It’s not uncommon for a client to tell me at our first meeting that they were wrongly accused and either want the charges dropped or to go to trial. Many times, the clients are fooling themselves. But sometimes, they either shouldn’t have been charged or were grossly overcharged.
That leads to the next question: what to do about it? It may seem obvious, if you’re believe you’re innocent, you’d go to trial. But the reality is very different. Clients face significant consequences for being convicted after a trial. In Kentucky, all trials are bifurcated and juries will decide both guilt and if needed, the appropriate sentence. But juries are not given the opportunity to sentence a defendant to probation and while judges may have the power to probate a defendant, they routinely follow the sentences handed down by the juries. In Ohio, the sentencing is entirely up to the judge, but this isn’t without its own pitfalls.
It is commonly understood that there may be a “trial tax” for going to trial and losing. The stated rationale is that pleading guilty shows a remorse for the offense but going to trial (and being convicted) shows that a defendant has not taken responsibility for their crimes. The usually unstated corollary is that the criminal justice system would grind to a halt if all defendants exercised their rights to a trial and that punishing defendants more severely after losing a trial rather than after pleading guilty encourages guilty pleas.
Usually, when a case is problematic for the government, the prosecution is aware of that and tries to resolve the case in a way that takes that into account. But while sometimes that will mean the case is dismissed, usually there is a plea offer. The plea may involve reduction of charges, reducing a felony to a misdemeanor, offering probation/community control/conditional discharge, or offering a relatively small number of years compared to what a defendant is facing. Sometimes that inducement is too great to risk trial for the client.
Everything in the criminal justice system is a matter of risk. There are no guarantees at trial and each person has a different comfort level with risk and the consequences of trial. Many times a client who may prevail at trial is still induced to plead because they are so scared of the consequences of losing at trial.
Only the client can make these decisions. At the end of the day, they are the ones with skin in the game facing the consequences. But an attorney can provide advice and prepare the client for whatever they are facing. And in this situation, having an attorney who is experienced in trial is essential to provide the client with insight as to how a judge or jury might perceive certain issues. Although it may sound surprising, there are criminal defense attorneys who haven’t tried cases or are afraid of trials. Without even consciously doing it, these attorneys often project their own fears and insecurities into the client’s decision-making process. If you believe that you are innocent or overcharged, it is essential that you consult with an attorney with a proven track record of trying cases.