I have five cases set for trial right now.
Five.
And if you asked me why each one was going to trial, I would give you five different answers.
That got me thinking about something people probably don’t think about very often:
How does a criminal defense lawyer decide that a case should go to trial?
It’s not as simple as believing your client is innocent.
It’s not as simple as believing you can win.
And it definitely isn’t as simple as deciding that the State’s case is terrible.
Sometimes the State’s case isn’t terrible.
Sometimes your client’s case isn’t either.
Sometimes there are just questions that haven’t been answered.
And sometimes the available plea isn’t really an acceptable option for that particular client.
I didn’t always know how to look at cases this way.
I learned.
I still remember the first case I set for trial.
I was terrified.
It was an unlawful-carry case involving alleged marijuana possession, and when I opened the discovery, it seemed like the State had a lot to work with.
Bags.
Scales.
Green leafy substance.
You name it.
I remember thinking, Oh, this is bad.
The problem was that I didn’t really know how to look at the case yet.
My mentor did.
She asked me a question that hadn’t occurred to me:
Where’s the lab?
I didn’t have a clue.
She explained that if the State was going to prove that the substance was marijuana, I needed to know how they were going to prove that it actually was marijuana.
And there wasn’t a lab test.
Suddenly, the case looked different.
Not easy.
Not guaranteed.
Just different.
I had been looking at everything the police had collected and thinking about how bad it looked.
My mentor taught me to stop looking at the pile and start looking at what the State actually had to prove.
That lesson stuck.
So I went looking for an answer.
I went over the chief’s head and contacted the head of the misdemeanor division. I asked whether the State intended to try a marijuana case without a lab confirming that the substance was actually marijuana.
I got a very politically correct answer about prosecutorial discretion and the State’s authority to decide which cases it would pursue.
Okay.
I still didn’t really have my answer.
But I got it the next day.
The case was dismissed.
😂
That case wasn’t some brilliant piece of lawyering on my part.
It was a lesson in knowing what I didn’t know—and having a mentor who knew what question I needed to ask.
Before that case, I looked at a file and saw everything that made my client look guilty.
After that case, I started learning to ask a different question:
What does the State actually have to prove?
And then:
What evidence do they have to prove it?
Those questions are still part of how I decide whether to set a case for trial.
Now, when I’m looking at a case, I start breaking it down.
What does the State have?
What don’t they have?
What am I missing?
What am I worried about?
If I were prosecuting this case, where would I attack the defense?
What evidence hurts my client?
What evidence helps my client?
And sometimes, after doing all of that, I still don’t know whether we’re going to win.
That’s okay.
I’m not trying to predict the future.
I’m trying to make a good decision with the information I have.
I have a DWI set for trial right now where the officer never saw my client driving. The vehicle was already parked when the officer arrived. There was no field sobriety testing and no Drug Recognition Expert (DRE) evaluation.
There is blood evidence.
But I’m still asking a basic question:
How is the State going to prove operation?
Another case involves a client who is here on a visa and is charged with an offense that qualifies as a crime involving moral turpitude.
For him, the plea isn’t simply a question of punishment.
A conviction could have consequences far beyond the criminal case.
So I’m not just asking, What’s the best plea deal?
I’m asking whether the plea is actually a viable resolution for this particular client.
Then there’s a case where my client is adamant that he is innocent.
It’s a difficult case.
I know that.
I’ve told him that.
But my job isn’t to decide that because a case is difficult, my client should plead guilty.
My job is to make sure he understands the evidence, understands the risks, understands the possible outcomes—and then, if he chooses trial, to prepare the best defense I can.
I have another DWI with a very low blood alcohol concentration.
And I have an assault case where the complainant says my client hit him with a fist, a chair and a charging cord, but there are no visible marks on him. My client says the encounter was a verbal altercation and nothing more.
Five cases.
Five different reasons.
And that’s probably the thing I wish people understood about criminal defense.
Setting a case for trial doesn’t necessarily mean I think I’m going to win.
Sometimes it means I think the State has a hole in its case.
Sometimes it means the available plea carries consequences that are unacceptable for my client.
Sometimes it means my client maintains his innocence and wants the State to prove its case.
Sometimes it means the evidence doesn’t fit together as neatly as the accusation suggests.
And sometimes it means that, after looking at everything I know, I can’t responsibly tell my client that pleading guilty is the right thing to do.
That’s different from knowing we’ll win.
I don’t know what six jurors are going to think.
I don’t know which piece of evidence they’ll find persuasive or which witness they’ll believe.
What I can do is study the case.
I can test the evidence.
I can identify the risks.
I can explain those risks to my client.
And then I can help my client make an informed decision about what happens next.
Sometimes that decision is a plea.
Sometimes it’s a dismissal.
And sometimes it’s six chairs in a jury box and a very long week ahead.
I have five of those cases right now.
So apparently, I have some studying to do.
On (In)justice 