Most people think that it is the defense lawyer’s decision whether or not a defendant pleads guilty or goes to trial. Wrong. That decision rests exclusively with the client. The lawyer’s job is to lay out all of the strengths and weaknesses of the case in order to allow the client to make an informed decision.
I have always believed that the most potent weapon a criminal defense lawyer has in his arsenal for his client is the ability to try a case (I have well over 300 trials under my belt).
The decision to “plead or not to plead” can be extremely excruciating for a client.
Recently I and my client experienced that difficulty in his making the decision when a prosecutor surprisingly made a very reasonable offer just before trial. The only offer made by a prosecutor to that point was 6 months in jail on one charge, and 90 days in jail starting right after the 6 months on a 2nd charge. Along with that came an 8 year driver’s license suspension. The decision was easy with this offer on the table-TRIAL. Then, a different prosecutor offered NO jail time with a 2 week inpatient program and 2 years of probation. The RMV, however, would still suspend his license for 8 years.
To make things more difficult to decide, the case is pretty strong for us. It is not the greatest case for the government, at trial.
Oftentimes a client will ask for odds on the likelihood of winning or want to know my opinion of the percentage of likelihood of our winning at trial. I can’t give odds or percentages. Neither can any lawyer because it is dishonest malpractice. How can I give odds when I don’t yet know the jury members or how the witnesses testify or how the judge instructs the jury? I CAN tell you that I am very confident, and that the case is very triable.
So what to do? Do you take the deal and avoid jail time altogether and have your license suspended for 8 years ? Do you take the risk of going to trial risking jail time AND the license suspension in order to try to be found not guilty and walk out completely free?