly achieved by facing your fears. Preparation is the key to success. Sun Tzu famously wrote that every battle is won before it begins. So are most trials.
The jury trial is under assault. Prosectors over charge cases, invoke decades of minimum mandatory penalties and then make generous plea offers. The consequences of going to trial, they solemnly warn you, are great. Judges punish defendants who lose. It starts in misdemeanor court with simple trials and escalates in felony courts where the penalties can be as high as life in prison.
There is one and only one way to fight this attack. You must manage your fears, and you must ceaselessly and relentlessly prepare your case for trial. The more cases we try, the more times we stand up to the threats of the prosecution, the more times we file appeals and cite judicial and prosecutorial vindictiveness in unconscionable sentences, the more we preserve our precious right to trial.
Fight the good fight. And never never never surrender.
See you in court.
When you see something that is not right, not fair, find a way to get in the way and cause trouble. Congressman John Lewis
JUSTICE BUILDING BLOG
WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM. Winner of the prestigious Cushing Left Anterior Descending Artery Award.
15 comments:
Have you considered that the natural result of this kind of thinking is not the elimination of minimum mandatories, but rather the divestment of prosecutorial discretion, resulting in a much worse outcome for your client?
Mostly advice for the assistant public defender I think. Rich clients will for the most part not consider trial. Those are the best clients.
Sounds good, but, with the exception of prosecutors, every lawyer's obligation is to his or her individual clients, not the system and not our caseload. Stated differently, you can't sacrifice a client for the greater good.
Further, this isn't about putting aside our fears. Most of us can do that pretty easily. The real issue is what happens after trial if we lose.
BTDT
Well stated, Rumpole.
A good trial lawyer should embrace their fear the same way a professional athlete embraces theirs. It is not fear that should lead you to cower and shy away from a challenge, but fear that makes you perform at your best.
However, this rally the troops rhetoric sounds great on a message board, but we defense lawyers know that good pleas are almost always in the client's best interest. You should prepare each case as if it's going to trial, posture up, and be aggressive, but in the end, a great deal that doesn't result in a conviction or jail/prison time may be what we're after.
Try the cases that must be tried. Resolve the ones that should.
I've worked just as hard at getting a client a great plea as I have in securing a not guilty verdict, possibly harder. This entails taking good depositions, conducting a thorough investigation, and exploiting weaknesses in the state's case that the prosecution had not considered.
The previous comment about PD clients is spot on. I've had clients literally freeze in fear at the very mention of the word trial. The clients - private, paying clients - who desperately want trials? Those are the problem clients.
"Never Plead Guilty" - Jake Ehrlich
If everyone is so concerned with standing up to fear, why does everyone post 'anonymously'. Or why are so many afraid to attach their names to their opinions. This does not speak well for the profession here in South Florida.
Blackberry is. The best phone if you work for a living. The company is coming back. Obama uses is for god sake buy buy buy
Innocent client is charged with L and L with 25 year min mand.
ASA knows client is innocent but, kid said it happened so, they go forward in "good faith."
ASA offers felony battery with no sex offender registration. Client takes it. Wouldn't you?
Was justice done?
Bailiff Jorge Durand died
Why doesn't SECRET JUDGE use his name?
632...........I assume your question is rhetorical, but I'll bite.
If an ASA believes someone is innocent, they CANNOT go forward in "good faith" regardless of what the evidence is. So, you're hypo makes no sense.
Justice is NEVER served when an innocent is convicted.
BTDT
11:00 am. You are ignorant.
Do you ever really know who is telling the truth? Really?
When I said ASA knows client is innocent... I assume he is not sure.
Point to make is that innocent people take deals to avoid huge min mands. Don't they.
"Never plead guilty." - Horace Rumpole.
3:05...........No reason to get personal or start name calling.
An ASA shouldn't be taking a case to trial unless he is convinced beyond a reasonable doubt (my definition of "sure") the defendant (not client)is guilty. Period.
And, yes, you can be convinced beyond a reasonable doubt.
BTDT
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