So, you are charged with a crime in the United States. Too bad, too bad for you. Hopefully you are not taken in by the grand and wonderful concepts like “Rights of the Individual” or, worse, “I know my rights”. Maybe you think that the courts are there to protect those rights. Maybe you think that the fact that you are innocent or any wrongdoing will make a difference. Please disabuse yourself of all that.
The United States has 5% of the world’s population but 25% of the world’s prisoners. The United States now has more people in custody now than the Soviet Union, at its height, and Communist China, combined. So much for the Home of the Free. How did we get to this point? I started practicing law in 1975. Sometime in the 1970's, the courts started “balancing” the rights to a fair trial between those of the individual and those of the prosecution in state or federal governments. Who doesn’t want balance, right? The problem is that I have read the Constitution dozens of times and there is not a single word in there about fairness to the prosecution, not one. The Constitution consists solely of limiting the rights of government over individuals, particularly the Bill of Rights.
This occurs simply because of the nature of bureaucracy. People think of government and governmental agencies when they think of a bureaucracy but the courts are a bureaucracy as well. Theoretically, they are a key part of the system of checks and balances that mark our supposedly republican form of government. However, the courts share the same problem that is the hallmark of any bureaucracy, which is simply to protect and perpetuate itself. Ultimately, what hope does an individual have when confronted with prosecution? There is no lobby group for criminal defendants but there are for prosecutors. Many organizations such as the American Civil Liberties Union (ACLU) and certain public defender’s groups do advocate but there is no group made up of defendants. The problem is that the government has all the time, resources and money while the defendants are individuals who cannot hope to match resources with those of the prosecution.
Over time, just as with the so-called “balancing” or rights, the courts started seeing the prosecution as “the public” who had to be protected. Rather than protecting individuals from the power of the state, the undercurrent of legal decisions started shifting to “protecting the public” from individuals. A typical example would be for you to take two cases, assuming identical facts. The only difference is that one case involves one ounce of cocaine and one case involves one ton of cocaine. Given identical facts, a motion to suppress for, say, a bad stop, should result in the same outcome. That is if the law is the same concerning the stop, which it is. However, a judge would be very, very reluctant to grant the identical motion to suppress in the one ton case simply because of the bureaucratic fear of blow back if a one ton suppression hit the newspapers. It is just human nature.
In 1975 in Arizona, the prosecutors went to the state legislature and, basically, complained that judges were soft on crime. They were part of a nationwide effort to begin making individuals face mandatory sentences for certain enumerated crimes. Prior to the change in the criminal code, a judge had wide open discretion to impose whatever sentence was appropriate given all the facts. Even a conviction of major drug dealing or homicide could result in a probationary sentence. What happened is that by passing the mandatory sentencing laws, the legislatures simply made judges out of prosecutors. Prosecutors who I would not trust to take a five year old across the street were handing out years and years of sentences because they knew defendants would plead guilty to a lesser sentence to avoid a minimum mandatory of, say, five years. The result? Many, many people are in prisons for something they did not do because they could not risk a conviction at trial.
Defense lawyers are also like any other group including doctors, accountants, police, etc. There are very good ones, the bulk are average, and there are some horrid ones. Word of mouth is always excellent in selecting a lawyer. Your gut feeling when meeting with the lawyer is also a good gauge. If a lawyer promises you a certain result after the first meeting with you, get out of his or her office as soon as possible. Without reading one word of a single police report and spending a great deal of time preparing, it is impossible to predict an outcome. Unfortunately, many attorneys tell a potential client what they want to hear simply to get the money into the office. Do not fall for that. Check the attorney’s website, check with other people he or she has represented. Do a little research and it will pay off.