Thursday, January 29, 2009

TRIALS: Habitual Problem

Many times during the course of the year I get appointed to the client who is charged with a felony which puts him/her in a more difficult position than usual. That is the habitual offender. Don't worry, I'm not asking for your sympathy for someone who has gone to the penitentiary at least twice already.

If a client is risking a sentence of 25-life on his current felony, what analysis should he/she be making in deciding to go to trial or plead guilty. That's tough, because juries are unpredictable, and the consequences devestating if the client doesn't prevail.

I have always tried to explain the consequences as thoroghly as I could to all of my clients faced with this dilema. Some heeded my warnings, some did not. Some were convicted and received moderate to lengthy sentences. Another was found not guilty. Even more resolved the case without a trial.

Of course it is ALWAYS the client's call whether to roll the dice at trial. But consider this: if you were offered 10 years versus the minimum 25 if you didn't prevail what would you do even if there was some question as to your guilt?

Consider two outcomes of previous clients: One client maintained his innocence in spite of a lengthy criminal record (including an acquittal for Capital Murder) and identification by the victim at the scene. With his record and the immediate charge of Aggravated Robbery of a Disabled Person, it was not outside the realm of possibility that this man could receive the upper end of the range. Yet, it was his call to go to trial and take the chance. The jury found him not guilty after the victim could not identify his booking photo as the man that attacked her. Did he do it? I don't know.

Another client consistently maintained his innocence against a six-year-old charge of sexual assault despite the overwhelming DNA evidence. He agreed to a sentence far less than the minimum which included 5 years of backtime in prison. Did he do it? I don't know.

There are others. A couple clients took their case to a jury and did not fare well. I won't discuss those here because they may be on appeal. Nevertheless, when a client is faced with those odds, they encounter a risk analysis none of us would envy. With the law resembling a three-strikes-and-your-out mentality, it pays for clients to learn their lesson early on that you really don't get rid of your past no matter how hard you try.

No comments: