What’s the difference?


Does a lawyer make any difference if I’m guilty?

A man approached me outside of Court the other day and asked if he could speak to me.  He had been charged with a serious offense and wanted to know what to do.  He had his choice of attorneys, but after making some calls, he narrowed his choices to two candidates.  One offered to handle the case for $5,000.  The other lawyer offered to handle it for $2500.

“Look, I’m no dummy, I screwed up, I’m guilty” he said candidly.  “My question is this: Why should I pay $5000 when I’m just going to wind up with the same thing either way.”

I understand his concern, and can appreciate where he’s coming from.  In some cases, there may be little an attorney can do to protect his client from the inevitable.  But those cases are rare, and in truth a good attorney can make all the difference in the world.  I’ve seen the difference an attorney can make in a case first hand, from the perspective of a Prosecutor and defense attorney. I can recall a number of cases where, as a prosecutor, I was stunned by the defense attorney’s failure to identify issues that could have made a significant difference in their client’s case.

An experienced and well informed attorney will assess the offer and advise his client whether to accept it.   The ultimate question in this analysis is whether the offer is (a) better than the client could reasonably expect following a trial and (b) whether it is reasonable to believe the offer can be improved.

As a Prosecutor, I was responsible for reviewing cases to determine whether any plea bargain should be offered to a defendant.   Prosecutors offer reduced pleas to defendants in most cases, in part because they know they cannot take every case to trial– they simply don’t have the time or resources necessary.  When they review a case to determine what offer should be made, they look at two general factors: a defendant’s criminal history and the strengths and weaknesses of their case.  Once they have reviewed a case, they will communicate their offer to the defense attorney.

Every criminal statute in New York is categorized and classified by the severity of the punishment a court may impose upon a conviction.  This guy was charged with a Class C Violent Felony, so if he were to be convicted, he would face between 3.5 and 15 years in prison (he had no prior convictions).  A prosecutor reviewing the case is most likely to offer a one step reduction in his case, meaning they would offer to reduce the charge to a D-Felony, bringing the possible sentence down to 2 to 7 years.

An attorney that doesn’t take the time to gather the facts about the case or lacks the experience to identify issues with the Prosecutor’s case, is likely to advise a client to accept that offer.  A more experienced lawyer that knows enough to dig deeper into the matter may find issues that allow him to advise the client that the offer could be better.  He may reject the one step reduction and make a counter offer to the Prosecutor, proposing a two step reduction to an E felony, which would make probation possible and would cap the possible sentence at four  years, max.  Because this client did not have any prior convictions, it would be reasonable to expect a sentence of probation is appropriate.

An experienced attorney will also know what is necessary to secure that sentence, and present facts to the Court and Prosecutor to make probation more likely.  So while it was reasonable for him to expect a one step reduction no matter who he selects as an attorney, it’s clear that retaining a better lawyer could lead to a better result.

His question also raises a more important point: A defendant’s actual guilt or innocence in a case is not as important as the quality of the case against him.  The ultimate question in any criminal case is not whether a defendant is actually guilty, but whether the Prosecutor can prove their case.

Some people are offended by that statement.  It would be wonderful to think that the criminal justice system is empowered with the ability to deal with absolute truths, that the results in any given case are based upon irrefutable or inescapable truths.  Unfortunately, after nearly 12 years in this business, I can tell you unequivocally that the results in any given case have little to do with what really happened.  It’s natural to mistake the Court for some superior omniscient power that dispenses absolute justice, but at the end of the day, the system is and always will be flawed.  Any result in any case is not based upon the truth, it’s based upon evidence.   Court’s don’t offer infallible judgment, they offer a determination of whether there is sufficient evidence to convict a person of the charges they face.

An experienced attorney will know the limitations of the Prosecutor’s case, and will know with reasonable accuracy what the prosecutor can prove at trial.  That knowledge and experience will allow the attorney to make credible arguments to the Court and Prosecutor that provide leverage in the negotiating process, which in turn will improve the final result.

These negotiations are really no different from any of the negotiations you’ve faced in your ordinary life.  If you are car shopping, you may arm yourself with knowledge about the car you want to buy, so that when the dealer offers a certain price, you can credibly argue that you can get a better deal somewhere else.  The law is different only because the knowledge necessary to successfully negotiate a better deal is the result of years of education and experience.  A car shopper can find comparable prices on the internet, and may even have enough knowledge about cars to identify mechanical defects or issues that may effect the price.  A defendant may have knowledge of their particular case, but they will have no basis in knowledge to argue legal issues that may impair the prosecutor’s ability to prove the charges against him.

It’s wise to rely upon an experienced attorney to conduct this analysis, and it’s even smarter to select an attorney whose experience and knowledge results in a more thorough analysis.

In my opinion, a defendant’s attorney can be the only thing standing between him and a prison cell, and my experience has confirmed that again and again.

James Quinn Auricchio, Esq, is a criminal defense attorney with offices in West Seneca and Buffalo, NY.  A former State and Federal Prosecutor, he handles cases in Courts across Western New York. He can be reached at 716.941.4336.