"You got to know when to fold, know when to hold em, know when to walk away, know when to run . . . you never count your money when you're sitting at the table, there'll be time enough for countin when the dealin's done" (The Gambler by Kenny Rogers). This is great advice at the poker table and when realisticially evaluating a criminal case. Some cases shouold be fought until dismissal and others require the pilgrm approach-an early settlement.
Havinig been trying criminal cases just several weels shy of thirty-five years, I am very aware that in order to stay in shape as the best trial lawyer possible in terms of keeping sharp, learning new tricks and maintaining a reputation of excellence, I am very well aware that it is still absolutely essential to constantly try cases. Trial law is like a ladder: you can go up or you can go down but it is almost impossible to stay in one place.
While I stopped keeping win/loss statistics more than twenty-five years agoo, I am reasonably certain that during my first fifteen or so years of practice, I was probably winning more than three quarters of my criminal trials, a percentage to be proud of since the Queens county district attorney generally boasts of close to a ninety percent convcition rate. About twenty years ago, I started accepting court assignments of homicide cases, almost all of which have been slam-dunks for the prosecution. Since finding cases to try that presented an intellectual challenge (and a learning experience) had become extremely difficult, I decided that to continue growing as an advocate that I would have to look for advrsaries who were the best trial alwyers to be found. That is why I joned the "homicide bar" where one can find prosecutors and defense lawyers who ove their profession and excel at trial advocacy because they work hard at being the best there is.
Ironically, since I began trying homicide cases, I have found that the quality of the plea offers that I receive in all criminal cases seems to be getting better and better. However, I alsoo recognize that the tryability and likelihood of a defense prevailing in almost all of the homicide cases presently pending in Queens county is getting worser and worser. Statistically speaking, based upon the facts and circumstances surrounding most Queens murders, the prevailing probability of a defense win is somewhere between slim and none. It is a widely known secret among elite trial lawyers that district attorneys prefer to dispose of all cases, including homicides, through negotiated settlements commonly known as plea-negotiations or "copping a plea." This both punishes the defendant, albeit with a reduced sentence, and at the same time keeps the number of trials necessitated in the criminal and supreme courts to an almost manageable level. It avoids the need to triple or quadruple the size of the courts, the prosecutors' offices and the publicly underpaid attorneys who represent the majority of criminal defendants in most courts around the state.
I recently finished a perfect example of a perfect case to resolve via negotaited plea. The defendant, a former burtcher, and his wife were in a long-term disaster of a marriage. She was happy with the marriage and especially did not like the fact that the defendant seemed to like to drink too much and request sexual favors without bathing or brushing his teeth. It is surprising that she never complained of domestic violence. It might have saved her life.
Her last evening in this world occurred during an argument about his physiological desires that need satsifying that was overheard by a sub-tenant who rented a room from them. He heard screaming and him telling her that he would smack her if she refused him. She said to go ahead (ouch). He then threatened to kill her if she did not give him sex. She told him to go for it, a fatal and foolish mistake as it turned out. It only took about five seconds to choke her and crush the jugular veins and carotid arteries, thus stopping any blood flow to her brain. Death by strangulation probably occurred in one minute, two at the most. The second witness was their daughter who was going to testify that Mommy always got her ready for school except for the next day. That day, Daddy got the kids ready. When the daughter passed by the parents bedroom and saw Mommy's feet sticking out of the blanket she asked if she could kiss Mommy goodbye and the defendant told her "no because Mommy is sleeping." Nobody ever heard from Mommy again. There were a bunch of other witnesses as well, about twenty-five in all, but you should have the general picture by now.
About a year later, some body parts were found that had been neartly disarticulated, much as might be done to the carcass of an animal that was slaughtered and sold in a butcher shop.
Facing the enormity of what he had done was probably tougher than strangling his wife, done in the midst of an emotion charged argument. As the jury was being brought in, he wisely decided to accept a rather beneficial plea bargain that meant that he would be able to look forward to getting out of prison in another fifteen years or so as oppposed to his serving a certain life sentence with a definitie minimum of at least fourty years or death in prison, whichever came first. He made the right decision.
The lesson is that when a skilled, talented lawyer tells you to take the plea, you will almost always be best off if you follow his advice. He has been there many times before. If you do not believe him get a second opinion. Betting against the sound judgment of an expereience trial lawyer is never a good bet.