A Broken System

A Bit of Advice from One Who Has Been There

In the movies, a felon’s big day comes in a fancy courtroom before a jury who solemnly pronounces – against the backdrop of a grandiose musical score – the defendant’s guilt or innocence. The reality for most of us is far different.

Most defendants will never see a jury. Most defendants will not benefit from that cliched but essential guarantee found in the Bill of Rights: innocence until proven guilty. Most defendants will not have a chance to present their evidence. Why? Because in our day and age, with our overloaded courts, powerful prosecutors and lengthy sentences, jury trials are for all intents and purposes a thing of the past. The prosecutor will judge you guilty. Wanting to avoid a long, expensive trial, she will then offer you a deal. And you – maybe after a bit of negotiation – will almost undoubtedly accept.

Whether guilty or not, you will feel tremendous pressure to cop a plea and will most likely do so. The fact is, plea bargains are for the innocent as well as the guilty. According to the Wall Street Journal, a full 97% of federal criminal cases in 2012 were resolved by a plea.

Those brave – or crazy – enough to forego a plea face daunting odds. Not only is the grand jury essentially a rubber-stamp for the prosecutor’s requests, but prosecutors win a vast majority of that 3% of cases actually brought to trial. Most importantly, the nice offer the prosecutor gave you to encourage your plea will now fly out the window. She will pile count after count against you so that losing in trial could get you twice, quadruple, even ten times as much prison time as you would have received if you’d copped a plea. You will ultimately conclude – whether you are guilty or not – that proceeding to a trial by jury would be a maniacal, suicidal decision.

As a result, your big day in court will not involve a jury, nor will it involve a decision of guilt or innocence. You will, most likely, still have to plead guilty in court, but that is a mere formality. Rather, your big day will come on the day of sentencing, your real judgment day, that day when the judge decides your sentence. This day of sentencing will be your focus for months and months as you muster your best arguments as to why you deserve less time rather than more.

I know of what I speak – I’ve lived it. If you’re lucky, you will reach an agreement with the prosecutor as part of your plea so that you come into court presenting a united front. The judge may find differently, but more often than not he will approve the agreed sentence. If you are unable to agree on a sentencing timeline with the prosecutor, your fate will be left entirely in the judge’s hands. This is what happened to me: the prosecutor wanted 8 years, I wanted one, and there was no way to bridge the distance. It can be a strange experience to have a fellow human being serving judgment on you, deciding based on dry court documents whether you are an honorable, upstanding person who made a mistake or a terrible criminal who deserves to be locked up for decades.

I don’t write this to depress you or to scare you but to present you with a realistic portrait of how – in our day and age – the criminal justice system works. My point is to urge you, encourage you, even exhort you to take any criminal investigation extremely seriously and begin to prepare immediately for the worst.

I can’t count the number of times – and I am, embarrassingly enough, in this group – that a defendant refused to recognize the signs and realities of his situation and did things that hurt him later on. The human mind, it seems, has a hard time accepting that the worst case scenario could, in fact, be the reality. 

When the prosecutor first reached out to me I was hopeful (vainly, as it turned out) that he just wanted to chat. Like an idiot, I got on the phone with him without a lawyer and said things that ultimately hurt me. I had convinced myself that my case would end with civil proceedings – I didn’t think of myself as a felon, after all. Not yet. 

I speak from experience and have some very simple advice. As soon as you hear the word – and this word can come to you in different ways depending upon your case and accused crimes – that you may be the subject of a criminal investigation, shut up, lawyer up and reach out to others who’ve been there before and can help guide you through the process. If you’re low on funds, the court at this point must appoint a lawyer at your request.

The human urge is to both deny the bad news and to hide it from others (out of shame, denial, embarrassment) who are in a position to help.  That is what I did. And I am not alone. But if I had the chance to do it all over again I would have done it differently, reached out, planned for the worst. 

If I had done that, who knows? I would have undoubtedly still been prosecuted but the path forward would have been much less traumatic and full of risk. I’m hopeful that others may learn from my mistakes. If not, then what was the point in making them?