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To Go to Trial Or Not Go to Trial

To Go to Trial Or Not Go to Trial

In this week's Legal Docket, DUI attorney Jonathan Rands and KGMI's Dillon Honcoop discuss different scenarios of when going to trial, a legal right, makes sense, and when to take a deal.


Episode Transcript

Dillon
To go to trial, to not to go — what's grammatically correct there? I'm not sure. It's a question ...

Jonathan
To try or not to try.

Dillon
Well, yeah, I guess you try a case. Jonathan Rands with us on the phone this morning here on the Legal Docket. And that's a question, something we've talked about before. We talked about this in other areas of law. We've talked a little bit about it in DUI, in fact, you told us recently here on the program, just how much you stress out over trials. It is an all-consuming activity for you, where for what, days, even weeks if that's how long a trial goes, you eat, sleep, breathe everything about the case so you're 100% engaged.

Jonathan
Yeah, I haven't had an opportunity yet where it's been more than, I don't know, three or four days. It's hasn't stretched into weeks yet, but I mean there are cases coming up where I envision them to be a week long or better trial. But in most cases, DUI cases are ... not really short trials in the sense of misdemeanors. I mean misdemeanor cases are about a day long from start to finish. DUI trials tend to take about at least a day and a half and sometimes stretch into about 2.5, maybe 3 days depends on if you had a whole lot of witnesses. But they're a little bit longer in nature simply because you have a few more witnesses than other types of cases. By that I mean there's an arresting officer. There's generally a breath test technician. And there traditionally has always been a toxicologist. However that trend is starting to dissipate because the breath test technicians are starting to take over the role of state toxicologist because the big toxicologist are not necessary for breath testing anymore. And they used to serve a dual purpose where they'd testify about a particular component that attached to the breath test machine. And then they would talk about the general effects of alcohol, but since the new breath test machine does no longer involve their office, they no longer necessarily come to trial unless it's a blood case and so the general effects are being taken over by the other two witnesses. So trials are somewhat dictated in length by how many witnesses we have to get through. But their also dictated by how quickly we start, how quickly we select jury, how, for lack of a better word, long-winded we are, in terms of prosecutors and defense attorney's opening statements. And how many questions we have to ask and material we have to get through, in terms of direct examination, cross-examination of the witness that actually testify during trial. 

Dillon
Well —

Jonathan
But you're absolutely right. It does take an enormous amount of preparation, thought, energy and the mental energy that's expended leading up to or during or even after a trial is simply enormous.

Dillon
Local DUI attorney Jonathan Rands on the phone with us this morning here on the Legal Docket on KGMI News Talk 790. I am Dillon Honcoop. Now correct me if I'm wrong. A trial, I mean people are familiar with seeing trials on TV. They think if someone is arrested, there's going to be a trial. But a trial, except in a very few cases, a trial is not a foregone conclusion. So it's all about this decision about whether you want a case to go to trial, which means in front of a jury of this person's, this accused person's peers. Or if you want to settle the case without a trial. Am I characterizing this correctly?

Jonathan
Yeah, I think so. A trial's an absolute right. So whenever somebody is arrested, you look at a case in terms of what would a trial look like, in terms of what happened or what led up to the arrest of what happened after the arrest. And if a trial is entrenched in our constitution when a person's accused of a crime. They are more rare, statistically speaking, then the case resolving in some other way. And the system really can't handle every single person accused of a crime exercising their right to go to trial. There's just far too many charges out there. There's far too few court rooms and judges that would be able to handle every single person saying, gosh darn it, no matter what happens I'm ready for trial.

Dillon
Right.

Jonathan
And that's, I mean, plea bargaining or dealing cases or whatever term you want to use for negotiating into a lesser charge or negotiating into a guilty plea of some sort, really is what makes the system work because it would just come to a complete standstill, and cases would have to be dismissed of violation of speedy trial rule if every single person charged exercised their right to go to trial.

Dillon
So that's one way to resolve — because a case essentially starts when, in your case, in DUI law when someone is arrested and technically what that would be accused of the crime of driving under the influence. And there are multiple ways a case could be resolved from that point. One is through a trial and ultimately a jury saying guilty or innocent. But there are plea deals, there are other ways ... cases get dismissed. I mean, what are the options here we're looking at of how a case could be resolved other than going to trial? 

Jonathan
A case can be resolved by virtue of a motion to dismiss, or a motion to suppress. And everything that we talk about in the criminal realm, or the criminal justice system in this context, is either a pre-trial motion, obviously indicating this happens before a trial has been initiated, or there are sometimes motions within a trial, which have a different name. But ultimately a case can be resolved by filing a motion to dismiss for some reason. Whether the reason, in DUI context, whether the reason because the stop is unlawful, or because the arrest is unlawful. So a motion that is successful under either of those captions, if you will, or rules that we — under the criminal rules of Washington courts, which is criminal rule 3.6. Any motion that's granted for a dismissal, that would terminate the case. There would be no trial, the judge would make a ruling that ultimately would find, that for some reason, something was wrong and the case can't move forward, in which case the case is dismissed and the person's arrest always stands, but there would be not a not guilty finding nor would there be a guilty finding, it would be case dismissed, over and done with, and the person doesn't have a criminal history. 

The other type or way to resolve it is to negotiate with the state prosecutor or city prosecutor and sit down and sort of hammer out the details. Say, hey listen, we're both experienced attorneys. This is how the trial's going to go. There's a question as to whether this particular piece of evidence would be admissible. And if this particular piece of evidence is not admissible, meaning a jury could not hear this piece of evidence, that's a pretty big whole in the case. And as a result, there's a question of whether the jury would convict said defendant. And if that happens, we usually come to a resolution by saying, ok, let's agree to disagree. I'm not saying your motion will be successful, I'm not going to say it's unsuccessful, but I agree there's some risk here and I'd like to engage in some risk assessment. And both parties can walk away happy by — the typical thing or the typical result is there's an offer to reduce the charge, in the DUI world, to something called reckless driving or potentially negligent driving, or another crime called reckless endangerment. Those are sort of three typical reductions that are possible. And if a case is not going to tried and/or the person is not going to plead guilty as charged, that's a typical resolution, in that fashion, one of those three things. 

Dillon
So I have heard in the past, and we're coming up on a break in a little bit here, we can start to get into this, but we're going to have to flush this out I think more on the other side of the break. But I heard before, well, it's a bad idea to go to trial. Juries are fickle. You don't know what they're going to do, so really, yes, you have a right to a jury trial, but maybe it's a bad idea and you want to resolve a case before getting to that point. Is that true? How do you start making that decision?

Jonathan
Well every case is different. And I don't ever think it genuinely starts out as, hey, this is a bad idea. I always think that having the right to go to trial is a really good idea because, well, there's so many thing that have to happen for either side to come out on top. For instance, a first offense DUI charge with a breath test of say a one three or .14. That's, in most jurisdictions, that's not really a case that the prosecution is going to be willing to negotiate down for a variety of reasons. It's one of those cases where it's just kind of a Never Never Land. If there isn't any spectacular problems with the stop or the arrest or the breath testing procedure, in most jurisdictions, the prosecutor's going to say, here's your options: your client can plead guilty as charged or you can always exercise your right to go to trial. In that scenario, trial is definitely not a bad idea. Because if a person walks into the court and says, I don't want to exercise my right to trial, and I want to plead guilty, the sentence they would get is set by statute. Versus going to trial, and if they are convicted by a jury, or even a judge if it's a bench trial, the sentence that is imposed would be absolutely no different in 90% of the jurisdictions in the state. Meaning, if you walked in a court and say, I don't want the rigamarole, I don't want the stress, the time, the anxiety of going to trial, I just want to plead guilty and get it over with because I'll probably Bellingham convicted anyway, you've really left open a possibility and in that scenario, I always council my clients to exercise your right to go to trial. As much time and energy and stress as it is on my side of things, it's a constitutional right, and you just never know what's going to happen. There's all sorts of things that pop up in trial. And it never ceases to amazing me all the things that should happen that are kind of a no-brainer in terms of this question or this sequence of events, or just what happens in trial, it never ceases to amaze me to see or hear something go wrong. And when something goes wrong, it's usually irreversible or irrecoverable and during a trial, when that happens, there's nothing wrong with stopping everything and having a quick negotiation.

Sometimes witnesses don't show up when they're expected to show up and they're critical. Sometimes a prosector is having a bad day and just can't get the questions right that they need to ask in order to get the evidence admitted under the rules that we play by in trial. And like I say, perhaps a judge is more favorable or issues rulings preliminarily before the trial starts that are more favorable to one side or the other that makes is that much more difficult to prove the case of to defend the case. So sometimes those thing really dictate, or really cause the person to have to pivot in the middle a trial, and sometimes it's a good pivot and sometimes it's a bad pivot, in terms of I may be sitting there telling a person absolutely we should go to trial, then we get a ruling that's really going to make it hard to defend the case, it's not unusual to say, you still want to go forward? I mean, we still stand a chance, not a great chance, but a chance versus another ruling that we pivot and say, boy, that was a really excellent ruling in our favor. There's no longer a breath test and you didn't do field sobriety tests and now the question is, do they have the evidence to convict? 

So I can never say, hey good or bad. It's obviously, or sorry, not obviously, it's more easy to say it's a bad decision if there's something that you're giving up. If you have a breath test that's over a .15 and you're looking at a different type of sentence than if you're under .15, and the evidence is strong against you and the prosecution has offered a plea bargain, of sorts, where they'll amend the charge to an under .15, which is with a lesser penalty, well, then you're giving up a lesser sentence that's guaranteed versus going to trial, losing and getting a worse sentence. In which case, your risk assessment has sort of backfired against you. 

Dillon
Jonathan Rands, local DUI attorney with us on the program this morning. With us by phone and if you need to reach his office you can do so. His office is right in downtown Fairhaven. (360) 306-8136, his website is jrandslaw.com. His last name is Rands, r-a-n-d-s. jrandslaw.com check that website out and we've got to take a break now, but we'll be back, and on the other side we will continue this conversation: to try or not to try. We're talking about criminal cases here, court cases. Do you go trial or do you not go to trial? Is is a good idea? Depends on the case, that's what we're hearing. We're learning more about when you do and when you don't make that decision to go before a jury of your peers.

--

Dillon
We're back; we continue in studio this morning, me, Dillon Honcoop. Not in the studio, but with us by phone, Jonathan Rands, local DUI attorney. We've been talking about trials. Jonathan actually just got done with a big trial. Not all cases go to trial. For people who have never been through this situation, maybe never been arrested, maybe don't know anything about it, not all cases go to trial. There's a question here, if a defense attorney feels it's advantageous for the accused to go to trial or not to go to trial, we've been parsing this out with Jonathan this morning. You've been talking about the times when it is a good idea to go to trial. What are some of the other possibilities here?

Jonathan
You mean, when is it not a good idea to go to trial?

Dillon
Yeah. Yeah, exactly.

Jonathan
Well, first of all, we always need to back up to the basic premise of whatever choices that are made, it's my client's, or the defendant's, choice whether to go to trial or not. It's their right if the case is against them. The burden of proof is always the state's or the city's to prove the case beyond a reasonable doubt. And sometimes I may say to a client or other attorney's may say to their clients, hey this is a really terrible idea, and here's why. And a person can always say, you know what, thanks for your advice, but I'm going to exercise my rights. And the situations where it's a terrible idea is where, and keep in mind, we always get to see all of the evidence. But not all of the evidence will necessarily be heard by a jury, and that's because of legal motions. It's because of procedures and protocols that may or may not have been followed. But we always get a complete picture and we always have an idea of whose going to say what. And if you've done your job correctly, if you've interviewed the witnesses and you know exactly what they're going to say word for word, and you've transcribed what they're going to say or recorded what they're going to say, you know exactly what evidence is coming in and what evidence is not coming in knowing the rules like we do. So in a situation where the evidence is overwhelming, and you're really relying on nothing more than dumb luck and there's an offer in front of the person that's going to save them days / months / weeks / years of time and they blindly decide just for the sake of exercising their right to go to trial, I would say that would be a bad situation, but for the fact that perhaps the end result doesn't necessarily matter to them. The end result is tolerable. And I worked in this situation where the end result of a first offense DUI is one or two days of jail. The stakes aren't spectacularly high compared to years in jail. 

However, on a second, third, or even fourth offense DUI we are starting to look at significant time. As I've talked about before, the difference between first offense and second offense is either 30 days or 45 days. Then it jumps to 90 days and 120 days. So by all means, if we're in a situation where the evidence is one that, you know, if it comes in, it probably is going to come in, likely that a jury, in my experience would convict, and the person has an offer on the table for a lesser charge or even a lesser recommendations that would likely be followed by the court, and the difference is significant, well, I think that's probably a bad idea. Unless of course, the person says to me, hey, you know 120 days, I'm going to be eligible for work release, I can sleep in jail, I can go to work and I'm not going to lose my job, but I really feel strong about trying this case. Well then, you have to respect your client's wishes even if you think it's a bad idea. I also think it's a really good idea to have a very frank conversation, you follow that up with a letter sometimes say, you know, I respect your right to go to trial. I'm going to do everything I can to win this trial and force the state to prove this case beyond a reasonable doubt, and if they can't we walk away, I wouldn't say scott free, but without a jail sentence. Just for sake of cya, to make sure that at the end of it, if a person says, I can't believe that you didn't tell me to do something different, all butts are covered. 

But I'm an advocate of trial. I love trial. I think it's a time that is, what lawyers are trained or should be trained well to do, and it's one of the most rewarding periods of practice for me. Couldn't happen very often, but I think maybe because it doesn't happen that often that's what makes it so exciting and exhilarating because it truly is, the whole purpose of a trial and the whole procedure of a trial is really the constitution in action. So from a historical standpoint and from an exercising-your-rights standpoint, to see the system at work, it really is truely exciting to be in. But it's not always exciting for my clients.

Dillon
Yeah.

Jonathan
I was in trial for 2 days last week, my client ultimately didn't testify and that was his right. And we chose not to do that for strategic reasons. But he sat there from eight in the morning until five o'clock with three breaks along the way that we get. And breaks here and there. And you really are sort of a bystander watching the lawyers work, the police officers work, the judge work. So it can be a frightening time as well because you don't know the answer until all is said and done. And even then, when it's all said and done, the jury gets to deliberate and they jury can take anywhere from five minutes to five days or longer. And just waiting, waiting, waiting until they come out and announce what their decision is, it can be a very difficult period of time for a lot of people.

Dillon
Not for the faint of heart, it sounds like. Jonathan Rands local DUI attorney, we're out of time. Thanks for joining us by phone this morning. To try or not to try, good question. Maybe you have some questions for Jonathan, (360) 306-8136 is the phone number. The website is jrandslaw.com. Again, Jonathan Rands our guest this half hour. Rands, his last name is, r-a-n-d-s. So j, just the letter j-r-a-n-d-s law, so l-a-w, jrandslaw.com. Check out the website; I can't recommend it enough. And again the phone number one more time (360) 306-8136. Jonathan, thanks for your time this morning.

Jonathan
Thanks for having me again.


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