The Threat of a Trial Can Often be More Valuable Than the Actual Trial

Author: David A. Martella
Date: December 15, 2022

Fictional crime movies and television shows always seem to end with a dramatic courtroom scene. A dashing attorney will come running into the courtroom with a newly found witness or document that exonerates the wrongfully accused defendant. Or the defendant’s wife will suddenly confess on the stand that she is the real killer. People watching those movies remember the triumphant final moments. What they forget is that, in the previous 90 minutes of that movie, numerous other characters were eliminated as suspects, or worked out agreements to avoid prosecution. Those characters possibly had the best lawyers of all because they secured a guaranteed favorable outcome for their clients, without ever having to go to trial.

In some cases, the threat of going to trial is more valuable to a client than actually having the trial. For example, we once had a client charged with first degree murder, a charge that often results in a life sentence. Through careful and lengthy negotiations, we secured a plea agreement that would cap the defendant’s sentence at 22 years, if he admitted guilt. With credit for good behavior and work in prison, the client could be released after serving 11 to 14 years. That is a long time, but not as long as spending the rest of one’s natural life in prison if the verdict at a trial is guilty. We explained to the client that the evidence overwhelmingly indicated he would be found guilty at trial. We could suppress some pieces of evidence; but the law did not allow us to suppress the bulk to the incriminating information about our client. Unfortunately, the client turned down that favorable offer and elected to go to trial. As we predicted, the verdict was guilty.

In this particular case, the threat by the client’s attorneys, to take the case to trial was more valuable to the client than actually taking the case to trial. Here’s why. When a serious crime happens, police officers and detectives swoop in immediately and gather up evidence. They package that evidence up and send it to the prosecutor’s office. Soon after, that the evidence gets also sent to the defense attorneys who can begin to analyze it and look for additional favorable evidence. Sometimes additional favorable evidence is there. Sometimes it is not.

The prosecutors, on the other hand, often don’t get a good opportunity to look at the details of the case early on – primarily because they are working on other cases they have to take to trial that week, or the next week, and the week after that. Despite often hearing that ‘the government has unlimited resources,’ reality is very different. Every prosecutor’s office has a limited number of attorneys. Sometimes case-loads for each prosecutor are modest. But more often than not, the prosecutor’s case-load is very heavy. If prosecutors took every case to trial, the criminal justice system would collapse.

We, as the client’s attorneys, have an advantage in being able to make an early detailed examination of the evidence received from the State, as well as other evidence that may be out there in the world. We also have the advantage of being able to speak freely to our client and get leads from him or her about other possible favorable evidence. So, in this particular case we are able to make predictions for the client early on that the State’s case was very strong against him, and the outcome at trial, despite the efforts of two attorneys or 200 attorneys, would be quite grim. When we sat down with the State to negotiate, they likely had not spoken to all of their witnesses. They were likely also concerned they might not get all their witnesses to court. It was clear to us in negotiations that the State had not yet watched all of the surveillance video that they had previously given to us. We were able to explain to the State things we identified as weaknesses in the State’s case. At that moment, during negotiations, the State had not yet gone through the case in enough detail to determine that the “weaknesses” we identified, were not all that “weak.”

Therefore, in a case where our client was possibly looking at spending the rest of his life in prison, we were able to negotiate a resolution that might have allowed for client’s release in 11 years. After many discussions with our client, he turned it down. So, then the State began to prepare for trial. As the State prepared for trial, they had detailed conversations with the witnesses. Their case got stronger in their view. They had detectives go back and look for new pieces of evidence. Their case got stronger. They consulted with experts regarding the evidence they already had. Their case got stronger. And the State was no longer interested in making the client a favorable plea offer.

Dealing with a criminal case is very much like a journey that begins the moment a client is charged or arrested. The trial is just one part of that journey. Much can happen along the way on that journey that can produce a favorable outcome. Often, the best opportunity to produce great result for a client happens long before any steps into a courtroom. It is important for attorneys to be attentive to their cases and recognize when those opportunities present themselves.