A call came in the other day from a young man who needed a lawyer to handle his appeal.  After telling his story, which included a part about his dissatisfaction with his trial lawyer because of his inability to achieve the result that the young man desperately sought, my caller told me about a defect in the conduct of his trial.  It was a very real defect, but it offered no solution.  I tried to explain a problem so that the caller would have a clearer understanding of what he was seeking. 

The problem is one that I, and every other lawyer who handles appeals, faces regularly.  Different errors result in different outcomes.  Some, such as failure to prove guilty beyond a reasonable doubt, will result in a reversal and dismissal on appeal.  Others, such as a mistaken jury charge, result in a new trial.  Still others, such as admission of improper evidence, could go either way, according to whether the error undermined the evidence to such an extent that guilt was unproven, or the evidence was bad but inconsequential.

This distinction is lost on many defendants.  It’s also lost on many judges, who have never had the experience of being responsible for the life of a living, breathing person.  Defendants do not appeal because they want to correct injustice or error.  Defendant appeal because they want to be free, or at least freer then they would be otherwise.

For some defendants, there is a hidden burden in retaining a private lawyer to prosecute an appeal.  It’s an expensive proposition, regardless of the seriousness of the crime.  Most of the time, the defendant is incarcerated, and has left a family behind.  Regardless of what underlying crime is involved, most haven’t managed to amass a vast fortune that will leave their children in comfort.  At best, they have just enough savings, after defending at the trial level, to put food on their family’s table.  The appeal can easily wipe that out, leaving the children hungry.  It’s something that every decent lawyer needs to bear in mind.

My caller was adamant that he had a great appellate issue, and he was willing to bet the farm on winning.  After listening to his story, and accepting its accuracy for the sake of discussion, it was clear that he did indeed have a great argument.  In fact, it was a fascinating argument, one that any appellate lawyer would love to argue.  But there was a glitch.

The nature of his issue would, should it prevail, have resulted in a reversal of conviction and remand for a new trial.  The problem was that the defendant was dead in the water at trial.  It was a slam dunk case, as it had been the first time around.  The error, egregious and pointless, was clear, but so was proof of guilt.  There was no likelihood that a necessary witness would be lost, or that memories would fade. 

So after our discussion, I explained to the defendant that I would love to take his case, to prosecute his appeal, to right the injustice that was done to him.  But at the end of the day, there were a few things he needed to consider before retaining me.  First, the cost of retaining me to prosecute his appeal would likely leave his family, his children, indigent.  He was no criminal mastermind, and his crime did not produce enough ill-gotten gains to cover the tab.

Second, despite the fact that the trial error was relatively clear, and appeared to be well preserved, there was no assurance that the appellate court would reverse.  There is never a guarantee of reversal, and appellate courts have been known to fudge the details, including the horrendous conclusion of harmless error, in quickly disposing of appeals where they are simply not inclined to reverse.

But the third reason was the kicker.  In the event that all went well, no perfectly, the upshot of these efforts, this cost, the burden, would be a new trial.  And if the conviction was reversed and remanded for a new trial, the likelihood was extremely good that he would have the same ultimate experience the next time around as he had the first.  Conviction.

It would have been my honor to represent this defendant.  But I could not, in good conscience, take his case without him understanding that at the end of the day, there was a strong likelihood that he would find himself in the same legal position as he was at the moment he called me, but with a family left in poverty as well.  There is no ethical prescription compelling me to explain this to a potential client, but it is simply the decent thing to do.

Of course, I am no more capable of knowing the future then anyone else.  There are always possibilities, foreseen or not, that could result in a monumental change in circumstances.  The one witness is hit by a truck.  The evidence is lost by an incompetent property clerk.  The prosecutor has a sudden, overwhelming feeling of sympathy and declines to retry the case.  The prosecutor somehow completely drops the ball and the defendant is denied his statutory speedy trial right.  Who knows.  It could happen.  But it’s a long shot.  A real long shot.

One of the most frequent questions asked by defendant is, “what are my chances?”  Not being a great oddsmaker, I rarely give numbers, and almost never give numbers that suggest that a positive outcome is likely.  My preference is to explain the situation in real terms, and leave it to the defendant to decide whether to roll the dice. 

In many respects, the criminal justice system is like a casino.  While we do everything possible to improve the chances of winning, it ultimately comes down to a roll of the dice.  No one ever knows for certain whether a defendant will roll a 7 or crap out.  But the analogy fails in one critical respect:  A gambler can walk out of a casino any time he wants.  Once embroiled in the criminal justice system, a defendant doesn’t have the option to decide that he doesn’t want to play.  He’s in the game, whether he likes it or not.

The least I can do is make sure that the defendant understands the rules of the game so that he can make the most rational choice.  Then again, the next lawyer he calls may well tell him to come on down with his retainer in hand so he can get to work. 

Many significant legal decisions produced vast good for society, but nothing for the named defendant.  Had the defendant chosen not to pursue an appeal, or aimed his sights only on those issues that would have a possibility of achieving the outcome he sought, rights that are now cornerstones of the criminal justice system might never have happened.  But a criminal defense lawyer’s first duty is to the living, breathing person.