Some cases are clearly slam dunk winners for my clients. When those cases come along, a decision needs to be made - you can either go to the prosecutor and say, "Here's why your case is a loser..." and hope they see it your way and dismiss it, or you can sit back and wait for the trial, and win it. The risk with tipping the prosecutor off is that it might give him an opportunity to fix the hole in his case, by finding an additional witness or modifying the charges, for example. The risk of waiting for trial is that (1) if the prosecutor would have been willing to dismiss, you have wasted months of valuable time preparing for trial and (2) you could possibly be underestimating the prosecutor's case and be shocked when you lose (and wish that you had tried to plea bargain.)
Some cases are clearly slam dunk winners for the prosecutors. I'm talking about caught on tape, full confession, and the three eye-witnesses are a priest, a rabbi and a nun. In that case, too, you can try to beg for a plea bargain. If it doesn't come along, you might as well go to trial. For example, if the prosecutor's only "offer" is seven years, and you think a judge might give somewhere between five and seven years after trial, it might not be a bad thing to go to trial. Some trials aren't even about trying to win, they're about trying to humanize your client. For example, I remember a case from my public defender years where a drug addict client stole some property from his employer. The trial wasn't about showing he didn't steal the property, it was just about showing the judge that he was a messed up kid who was now trying to get his life right - when he was inevitably convicted, the judge sentenced him to completing the drug program he had already enrolled in.
Most cases fall somewhere in between. Even knowing your evidence, and the prosecutor's evidence, it's hard to know for sure whether you'll win or lose in front of a jury. Maybe my client did something wrong, but had a good reason, or didn't quite do something as bad as the exaggerating complaining witness describes.
In these cases, we're usually working both angles at once: preparing for trial and trying to work a plea bargain at the same time.
I sat down with a client in exactly this position last week. We are thoroughly prepared for trial, and I think we have a decent shot at winning. I wouldn't call it a slam dunk, and I think a lot of it will come down to getting lucky with a good jury. But my client has decided that he would like to see whether the prosecutor will offer him a good plea bargain, so that he could avoid the risks of trial.
Part of plea bargaining is negotiating the worth of the case - I'm trying to convince the prosecutor that I could win at trial, so he's better off getting something out of my client as opposed to nothing. Another part of plea bargaining is convincing the prosecutor that my client has some redeeming qualities that make him worthy of an offer better than the standard offer.
So, I sat down with the client and quizzed him about his life, hoping to learn some redeeming qualities about him that I could share with the prosecutor. I already knew that he works "in finance." My initial impression was that he is just an overgrown college boy - he likes to drink and party, and that's about it. (Does everyone like how I avoided using the stereotype of "frat boy," even though that's what we're all thinking? Oh, I guess I just failed to avoid it. Oh well.)
But I figured there might be something more if I really dug. But, as it turned out, there wasn't much more.
"Do you do any volunteer work?" I asked.
"How would I have time to do volunteer work? I work in finance."
"Maybe you... donate blood?"
It was as if I was speaking a foreign language.
"Ok, how about a charity that you donate money to?"
I swear, he was looking at me like I had two heads. Surely he must not understand what I'm asking. Perhaps an example would help.
"You know, like, you hear about an earthquake in another part of the world and you donate $20 to the Red Cross or something?"
Silence. Should I try a different example? Something less global, more local?
"How about... at work? For example, maybe some woman at work has a son with a terrible disease and someone takes up a collection?"
Are you ready for his response? Are you sitting down?
"If he has 'some terrible disease,' I can't possibly see how I could get a return on that. He could die and I'd never see the money."
It was my turn to be silent. Really? He thought I meant a loan?
It's funny because when I was a public defender, I felt like my colleagues were much poorer, but much more generous - there was always a collection for someone or something somewhere. And I felt like my clients, also poorer, were also much more generous, at least with their time if not with their money. Many of my clients did some volunteer work - either at their church, at a neighborhood center, or at a program that had helped them.
But I see less generosity from my wealthier clients. I'm not sure whether that's the chicken or the egg. I suppose you could argue that they are wealthier because they prioritize saving over giving, working over volunteering. Or it could be that they're greedy jerks. Who knows.
All I know is that the best thing I could come up with to tell the prosecutor is, "One time he bought girl scout cookies from his niece."