A call came in yesterday from an old client, referring me to the husband of her cousin’s best friend.  I’m told that he had been held for 5 months since arrest, “where they found nothing on him.” What was he charged with?  She dunno.  Did he have a lawyer?  “Yeah, one of those guys with a storefront next to the courthouse.”  So why is she calling me now?  She didn’t think it was serious, but now does.

Seriously, this was what I was told.  Five months in remand status and she suddenly decided it might be serious.  Five months after the arrest, and she has no clue what the charges are.  Obviously, a very close couple.

As it happens, New York provides some decent access to pending criminal cases in downstate counties, so I can look up this fellows charges.  Surprise, a 28 count indictment with a top count of criminal sale of a controlled substance in the first degree.  Not too shabby.  A businessman.  He’s in on $500,000 bail.  Ouch.

As for the appearance information, no motions and no decisions.  The lawyer had been paid what would be appropriate for a serious speeding ticket.  It occurred to me that the family had gotten what they paid for.  So, I was asked, would I take the case and what would I charge.  This is where the issue gets tough.

Of course I would take the case.  That’s what I do.  Even though I knew I would be walking into a fiasco, it wasn’t to be any better for the defendant if I refused to take the case.  Anyone can do the easy cases.  It’s the impossible ones that separate the men from the boys (forgive the sexist cliche).

But there was a problem.  My first order of business would be to undo the past five months.  Every step, from arraignment to trial, offers opportunity for the defense.  Our most potent weapons are discovery and motions, if done right and pursued properly.  These are the bullets in the defense lawyers’ gun, and in this case they were nothing more than blanks.  Would it be possible to reload and start out again with a fully loaded weapon?  That was yet to be seen.  But it would require my persuading a judge to allow me to go back to the beginning and do what should have been done in the first place.

I explained that it was crucial to the defense that the case be handled properly from start to finish.  There was simply no way I could jump in at the last minute, after opportunities had been squandered, and pull off some miracle.  Clients sometimes think that this is all some form of voodoo, or perhaps some secret handshake we give the judge that causes her to cut the defendant loose.  Never having experienced the nature of work done by a good lawyer, they truly have no clue that we actually work on our cases.  Even when you explain it to them, they give you a blank stare.  It’s frustrating.

It is remarkably common these days for defendants to take a “wait and see” attitude toward their defense.  They want to know if its “serious” before committing to a real defense (and the associated cost).  Maybe it will all go away.  Maybe they will be offered a plea to community service for their murder charge.  There are a lot of “maybes” involved, but the bottom line is that they want to exhaust all possibilities before they are willing to go for a serious defense.  This is, almost always, the kiss of death.

So now you’re probably saying, “Well, they made their bed and now they have to lay in it.”  While true, it’s a facile response.  People should not go to jail for many, many years because they are foolish or stupid.  If stupidity in the first degree was a crime, there would be no room left in our prisons.  Defendants like this have certainly been a source of their own misery, but that does not mean the consequence should be conviction.  Conviction is the consequence of a guilty verdict, not poor legal decisions.  At least that’s the way it’s supposed to be.

And so I offer an admonition:  Get it right the first time.  You may not get another chance.