July 11, 2005

Plead or go to trial

I am in trial. It certainly is not going the way my client predicted to me that it would. A wise federal p.d. once told me, "each jury trial is really three trials: the trial you prepare to do, the trial you do, and the trial you wish you'd done."

Before the next time I am in this situation, I am going to re-read Alaskablawg's latest post about persuading clients to plead. As he puts it,

"how much is it appropriate for defense lawyers to 'lean' on their clients to plead?"

Excellent question. I have been doing a spate of trials lately. Each case has had one or more serious vulnerabilties from a defense standpoint. For instance, I would count a Miranda'ed, admissible confession as a bad thing to deal with in trial, wouldn't you? And each case has had a determined, autonomous individual at the wheel behind it, exercising his absolute right to go to trial. So we go to trial, my client and me.

I wish I knew the answer to Alaskablawg's question, and I worry that I need to re-calibrate just how much I 'lean.' His post has me thinking back to the very worst thing I've done professionally: I had a murder client, and I didn't lean hard enough. Close to trial, the state offered my client manslaughter, maximum of 15 years, and I didn't lean hard enough on my client to accept it. We went to trial instead, and my client's predictions about how the trial would unfold didn't come true. This client is doing life now.

I'm tired. Back to the latest trial in the morning. Crimlaw's thoughts on Alaskablawg's experience, and tangentially, mine, are here .