Posted On: October 21, 2011 by Brian G. Thompson

Defendant with 9 Ounces of Cocaine and no Defense gets Probation

Baltimore Maryland Criminal Attorney discusses case evaluation and the plea bargain process. The ability to objectively and dispassionately evaluate a case is critical to being an effective criminal defense attorney. Far too often I witness inexperienced or simply ineffective attorneys taking cases to trial only to pursue defenses that have no realistic chance of success. The unavoidable fact of this business is that sometimes your client is guilty as charged and the State can easily prove it. In defense attorney parlance these are known as "dead up cases". Criminal defense attorneys need to recognize and accept that this is true when confronted with such a case and advise their clients honestly as to their situation.

This is not to say that there is nothing an attorney can do for their client in a situation like this - far from it. I have represented thousands of clients throughout my career who have been able to significantly reduce the consequences of a conviction by recognizing that trial was not an option and pursuing an effective strategy to minimize the damage. I had a case last week that is a terrific example of this in the Circuit Court for Baltimore County. The client accepted the situation as I explained it to him and did what I told him to do and it worked out extremely favorably by any measure. Here are the facts:


My client is a 40 year old divorced father of 3. In the latter part of the last decade he was running a successful construction company, was happily married and was providing a very nice lifestyle for his family including living in a large single family home. Then the economy crashed. As we all know, the construction industry was among the hardest hit industries and his company was not spared. In a period of less than 2 years, his business imploded, his wife left him and his house was foreclosed upon. He found himself living in an apartment with custody of his three children, trying to figure out a way to keep a roof over their heads and put food on the table.

In this desperate situation he made a decision that most of us probably wouldn't have made but that most can probably understand why he made it - he started selling drugs. He actually became what is known as a middle man. What I mean by that is that he was buying relatively large amounts of cocaine from one dealer and selling the entire amount to another dealer, both of whom he had known for a long time. Perhaps the craziest part about it his actions was the he didn't even make very much money doing it - just a few hundred dollars for each delivery.

Ultimately an informant identified my client. The police conducted surveillance, did a controlled buy from him and secured a search and seizure warrant. They executed the search and seizure warrant and caught him with 252 grams (9 ounces) of cocaine. He was arrested and ultimately signed a mirandized written confession admitting that he was going to sell the cocaine.

It should be obvious to most attorneys and even most lay people, that this was going to be an extremely difficult case to defend, at least in the way most people understand that term. In fact, barring a fatal error in the warrant (we went through it line by line and it was bullet proof) there was absolutely no defense. In other words, this case was Dead Up.

Before coming to see me, my client interviewed half a dozen other attorneys. Most told him that the case appeared strong but each still told him there was good chance that they would be able to have the case "thrown out" or win an acquittal. I was less optimistic and told him so. I basically told him that the only conceivable defense was a technical defense based on an error in the warrant. I briefly reviewed the warrant during our initial interview and told him that it appeared solid but that we would dissect it to be sure if he hired me. I told him that anyone who was telling him anything other than what I was telling him was selling him pie in the sky.

On the other hand, I told him that I thought his circumstances were compelling and that I believed that there was a good chance that I could keep him out of jail. I acknowledged that the overwhelming majority of people charged with this much cocaine go to jail but that if he accepted his situation and did what I told him to do, that he had a real shot at avoiding incarceration. As is often the case with defendants in his situation, staying out of jail was really all that was important to him because of his kids. He told me he could live with a felony conviction on his record but that jail would turn his kids' world upside down to include having to move and change schools. They had already been through so much in the last two years and he was terrified of what further upheaval would do to them. I told him if he let himself be talked into going to trial on some ill-conceived defense, that he would almost certainly be convicted and go to prison. He thanked me for honesty and hired me on the spot.

Before I write about the outcome of the case let me say this: I like to fight as much or more than any defense attorney I know and in fact take a larger percentage of my cases to trial or at least supression hearings than most. I have often blogged about cases in which I have witnessed attorneys plead their clients guilty in cases where there were obvious and viable defenses. But to quote a classic Kenny Rogers lyric, "you got to know when to hold em and know when to fold em". Defense attorneys do their clients no favor by filling their heads with unrealistic expectations of being found not guilty in cases where the State has overwhelming evidence and conviction is all but certain. I've actually heard lawyers say, "my client wants to go down swinging" when questioned as to why they are taking a dead up case to trial. This is nonesense. No client wants to receive a harsher sentence than they could have otherwise received. We all have difficult clients with unrealistic expectations but the vast majority will listen to reason and accept their attorney's advice if the attorney really takes the time to explain to them the reality of their situation.

Some might say that if the client is facing a very strong or dead up case, it is a, "no harm no foul" situation to take an unrealistic shot at a miracle acquittal, After all, the client is going to be found guilty either way. This line of reasoning may well apply if your client is facing the death penalty, a life sentence or a sentence that is the functional equivalent thereof, but the fact is that, in the overwhelming majority of cases where there is no realistic defense, the sentence a defendant receives can be significantly decreased by effective advocacy in the plea bargain process. Said another way, the defendant's sentence can be significantly increased by electing a trial in a case where conviction is a foregone conclusion.

After examining the case closely, my initial evaluation of the case was confirmed. This case was indeed, dead up. My client quickly accepted his situation and agreed to put all of our energy into pursuing a damage control strategy with an eye towards his one and only goal of staying out of prison. Last week he entered a plea of guilty to possession with the intent to distribute cocaine. After learning of my client's situation to include his current custody arrangement, the court agreed that his circumstances warranted a suspended sentence and probation - in other words, no jail. Needless to say the client was thrilled and considers this outcome to be a huge win as there is little doubt in his mind or mine, that the outcome could have been considerably different had a wrongheaded or unrealistic strategy been pursued.

Footnote:

There are many reasons why a judge will almost certainly hand down a harsher sentence in situations in which an attorney takes a case that obviously should have pled to trial but probably the three most important are that the defendant has not accepted responsibility for his actions, has not shown remorse and has frankly wasted the time of the court and the jurors pursuing a frivolous defense. The truth of the matter is that a defendant gets a benefit or a "bargain" for entering a plea of guilty because it spares the State the time and expense of a trial. Court resources are limited and the court must encourage defendants to plead guilty in appropriate circumstances because there simply are not enough court rooms, judges and court personnel to take every case to trial. A criminal defendant simply can't expect to, and in most cases will not, receive that benefit if he does not do his part in the bargain.


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