Anne Reed’s discussion of District of Massachusetts Chief Judge Young’s call to arms over the death of trials compels further distinction between its implications for civil cases and criminal.  Amongst the factors cited by Judge Young are settlement, arbitration and resolution.  These concepts have very different significance to the civil litigant than the criminal defendant. 

In a civil action, as much as most litigants believe their position to be absolutely and unequivocally correct, there is almost always room for disagreement.  The relative fault, or the relative value of the damage or injury, leaves a fairly wide path for compromise.  It’s said that a good compromise is one where nobody is happy.  But regardless of the degree of happiness, all sides can move on when it’s over.

The idea of compromise in a criminal case is fundamentally different.  There are two outcomes.  The defendant prevails (whether by acquittal or dismissal) or the defendant is guilty.  There’s no half guilty.  The closest one comes is a plea to a quasi-criminal disposition (such as a “B” misdemeanor that is pled down to an infraction in New York).  Acquittal is something that happens after trial, so that doesn’t help us.  Dismissal is the holy grail, coming after suppression or the sudden recognition by the prosecution that it has no case.

So what of the criminal defendant who is innocent?  Let’s assume, for the sake of argument, that there is no suppression issue and the prosecution believes it’s got the goods.  Where’s the middle ground?  There is none.  At least, there is none that has any legitimacy.

Too often, the only “resolution” for the innocent defendant is to take a plea to a lesser offense in order to avoid the harsh consequences of conviction.  This is the plea of convenience, and flies in the face of all we deem holy.  Some will urge it upon their clients under the “discretion is the better part of valor” theory of defense.  Is this a compromise?  In a sense, but we’re putting innocent people in jail ONLY because it’s better than putting them to death.  There’s no legally and intellectually legitimate middle ground available.

One of the things I tell my clients, who profess their innocence but have a desperate (and well founded) fear of going to trial, is that there is no option to tell the judge, “Never mind, let’s just call it a draw, forget the whole thing and go home.”  Once they’re stuck in the system, it becomes an all or nothing proposition.

While a plea bargain is a resolution to a guilty defendant, what of the innocent defendant (or the defendant who has been grossly overcharged)?  The options are a plea of convenience or trial, which all its unknowns and costs.  But what if those two options were chopped down to one?

This is the real heart of darkness for the accused.  They retain counsel with the blind faith that the attorney’s license assures them that he has the ability to fight the case to the bitter end.  If the secret truth is that the attorney lacks the ability or wherewithal to try the case, a little detail that has been concealed from the defendant, then the outcome is a forgone conclusion.  There will be no trial.  There can be no trial.  The defendant would be going into battle unarmed, and he will most certainly be slaughtered.

So the defense lawyer, with his secret intact, will urge the innocent defendant to take a plea of convenience.  He will use his fiduciary powers of persuasion to convince the defendant that he must avoid at all costs the draconian penalties that a harsh society has mandated be imposed for his crime.  This is remarkably easy to do, as clients need to believe that their lawyers care for their welfare and will accept what they say if the lawyer has any persuasive ability at all. 

And so, unlike the civil case where the worst that can be said is that the client paid too much, or received too little, but lived to fight another day, the innocent defendant was denied those glorious rights guaranteed by our Constitution because one person, a lawyer, pushed the client into a hole from which he will never emerge to cover his own fears, inexperience and inadequacies. 

This is the real price of the death of trials.