Mark Bennett, the Texas Tornado, posts about why he tries the unwinnable case.  Now that he’s returned from being an American in Paris, he’s got a lot of things to post about and is trying to make up for lost time.  We are all the better for it.

We’re not trying these cases for justice, and we’re not trying them to win (though arguably there’s always a chance that the prosecutor will screw something up and we’ll win, which is something to hope for). Sometimes the goal is just to make it costly and difficult for the government to put the client in a box.

Be careful with that “we” thing there, pal.  When I try a case, it’s not because I enjoy doing so (though I do) or that I just want to tweak the government’s nose.  I try because I must.  I try because I have no choice.

I go to trial because my client tells me he is innocent and wants his day in court.  I will give it to him, after fully informing him of what that means.

I go to trial because the government has left my client with no choice but to try the case.  This is typically because the plea offer is horrible, leaving the defendant without options.

My job is to fulfill my clients needs as best I can, given the circumstances.  Sometimes, it looks like the case cannot be won, but the defendant, after being fully informed of the options and recognizing that there is no option that he can live with, says, “do it.”  And I will.

But I’ve never tried a case just to screw with the government.  Even when the case is unwinnable, it is never my purpose to exact a cost from the government if they want to put my client in a box.  Mark muddies the waters somewhat by using the phrase “costly and difficult,” as it’s not clear what he means by difficult. If he means that I’m not going roll over and die because it would make the government’s job easier, then I agree.  If it means that I’m just going to make their life more difficult for its own sake, then no.

When trying the unwinnable case, the potential for prosecutorial screw-up is my primary focus and greatest hope.  And with surprising frequency, prosecutors don’t disappoint.  Between the various tentacles of the law enforcement-prosecutorial complex, there are so many opportunities for errors that I never dismiss that potential.  I remain keenly aware of any opening to exploit.  Because of this heavy emphasis, I find things when others do not.  And it doesn’t hurt to see potential openings and then do what I can to “lend a hand” to a prosecutor or cop who may elect to take a shortcut or two.

Is this a cynical criminal defense lawyer playing the system for all it’s worth?  Well, I guess.  If you want to make it sound pejorative.  If you’re the defendant, or spouse, or child, or parent, or baby momma, you would think differently.  A more useful perspective would be to expect everyone, including those fine public servants who know that their paycheck will come every other Friday as long as the government continues to have the power to tax your sorry private sector butt, to do their jobs.  If they do, then my eagle-eyed expectation of error is for naught.

So the unwinnable case never really exists in my world, or at least not in my head.  While cases may appear unwinnable from a neutral perspective, assuming arguendo that everything happens the way it should and the trial proceeds flawlessly, I would be incapable of trying a case if I did not believe that at some point, at any moment, whenever I least expect it, something will happen that will let me blow the prosecution out of the water.

And that’s why I try the unwinnable case.  Like I said, I try it because I must.