Wednesday, February 1, 2017

No One Ever Said It Was Going To Be Fair!

Another fallacy of the of the criminal justice system is that it is "fair". We are told that we are going to get a "fair" trial. The whole process is supposed to be "fair". But what is "fair"? One would assume that it means we are dealing with a level playing field. That the prosecutors, as officers of the court will take an unbiased view of the case and would never prosecute if they think a potential defendant is innocent. We believe the process, from the beginning of the investigation through trial is "fair". Well guess what? It isn't, and the sooner a defendant accepts that reality, the sooner he can effectively plan a defense.

The real question should ask ourselves is why do we think the system should be fair and what would a fair system look like. As we all know, there are effectively five parties in any trial; the defendant, his lawyer, the prosecutor, the jury, and the judge. Each of these individuals has a role. One would hope that as officers of the court that the prosecutors would vet their case and only prosecute those they knew with 100% certainty were guilty. If a prosecutor did not know with absolute certainty that you are guilty, then one would hope they would not prosecute. However, if we go down that road, what were are really asking the prosecutors to do is fill the roles of the judge and the jury. Asking a prosecutor to do that is akin to asking a defense lawyer to not put together a credible defense for a client he believes is guilty. However, the job of a defense lawyer is to provide for an adequate defense and not to judge his client. Obviously he needs to advise his client as to the likelihood of success at a trial, but at the end of the day he has a job to do and a role to fill. The prosecutor is no different. The prosecutors job is to bring cases not to judge them. Of course this leads to a potential major problem whereby the prosecutors care less about guilt or innocence and more about their ability to win, but that is a discussion for another day.

Now that we have dispelled the notion that prosecutors are not, nor are they obligated to be  open minded, one would hope that the rest of the process be "fair". Sorry, wrong again. From a logical perspective, it is important to realize that a defendant is never fighting from a position of strength. The reason is simple. As I mentioned before, if you lose at trial, you go to prison, if they lose at trial, they go home and move on to the next case. Defendants have more to lose. By definition, you have to be operating from a position of weakness. Imagine sitting at a poker table and you get raised $500 which is exactly the amount you are willing to lose. Your opponent; however sitting with $1 million. If you lose, you are done for the night; if he loses he moves on to the next hand. Clearly, you are playing from a position of extreme weakness. This is not going to be a fair fight.

Using the poker analogy, lets take it a step further. You opponent, the gentlemen with the $1 million in chips will naturally be very aggressive. He will taunt you, bluff you and do whatever he can to win since he is operation from a position of strength as even if he loses the hand, he just moves on to the next hand. You are going to be relatively cautious as you play your hand and will be forced to withstand all of the mind games that he throws at you. The same is true for the prosecutor. They will bluff you, harass you, scare you and berate you because they are holding all the chips. From the get go you are sitting there with a tremendous disadvantage and that is just from a risk/reward standpoint. From there it only gets worse.

Now lets talk about money. Even if a defendant has millions to spend on a defense, it pales in comparison to what the government has to spend, Remember, defense lawyers, at least the good ones get a massive fee that covers only a certain amount or they get paid a handsome hourly rate. Either way, the longer the case goes on, the more it costs a defendant. The government on the other hand is at the exact opposite end of the spectrum. Prosecutors get paid the same amount whether they go to trial or not; whether then win or lose. They are also getting paid a lot less then most defense lawyers. One would think that this would incentivize them to cut deals so that they can do less work. However, quite the opposite can be true, Many prosecutors are using their position as a stepping stone to one day cross over and become defense lawyers. In-fact, many defense lawyers do come from the opposite side. Often times, a federal prosecutor is motivated to succeed because he has an eye on higher political office. Remember that Rudy Giuliani was a federal prosecutor in New York before he became the mayor of New York City. His record established him as being one who was tough on crime. Some prosecutors believe in"the cause". They believe that their job is to enforce the law. Of course there are some prosecutors that are just spiteful people who will stop at nothing to win.

No matter what their reason for working as a federal prosecutor, they are not going to role over easy. The main reason is that they have an unlimited amount of resources. They can throw as many lawyers as they need on a case. They can keep it going as long as they need to to wait out a defendant, provided of course that charges were filed within the statute of limitations. They can hire all the investigators that they need. In essence, not matter how wealthy a defendant is, a prosecutor can outspend him.  To say that the prosecution has an unfair financial advantage is an understatement. Even if a defendant is found not guilty, the government does not reimburse for legal fees that were needlessly incurred.

The next unfair advantage is the toolbox that is at the prosecutor's disposal. As mentioned in a previous entry, the guidelines are extremely harsh on white collar crimes. A conviction on one count of Wire Fraud can potentially result in a 20 year sentence. Prosecutors will use the leverage to try to force the hand of a defendant. I remember sitting in a meeting with the prosecutors where they told me "If you go to trial an lose you will never live with your children again". Can you imagine? Is it fair to play with someone's emotions like that to try to cajole them to take a plea? Of course it isn't! But they have the tools and they can hardly be blamed for using all of the tools at their disposal. A defendant has no leverage here. The prosecution is not obligated to charge a defendant on the charges that they would allow him to plea to. Logically, of course, as officers of the law, they should be quite content prosecute a defendant on the lesser charges that they are willing to let him plead guilty to. But that is not the case.

As I have pointed out, they prosecutors have insurmountable advantages when deciding to prosecute an individual. Even an innocent citizen would be rightfully frightened at the prospect of going up against a behemoth that the the US government. The tactics they employ are certainly withing their rights and certainly not fair. A defendant has to know that no matter how much he kicks and screams that he is being treated unfairly, that it will make no difference because the system, as it is set up in inherently not fair. But, none one ever said it was!

NOTE: I am not a lawyer and none of this should be construed as legal advice. All legal questions should be addressed with your lawyer. These are merely my opinions based on my experiences.

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