There is a common dilemma among criminal defense attorneys: what to do when you have a very tempting offer from the DA and yet you believe the State still cannot prove it’s case? It’s an extremely difficult position. Or is it?
As attorney’s we all know that trial is a toss-up. When you place a case in front of a jury, you never know what’s going to happen. As a prosecutor, I once lost a case wherein the jury came back with a verdict of “not guilty” and attached a handwritten note to the verdict form that said, “and we hope you’ve learned your lesson and never do this again.” What?!? Yes, it was clear that the guy had done it, but it was a classic case of jury nullification. On the other hand, as a defense attorney, you always fear that even though the State doesn’t have the evidence to prove the case, that a jury will convict simply based on emotion, public perception or sentiment towards a particular alleged offense. Hopefully, as criminal defense attorneys, we do our job and explain to the jury that these factors are not to be considered in their decision on the facts of the case….but, ultimately, we never know.
In our practice as criminal defense lawyers in Keller, Texas, we typically represent average citizens who have made mistakes. Sometimes our decisions are made easy when we have clients with criminal records a mile long and facts too egregious to advise our clients to trial. But when we represent the average citizen with no history, the decision on whether to go to trial can be a very difficult one. But, ultimately, you have to make a call and advise your client. I have found that the best way to handle this situation is the way you are supposed to handle this situation: make a decision, advise your client, but leave the ultimate decision up to the client. Remember, a citizen has a right to a jury trial. You may think that the offer is great and that there is no way that you’re going to beat it at trial. Make that abundantly clear to the client. After that, make it also abundantly clear that the ultimate decision is up to the client. To trial, or not to trial can sometimes be an easy question to answer. But when it is not, give it thorough evaluation, advise your client and then throw the ball into the client’s court.
It goes without saying, but it’s always good to hear, your client has a constitutional right to a jury trial and they should always know that no matter how much you might advise against it, it is their right to exercise should they choose to. Plus, no matter how bad you might think your case is, there is the added benefit that you holding the State to their burden in front of the citizens that they work for. We maintain the integrity of our judicial system by holding the State to that burden and there is no better way to reinforce that integrity than through a jury trial.
“To trial or not to trial?” It never has an easy answer, but it is always the question that you should be focusing on when representing your clients.
