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Increasing the Percentage of Cases that go to Trial to Achieve Justice

I think if we, as defense lawyers, could increase even slightly, the percentage of cases that go to trial, then it might be possible to achieve a better sense of "justice" for some of our clients. Obviously, the current system is designed for a "plea bargain" and not necessarily for "justice." However, prosecutors have an ethical duty to not prosecute a case in which they personally possess a reasonable doubt about the guilt of the accused irregardless of pressure from their supervisors or the public.

From the ABA Standards on Criminal Justice:
Standard 3-3.8 Discretion as to Noncriminal Disposition

Illustrative of the factors which the prosecutor may properly consider in exercising his or her discretion are:

(i) the prosecutor’s reasonable doubt that the accused is in fact guilty;

(ii) the extent of the harm caused by the offense;

(iii) the disproportion of the authorized punishment in relation to the particular offense or the offender

(iv) possible improper motives of a complainant

(c) A prosecutor should not, be compelled by his or her supervisor to prosecute a case in which he or she has reasonable doubt about the guilt of the accused.

An email received by my colleague, Brian Tannebaum, over at his blog - here - stated:

"This is all a result of a system that is designed for pleas, in which 2% of cases go to trial. Therefore, prosecutors are judged on conviction rates and pleas. They should be judged on whether they act honorably and thoughtfully on what they do and don't prosecute. It is further the result of this country's CYA mentality. No one wants to be on the O'Reilly factor.

Therefore, cops make arrests they don't really agree with and pass it up the chain, hoping the State will do the right thing.

The State files and pursues the case, while making a decent plea offer to the innocent Defendant, because they have to "back up the officer".

The judges deny motions to suppress and other defense applications, because there is never any political capital to be gained in siding with a Defendant.

The underfunded and overworked lawyer pleas the client out, or he just might lose to a jury of citizens who assume that a guy couldn't be arrested, filed on, and have a Judge allow a trial, if he is actually... innocent.

Its all capped off by a PCA from the District Court of Appeals, if they are too busy to write an opinion on that particular case.

I, for one, personally think that the only way to combat this trend is for more defendants, and their attorneys, to be willing to go trial. If we can raise the percentage of cases that go to trial then more nonsense gets exposed and the judges will encourage the State to not waste their time and clog their docket.... instead of leaning on us."

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