Fight Everything: When You Can’t Afford to Lose

In this episode, Attorney Cowan talks about how to win hopeless cases by fighting everything!

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The problem is that it’s very easy for the lawyer to start matching cases to patterns and say, “Well, the last five cases I had that were like this all ended the same way, so I assume this case will do the same thing that those five did.” And I’ve seen cases where lawyers assumed that a case was going to be a guilty plea, and then at the last minute their client said, “I can’t take this guilty plea,” the judge said, “That’s fine, we have jurors in the next room,” and the lawyer was kind of caught with their pants down, because they weren’t prepared for trial.

The strength of your case as the defendant rests entirely on your ability to force the case to trial. And if you’re not prepared to do that, then you have no bargaining power over any of the rest of it.

Hi, my name’s Andy Cowan. I’m a lawyer in Cambridge Massachusetts, this is part of our series on youtube on how to win a criminal case, and today we’re going to be talking about how to win a criminal case by fighting everything. This is perhaps what most people think of when they imagine a criminal defense. But it’s become a little bit of a lost art, and it’s not appropriate for every case. So I’m gonna talk about what cases we’ll use this strategy for, and how it works.

First of all, what do we mean by “fight everything”? Here’s what I mean. We leave no stone unturned. We interview every witness. I visit the scene of the alleged crime. I take photographs. I visit it at the time of day when the alleged crime occurred. I file motions for discovery. Motions for every little nook and cranny of the prosecutor’s case. And I will do everything imaginable to make sure that I am ready to take your case to trial on a moment’s notice, and that when the trial date does come that we are ready to put up the fight of a lifetime.

Primarily this strategy is one that you’ll employ in what I call the “hopeless cases”, and cases you can’t afford to lose. What I mean by that is the cases where you get the case and you look at the police report and your first reaction is, “Oh man, I’m sunk! This looks like such a strong case for the government, it looks like they have overwhelming evidence, and the plea offer is double digits in the state prison, I can’t take that, I’ve got a life to live!” You need a defense. And your defense in this case is going to at least start out as fight everything.

Now, when I say it’s a lost art there’s a couple of concerns that I often hear when I talk about this defense. One is, “Well, isn’t that just gonna aggravate the prosecutor? Don’t I need to, like, make a deal, and maybe make nice with the prosecutor so I get a good deal?” Look. If the plea offer is double digits in the state prison, or maybe your in district court and the plea offer is two and a half years in the house of corrections, that’s still years off your life. What are we worried about aggravating the prosecutor? They’re trying to put you in jail! They’re already not on your side.

And so I’m not particularly worried about staying on their good side. I’m worried about aggravating them so that they want to get rid of me. We’ll talk about how this works in a minute.

People also worry about will I aggravate the judge? And, what I have to say about that, is that I’ve talk to a lot of judges, and I’ve gotten to know a lot of judges over the course of my career. And with very few exceptions, judges want to go home at night and they want to be able to go to bed thinking that they made fair and correct decisions in court that day. And they feel much better about those decisions when they see a lawyer standing up and arguing for a client. In other words, they don’t know about what discussions you and I have had in the back room of my office. They don’t know why we’ve decided to file a motion, or not file a motion. How we’ve decided to plead or go to trial. All they know is what it is we’ve presented to them for decision that day. And so if a judge feels like, “Gee, I know that Mr. Cowan comes in here and fights everything all the time,” they’re going to feel much more confident that whatever decisions they make in that case, they have made with the full benefit of the strongest argument that could be made on your behalf. So I don’t worry about aggravating the judge or the prosecutor, I worry about protecting you, my client.

Now, I talked a minute ago about trying to wear down the prosecutor, so they want to get rid of me. And here’s what I mean by that, our criminal justice system takes less than two percent of its cases to trial. The overwhelming majority are disposed of by plea deals. And in cases where you do want a trial you can wait months, or even years, to get your day in court just due to congestion and delays in the court system. And what that means is even a small percentage increase in number of the cases that go to trial, say up to three percent, or four percent, would absolutely cripple the criminal justice system. And prosecutors would start having to make very hard choices about which cases they think are worth prosecuting.

This is an important safeguard of all of our liberty, because if prosecutors and police can pick anyone and charge them with any crime, knowing that there’s a very high likelihood that they’ll plead guilty, then they can. They can go after anyone, at any time, for almost any reason. And if we’re going to live in a free society, that means that there has to be some limit on the government’s ability to charge people with crimes and put them in jail.

Right now in the system that we have, the very best way that we have to impose that limitation, is to require prosecutors, police officers, judges and court staff, to give cases individualized attention. The way that we do that is by filing a lot of motions, by fighting your case, and by making it look like, “Yeah, no, really, we’re gonna go to trial, and we’re gonna tie this court up on this trial, for two, three days in district court, two, three weeks in superior court, and we are going to spend everybody’s time on this unless you give us a reason to do something else. Now maybe that reason is you, the prosecutor, come down on the plea offer until it’s something that we can accept. Maybe the original plea offer was two and a half years in the house of correction in district court, and we talk the prosecutor down to a suspended sentence, meaning that you don’t go to jail at all. And maybe that means that now you’re willing to consider a guilty plea in this case.

Or maybe you’re in a situation where you absolutely cannot afford to plead guilty, because you can’t have a conviction on your record. And in that situation, you’re not just threatening to go to trial, we’re gonna go to trial unless we can get that case dismissed. And if we lose the trial, we’re going to appeal. And if we win the appeal and we have a new trial, we’ll go to trial a second time. And if we lose the second trial, we’ll have a second appeal. And we’re not gonna stop buddy, because you can’t afford to lose this case. And you need an advocate who understands what that means. And who understands how to go the whole nine-yards with your case.

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