December 16, 2019 at 5:00 AM

Unbeknownst to most of the public, despite what they see on television and in movies, only a very small percentage of criminal cases end up being resolved in an actual trial. In fact, the criminal justice system, in any U.S jurisdiction, would collapse under the strain if each and every case resulted in a trial. In the vast majority of cases, the defense attorney and district attorney make a deal in which the defendant, often in exchange for a plea to a lesser charge, pleads guilty and is sentenced or fined either according to the terms of the agreement or at the discretion of the judge. Often the actual culpability on the part of the defendant is essentially a non-issue as the People, represented by the District Attorney or more accurately an Assistant District Attorney, typically have a solid case against the defendant, who more often than not, has a lengthy criminal record.

This is certainly not to infer that there is anything inherently wrong with plea bargains; they are often a good idea for both the defendant and the DA and often some semblance of justice is served. Additionally, in the event of a plea bargain, neither the People nor the defendant must suffer the expense and uncertainty of a trial. Most criminal defendants are represented by a public defender (PD) or an attorney assigned by the court and paid an hourly rate significantly lower than he or she would typically command from a self-paying client. In some jurisdictions, as a consequence of very low pay, many public defenders or assigned attorneys tend to be young and relatively inexperienced. It’s important to recognize that most public defenders and assigned attorneys are competent, zealous, hardworking men and women who do their best to serve their clients; but they are also often underpaid and overworked.

As mentioned above PD’s generally have a heavy workload and often don’t even meet with clients prior to their first court appearance and again, in the vast majority of instances, their cases are disposed of by way of a negotiated disposition or a “deal” with the DA. Defendants often complain that their lawyer hasn’t visited them in jail or returned their phone calls – they often feel neglected and forgotten.

Regarding the plea deals mentioned above, a problem arises in cases where the issue of guilt or innocence is not so clear-cut and/or when the defendant has no prior criminal record. In many of these types of cases the defendant, often a minority, cannot afford a private attorney and must avail himself of a public defender who may lack both the desire and experience to force the People to prove his or her client’s guilt beyond a reasonable doubt.

The public defender’s conversation with his client often goes something like this: PD: I spoke with the DA handling your case and he’s willing to let you plea to a misdemeanor and drop the felony charges and you’ll just be looking at three years’ probation. DEF: But I told you I’m innocent – I didn’t steal anything; I wasn’t even there! PD: I understand that, and I believe you, but the DA has a witness and if we don’t take the offer and we lose at trial you are looking at a felony conviction and state prison. Do you want to take that chance? I wouldn’t if I was you, but hey, it’s your ass. DEF: No. I guess I better not. Take the deal.

Clearly, the above conversation is abbreviated but conveys the gist of the point. We have a defendant with no criminal history that maintains his innocence, but in order to avoid the risks associated with a trial – a demand for which will inevitably elicit a warning from the DA that his previous offer is withdrawn – he pleads guilty and is put on probation for three years with a host of restrictions, curfews, warrant-less searches, etc., the breaking of any one of which could still land him in jail. Plus, he now has a criminal record.

The defendant never knows if the PD really believes the offer is a good one, all things considered, or if he doesn’t like to conduct trials, is tired and overworked, is afraid to try cases, his wife is due to have a baby soon and he doesn’t want to be stuck in a trial or plans a Florida vacation the week the trial would be scheduled.

When charged with a crime – if at all possible – defendants should hire their own attorneys. The entire dynamic of the attorney-client relationship tends to be different, in my view, when the client, as opposed to the county, is paying the attorney. With a privately hired attorney defendants tend to get more face time with their lawyer, tend to have a greater say in how their case will be handled and have an easier time reaching them by phone to discuss their case or get an update.

People charged with a crime should seek out an attorney with a reputation for aggressive advocacy – one with trial experience who will take a case to trial if the circumstances demand it. Ours is an imperfect system – one in which criminal defendants must battle state prosecutors with unlimited resources – that said, an aggressive, experienced attorney can give a defendant his or her best chance at the promise of justice that is the birthright of all Americans.

Steve Buitron