What Happens When an Attorney Fails to Properly Evaluate a Case Properly or Defendant’s Refuse to Follow their Attorney’s Advice?

https://criminal.silvermanthompson.com/lawyer-attorney-1709297.htmlAggressive Maryland Criminal Attorneys represent hundreds of individuals in the District and Circuit Courts each year. Perhaps the most important skill that a criminal defense attorney must possess is the ability to evaluate the strength of the State’s case against the defendant. Too often I witness attorneys pleading people guilty in cases where there are strong defenses. Unfortunately, the opposite is also true and all too often I see attorneys taking cases to trial where there is no hope of an acquittal. When this happens defendants are almost invariably sentenced more harshly than they otherwise would have been had their attorney negotiated a plea bargain. This is why it is critically important for any criminal defendant to make sure that the attorney that represents him is a criminal specialist with sufficient experience to know whether to pursue a trial strategy or a plea.

I witnessed this scenario play out in court last week where a defendant charged with armed robbery faced overwhelming evidence of his guilt, including that the entire crime was captured on crystal clear surveillance video. The plea offer was 10 years to serve. For reasons I do not understand, the defendant’s attorney took the case before a Baltimore County Jury that, after deliberating for less than 30 minutes, returned the inevitable guilty verdict. The judge then sentenced the client to 20 years to serve, 10 years longer than he was offered in return for a guilty plea. Sometimes when this occurs it is the result of poor representation by the attorney but sometimes it results from a defendant refusing to accept the advice of his attorney. This case reminded me of one of the most striking examples from my career of a defendant refusing to heed his attorney’s advice. The case took place in Baltimore City Circuit Court a few years ago. Here are the facts:

The police conducted a traffic stop on a vehicle occupied by my client, who was a juvenile and two adults in their mid- twenties. My client was in the back seat of the vehicle and the two adults were in the front. Upon approaching the vehicle, the officer claimed that he immediately observed the handle of a revolver protruding from the front seat in between the driver and the passenger. He ordered everyone out of the vehicle and recovered a fully loaded 357 Magnum revolver. All three were charged with Wear, Carry Transport a Handgun and because the two adults had prior felony records, they were both charged with possession of a handgun by a prohibited person – a charge that carries a mandatory 5 year prison sentence that must be served without the possibility of parole.

Also recovered was a cell phone from my client. The police viewed the pictures contained within the phone and found a picture of him holding the weapon. I filed a motion to suppress the evidence and argued that the police should have secured a search warrant prior to looking at the contents of his phone. The court agreed and suppressed the picture. (In an appeal decided subsequent to this case, the Court of Appeals ruled that search warrant was not necessary in these situations).

We then approached the bench to discuss plea bargains. The judge asked the prosecutor what her plea offers were and she said ” five years without parole for each of the adults and 2 years for the juvenile”. The judge then said, “well, you can only prove the case against the driver, why don’t you dismiss against the other two?”. The prosecutor, who in her defense was bound by office policy to go forward against all three, refused to follow the court’s suggestion. I then immediately informed the judge that my client would be electing a court or judge trial instead of a jury trial. My thinking was obviously that, given that the judge had just advised the prosecutor to dismiss the case against my client because she “can’t prove the case”, he could not very well find him guilty after a trial. I had appeared before this particularly judge dozens of times and both respected and trusted him.

The attorney who represented the front seat passenger also advised the court that he was going to advise his client to elect a court trial. We both then spoke with our clients. I was able to convince my client to waive his right to a jury and elect a court trial, the other attorney was not. I don’t know whether this was the case because he didn’t try hard enough or because the defendant would not agree under any circumstances to go with a court trial. I only know that I would have beaten him over the head (figuratively speaking of course) to get him to take my adviceand if he still refused, put on the record that he had rejected my strongest legal advice to take a court trial. It is important to understand that the stakes were incredibly high for this particular defendant. In addition to facing the mandatory 5 year sentence that I mentioned, this defendant was on probation backing up 20 years to a judge known for issuing long prison sentences to anyone who violated her probation.

The driver rightly elected a jury trial given the court’s comments. The front seat passenger also elected a jury trial and I elected a court trial on the record. The case took less than a day to try. At the end of the State’s case, we all rested without putting on any evidence. The judge then found my client not guilty and sent the jury to deliberate the fate of the driver and front passenger. In just over an hour they convicted both. The judge then sentenced them both to 5 years without parole. Roughly a month later, the passenger was found in violation of his probation and as expected, the judge sentence him to the entire 20 year sentence and ordered that it be served consecutive to the 5 years sentence imposed earlier. I often wonder if he is even smart enough to realize that he is serving 25 years in prison for the sole reason that he refused to listen to his lawyer. Darwin’s theory at work?

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