If You Lose the Will to Win, You Will Lose.

 Posted on May 22,2010 in Uncategorized

Here's why I don't allow anonymous comments here:

In my opinion there's only one way to reliably win for a criminal defendant at trial: you have some evidence that is devastating to the prosecution's case, you disguise it so that neither the judge nor the prosecutor knows what its significance is, you get it into evidence on some other ground, and you don't say another word about it until you close.

That's part of a lengthy comment "John R." left on Simple Justice. Now, I don't know who John R. is. He could be a fresh-faced law-school graduate, a grizzled veteran of federal court, a Supreme Court Justice, or not a lawyer at all. But whoever John R. is, he knows less about criminal-defense trial dynamics than I

There is no "way to reliably win for a criminal defendant at trial." Even in the rare case when the defense has "some evidence that is devastating to the prosecution's case," defense counsel must fight a multi-front war, not only making sure that the devastating evidence is admitted and given due weight by the jury, but also keeping the weight of the Government's other evidence from crushing the devastating evidence to powder.

John R.'s technique for "reliably winning" is a recipe for disaster. It's almost exactly what a criminal-defense lawyer in possession of evidence devastating to the prosecution's case should not do. Jurors decide the case based on their hearts, and then use their brains and the evidence to rationalize their decision.

Advocacy is storytelling. We tell our story, from the beginning of trial to the end, in hopes that it will touch the jurors' hearts. We don't keep our mouths shut till then end and hope that we can tie together all of the pieces of evidence that we snuck into evidence. We tell the story again and again and again, in voir dire if we can, in opening statement, in cross examination, in direct examination, in our objections. If part of the story is told by the "devastating evidence" (for example, the convenience store video surveillance camera showing the accused on the other side of the country at the time of the murder), we'd better tell that part of the story again. And again. And again.

By the time closing argument rolls around, each juror has made up his or her mind. If we introduce a piece of evidence hoping to reveal its importance in closing, it's too late. The jurors who agree with us already will use it to try to convince the jurors who don't, but the jurors who don't will, because of confirmation bias, disregard it or rationalize it away. They will have decided that our client is guilty, and will find some explanation for the devastating evidence that conforms with that decision-the convenience-store video must have been falsified.

Follow John R.'s "only way to reliably win" only if you wish to snatch defeat from the jaws of victory.

In the context of his other comments on Simple Justice, though, John R.'s putative strategy makes a little sense. John R. is one of those people who think that the the rights that make America free-rights for which many have given their lives-are to be scoffed at:

What "cherished rights" are those? The right to be tried by a jury? How does that work out, usually?The right to have your guilt proven beyond a reasonable doubt? A jailhouse snitch is usually good enough. The right not to have to testify with no adverse inference being drawn? Come on.

If he's a lawyer, John R. is an everybody-gets-convicted-anyway sort of lawyer:

And isn't at least part of the problem that the odds at trial for a criminal defendant, especially in federal court, are so long that ratting usually seems like a good option?

His criminal-defense philosophy? "I mean, as long as it gets you something."

If you are, like John R., the sort of lawyer who never tries cases, you can rationalize never trying cases by creating some myth about the "only way to reliably win," explaining this fanciful scenario (which, you'll notice, requires not only that the defense have evidence devastating to the Government's case, but also that the Government not know about it) to clients, and then, when the scenario doesn't materialize, explaining to the client that he's done what he can, but since the conditions of the "reliable" way to win, ratting is a better option.

Scott Greenfield writes about defending from a position of strength; John R. poo-poos it:

It's almost always impossible to defend from a position of strength. The deck is too stacked. Being ready, willing and able to go to trial has nothing to do with it.

The deck is stacked; the Government will always have more money and more manpower than we. It gets to pick the cases that get tried, and it writes all the laws. But the truth about trial is that the defense doesn't have to have more strength than the Government to negotiate a better resolution, or even to win at trial. The Constitution gives us the right to put the Government to its proof, and to trust its case to the vicissitudes of a jury of twelve. To win in federal court, the defense doesn't have to be stronger than the Government; it just has to be strong, and have the will to use the strength it has.

There's more, but I'm near-apoplectic already, so I'll stop. "Ideas" like John R.'s, publicly stated, subject a lawyer to public ridicule. Fortunately, no lawyer with half a brain and a little experience would heed them, but he talks a pretty good game for the clueless. Unfortunately, some of the clueless who listen to him are probably clients with their futures in his hands. I see why John R. remains anonymous. If I had his name, I'd happily use this space to eviscerate whatever brand he has created for himself.

Greenfield sums it up best: "scary bad."