The Battle Not Fought

Through political might nations can win wars without fighting battles. A battle should always be avoided if possible because they can be risky and costly. I am sure Sun Tzu wrote something about this. And I am sure I read it.

It's not often we defense attorneys get the State by the short and curly's. What I mean is that we don't normally get cases that put us in a position of strength. Some attorneys will bluff and say they have a great case. They will also claim they are not afraid to try it.

Sometimes this approach works and sometimes it doesn't. If the State knows they have a winner, threats are meaningless. If it's a close case and the attorney is competent, they might think a bit. And if the State's case is horrible, they won't want to try it.

In theory the State shouldn't have any horrible cases. Between felony review, the grand jury, and preliminary hearings, weak cases should be weeded out.

So much for that theory.

In February I had an attempt murder case set for trial. When I showed up ready for trial, I was told the State wasn't. I wrote about it. The case was reset for today, April 12, 2010.

A couple of weeks ago, I had to call the prosecutor to remind her she owed me some discovery. Last Monday we met outside the courtroom. She said "your client's not willing to take anything (meaning a plea bargain)?"

"I don't know. You haven't made an offer" was my response.

At no time in my handling of this case have I asked for a plea deal offer. Why? It would tell the State a couple of things: #1 that I don't want to try the case, and because of this, #2 my case is bad.

I do not like having to ask for deals. I hate it. My hesitancy about asking for plea deals is that is makes me appear weak. Either my case isn't too good or I am too lazy to try it.

Granted I do handle the occasional case where the client will likely get probation at the arraignment. In those situations, I am asked by the client to seek a deal. Since I work for the client, I can't say no. So, I do it. And normally with good results.

But this attempt murder case was my first really violent case. My first shooting. I happened to be outside of the courthouse where the defendant was making his first court appearance. His cousin asked me if I was a lawyer.

I didn't want to take a shooting case that was a dead loser. I went to the jail to talk to the defendant. He was innocent. That was his story. He told me what the physical evidence was going to show. I wasn't convinced from the start. But I took the case. I liked him.

The defendant was barely 18. He stands about 5'4" and maybe weighs 130 lbs. He is a baby. And his voice squeaks like a 13 year old going through puberty. When we first met he had a hard time looking me in the eye while declaring his innocence. Instead he would smile, look up, and shake his head while stating "I didn't shoot that boy."

In the beginning I was never sure I was hearing the truth. But I learned that's just the way he is. And without fail, every time we went to court another little nugget of favorable evidence came my way.

I had originally planned to have his case tried before Christmas 2009. But the State (or the cops) couldn't find a very key piece of evidence I wanted. In fact, it was the piece of evidence in the case.  I was yelled at in court by one of the prosecutors because of my persistent requests that the evidence be produced.

I was told on numerous occasions the police didn't have it. I was told the State didn't have it either. Then I was told it was at the jail. I knew this to be false. Finally it was produced in November or 90 days after I initially asked for it. The cops had it. And the minute I saw it, I knew my case was strong. And I am sure the State knew too.

Was the evidence hidden? I don't know. But evidence that inculpates the defendant is never lost for some reason.

The case was set for trial in late February. With the help of a gracious De Paul first year law student, it was prepped during the week leading up. I drafted the opening. I prepared my trial notebook. I had cross ready. I prepared photograph exhibits. The motion in limine was ready with supporting case law copied. The case was ready. And I was ready to put it on.

The evidence against him was eyewitness testimony from up to 5 people. All of them would testify he held a gun and fired it at a group of 4 boys, hitting one of them in the leg. On the surface that seems pretty strong.

The great thing about this case is that the more I dug, the better it got. Eventually it became apparent the case was largely fabricated. And all of the physical evidence was in our favor. I liked this case.

The State claimed they had witness problems in February. I demanded trial. Before the defendant left the courtroom in February the judge admonished him on the record. I had never seen this done before. The judge told him that should he be convicted on any of the attempt murder charges, he would get 31 years to natural life in prison. Scare tactic?

The client stood there unmoved. My stomach turned. That's a lot of time. 

After the case was reset for today, I was talking to my client in the interview room next to the holding cell. I told him April 12 is my birthday. "You're going to try my case on your birthday?" he asked. "Do I have a choice?" was my response.

Back to last Monday. The prosecutor asked if my client would be interested in a plea deal. I was listening like a parent to his child that just got detention at school. I was asked if a deal for probation might work. It might.

I ran into the same prosecutor later last week. Probation? Are you offering? I will answer ready on Monday. Do you have my discovery?

This morning I had the client brought into the interview room. I had no official offer, but I told him about last week. "I get to go home today if I take probation? Hell yes!"

The offer came. The client accepted.

What did I learn? A lot. From the start I carried myself as if I was confident about this case. I was. Never was I cocky, obnoxious, or an ass. I was a pain in the ass, but that's my job. In a tactful way, I let the government know I was ready to take this one to a jury. I can only assume they saw the same weaknesses in their case as I did.

If I would have asked for a deal last year, I would have been offered 10-15 years in prison at 85%. I knew that. The client knew it too. It wasn't until the State knew I was going to put the case on that they really started to scrutinize it.

Was today as good as an acquittal? No. I won't get to claim a trial victory. But my client is going home as if we had gotten a not guilty. And there was no risk of a guilty and a long time downstate. I feel good about it. Everyone is happy.

By the time I got to court today, I forgot it was my birthday. It's just another year. No big deal. I was again consumed about this case. I would have thought the possibility of decades of prison would have been weighing heavy on my client's head.

But after we sat down and before I even mentioned the word probation, he said "I want to wish you a happy birthday."

I might not forget this one.

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