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The trial penalty and how to avoid it.

A national lawyer’s group dedicated to protecting criminal defendants is, again, sounding the alarm about the threat that lawyers call the “trial penalty.”

The trial penalty is basically this: If you’re a criminal defendant and you elect to go to trial, you open yourself up to the judge sentencing you to the maximum sentence. If you take a plea bargain for a lighter sentence, you know what you’re gonna get when you walk in front of the judge.

The National Association of Criminal Defense Lawyers (NACDL) recently published "The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It," concluding that "[t]here is ample evidence that federal criminal defendants are being coerced to plead guilty because the penalty for exercising their constitutional rights is simply too high to risk."

This is nothing new.

In my books “Criminal Lawyer” and “Winning Criminal Trials: The Secret is Rattlesnakes, Cottonmouths and Poker,” I posit that the trial penalty works not because it scares the Defendant but because it scares the defense lawyer.

I say this because I believe many lawyers have deficient trial skills and it’s the lawyer who is worried about trying the case and losing. This causes some upset among lawyers, but the truth is there are lawyers who have mastered the art of the criminal jury trial and there are (many) lawyers who haven’t. In fact, I know of lawyers who have practiced law for over a decade and taken hundreds of criminal cases and plead every defendant guilty – and never tried a case in their career.

The emotional strain of representing a client who is facing life in prison, or worse the death penalty, is severe, but if you’re a criminal defense lawyer it’s a daily thing. Many lawyers push their clients to accept plea bargains because it’s way of avoiding the risk of having to try a case and losing, and all of the stress involved. They’re also afraid for their clients to know they don’t know how to win at trial.

The problem is these lawyers fall right into the psychological trap of the trial penalty. They’re as scared of the trial as the client is.

Now, let’s be clear: A lawyer’s job is to stand between his client and a prison cell. The lawyer’s job is to advocate for the client and to be the client’s hired gun in court. The purpose of this is to test the prosecution’s case in the flame of the fire of cross examination and confrontation.

A lawyer with deficient trial skills is like a gunfighter walking into the street at high noon without any bullets in his gun. How do you negotiate if you don’t know how to win?

Worse, many lawyers assume that since the client is guilty there is no way to win, especially when there is a confession. The only way to know this to test whether the prosecution can prove its case. Just because a client did the crime doesn’t mean the state can prove it. It’s the defense lawyer’s job to know if the state can prove its case. If the state can’t, the client walks free.

The trial penalty works because the anxious lawyer with deficient trial skills fails to test the state’s case.

So, how do lawyers and clients overcome the trial penalty?

First, never plead guilty at arraignment. Many lawyers take the first plea offer from the prosecution and bully their clients into taking it, saying, “This is the best offer you’re gonna get.” That is unethical and wrong.

Second, know the case better than the prosecutor and know the potential punishments. This is important because often the prosecution has charged the client with an offense higher than the actual events warrant. For example, the client is charged with murder when the offense is clearly manslaughter. In Alabama, a person convicted of murder faces up to a life sentence while manslaughter is maxed at 20 years. If you can’t win outright, a lawyer needs to know how to gun for a conviction of a lesser-included offense.

Third, every lawyer need to announce for trial instead of gunning for the plea bargain. The courts are overloaded with thousands of cases it can never try. Judges and prosecutors want – actually need – the plea bargain more than defendants and their lawyers because there are not enough days in a lifetime to try all of the cases on the dockets.

The system would implode if at every docket call every lawyer announced, “for trial, Your Honor.” Judges would flip out. Prosecutors would flip out. The entire system would grind to a halt. Prosecutors would suddenly get more reasonable with their plea offers to unclog the system.

Fourth, if a lawyer takes his client to trial (and it’s the client’s call, not the lawyers) and the client is convicted, the lawyer need to counter the “trial penalty” and argue at sentencing that the prosecution had offered a reduced sentence and now is prohibited from asking for a tougher sentence because the client exercised his constitutional right to a trial.

The trial penalty can be overcome if lawyers want to overcome it. It takes knowing how to win your cases and holding the prosecutions feet to the fire. Plea bargaining is a greasy slide which lawyers should know how to avoid.

(Required by Alabama law: No representation is made that the quality of legal services is greater than other lawyers.)

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