Thursday, April 6, 2017

Ithaca DWI Lawyer: Creativity in Defense Lawyering

I usually take more than ONE Minute
to handicap anything
I truly believe we are all creative. Anyone can create but the decision to act on it I think separates out the doers from the wallflowers. Whether we are defending a felony DWI or a bunch of traffic tickets creativity can open up new solutions.

Can we bring creativity to criminal defense negotiations? Can we come up with options and solutions that are seemingly outside the proverbial box?

Is succeeding at criminal defense really about handicapping our cases?

Successful Criminal Defense Lawyers are Like Successful Horse Handicappers

I've blogged about this before, criminal defense is really about handicapping our cases. Figuring the odds of success with this or that defense. Figuring out what a prosecutor may go along with or what a judge will agree to.  I will forever be grateful to my dad for a number of things.

The most beautiful of sights

Horse Handicapping and Criminal Defense Handicapping are Very Similar

One of these things is explaining horse handicapping. My dad loved the ponies. Yes, gambling is bad, but my dad liked to gamble, smoke, drink beer and eat hotdogs, and he loved baseball. On special occasions he would take me to the track and go through the newspaper. He would study the many factors before placing his bets.

Along with the horses I guess smoking and easy eating were joys to my dad but it all drove him to an early grave. I'd like to believe he went with a smile enjoying all the things he loved.

All Handicapping Involves Looking at the Bigger Picture

Remember that all future predictions will involve reviewing the past, gauging the present, and then trying to ascertain the future. Without all of this knowledge a fool proceeds to discuss the future. Any business deal, any stock purchase, and any defense strategy must use this model.

My dad would consider the weight of the jockey, weight of the horse, age of horse, first time in this race, type of track, length of race, past performance, past distances, and the weather.

Was this horse a mudder? Did it perform well in shorter or longer distances? What's the weather today? What was the weather in past races?

To Handicap a Criminal Case We Must Look at Every Potential Factor and Angle 

In a criminal case many of these factors are similar. What's the judge like? What's the prosecutor like? What's the experience (outcomes) of these types of cases in the past? Does my client have a bad history or record or is it a winning one? What kind of charge (race) is this one? Is it a longer (haul) i.e. more complicated (more charges and more severe charges) or a short (less severe and simple) one?

Remember that New York State legal disclaimer. "Prior Results Don't Insure Future Results (outcomes)?" What that really means is that just because someone similar might have got a specific result doesn't necessarily mean you will to. Things are constantly in flux in this world and especially in the world of criminal defense law. Judges change their policies, they can become more demanding or they can decide that they have been soft or too hard, so they change. Then something else happens and they change again.

Lawyering and Defense Require Flexibility and Adaptation

You know it is said that stress is merely a failure to adapt. Because change is constant and we must adapt to change or die. Organisms both large and small all follow this same projectory. They either respond to change or react to it. Responses are measured and are thought through while reactions are knee jerk and often fatal.

A Case of Too Many New York Traffic Tickets and a Lawyer's Creativity

We recently defended a young man with lots of traffic tickets. No one ticket by itself was bad but this was multiple stop sign violations and speeding and failure to signal turns. It added up to over 11 points, which meant an automatic license suspension. The cop that wrote him up was clearly unhappy with his driving and attitude because every ticket was written at it's max and not just one turn but multiples before he stopped him.

What to Do About A Lot of New York State Traffic Tickets?

There is this thing called a legal fiction. Pretending that something happened when it really didn't as part of a plea bargain. It is where "you say you did something you did not and plea to a seemingly unrelated violation or infraction." It happens all the time that prosecutors can offer and judges can accept legal fictions IN THE INTEREST OF JUSTICE.

Don't you just love that phrase?

Justice demands a legal fiction sometimes. One such legal fiction is taking a whole bunch of traffic tickets, and asking for a disorderly conduct charge. Why would a prosecutor offer and a judge accept this legal plea bargain?

The Magic of Adding a New York CD (conditional discharge) to a Plea Bargain

A New York CD (conditional discharge) means you have to stay out of trouble (no new arrests) for one year. There are two year CDs but they are rarely given. You can't receive a CD on a moving violation, you can't receive a CD on a speeding ticket, but you can receive (get) a CD on a disorderly conduct violation.

The judge is happy because he or she now has something hanging over you. The power to send you to jail if you mess up again within the year. Prosecutors like it for the exact same reason, if you mess up (get re-arrested) they can ask for up to 15 days in jail on a CD violation. Can you stay out of harm's way for one year? I guess that is the question? A violation of a violation can carry up to 15 days in the local county jail, in New York that means 10 days in jail (2/3 time for good time).

You Don't Always Have to Play to WIN 

A Final Thought About Gambling and Handicapping DWI and Criminal Defense

The best gamblers in the world don't bet on every single race. They pick and choose their battles. They may only bet on one race a day or a week or even a year. In the same way that you may pick a horse not to win but to place or to show, which means 1st, 2nd, or 3rd to those never to the track.

In the world of DWI and criminal defense that means we gauge our case and the plea offer being presented carefully. It might be a great deal in the scheme of things. Sometimes a close call is just that but sometimes people want to play the long shot. They want to bet on the 20 to 1 or 100 to 1 horse. That might be taking a case to a jury trial with horrible facts.

Going into everything with open eyes is always best. If it is a long shot you should know before you throw down a lot of time, energy, and money. That is the same whether you are betting on a horse or on an outcome.

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