Sunday, August 5, 2007

It's All About Winning, Except When It Isn't

Imagine a trial wherein everyone openly agrees that those two fellows at the Defense table killed Bryan Kocis. Not only that, but imagine if everyone admitted it before the first juror was ever seated.

Mr. Cuadra and Mr. Kerekes may well have such a trial.

In fact, there are more murder trials that start that way than there are ‘I-really-didn’t-do-it’ kinds of cases. Yes, in both sorts of trials the plea is Not Guilty, but in the former type, one of the Defense’s first declarations is, “Oh yeah. My guy did it alright.”

For good or ill, that’s how criminal law operates in the United States. Every criminal case that actually goes all the way to a jury trial is seen by the State as a kind of failure— it only happens because prosecutors and defense attorneys failed to make a plea deal.

In those cases, everyone agrees about what happened on the fateful day (more or less), but they can't agree about what happens next. That's right, it means that the majority of jury trials are not about guilt, but which charges the defendants' are guilty of, the seriousness of those charges, and, ultimately about sentencing.

All US legal cases are, of course, adversarial proceedings. That is, when everything’s over, somebody wins and somebody loses. However, unraveling just who won is a whole lot more complex than what’s scribbled on the jury’s final note to the judge.

Texas defense attorney Mark Bennett: “If my client is acquitted, that's a 'win,' right? In most cases it would be. But what if, because we win one case, the government files a more serious charge (one that it can prove) against the client? I had a client whose 2-kilo cocaine case I beat in state court, only to see him receive six years in federal prison for the illegal reentry that the feds might not have bothered with had we not prevailed in state court. Is a pyrrhic victory a win?
“What about a guilty plea? Is a guilty plea a win or a loss? How can it be a loss if it's an outcome agreed to by the accused? If the accused goes to prison, how can it be a win?” [Unless it’s a guilty plea that, say, removes the threat of the death penalty. ]

So we have to wonder then, if all of Harlow’s and Joe’s dreams come true and they ‘win’ this case... what will their victories look like?