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What Do You Do When The Cards Are Stacked Against You?

Getting arrested and charged with a crime is never a good thing.

Granted, there are situations that are better than others. The offense isn't violent, you're a first-time offender, the State Attorney's Office is not looking to put you in jail.

While simply having a case - even not a terribly serious one - hanging over your head can be daunting, for many there is a way out. Diversion programs, probation, maybe the evidence is in your favor and your attorney will get the charges dismissed.

It's great when that happens.

But what about when the situation does not fare so well for you. The charge is serious, the State Attorney is seeking a significant prison term, and the evidence is more than enough for a jury to find you guilty.

What then?

I spend a lot of times looking a competitors' websites. Fellow defense attorneys, many of whom may promise you the moon and stars, and pretend that there is no such thing as an unwinnable case.

However, that is not true. Sometimes the cards are stacked against you. Sometimes the evidence is so strong and the charge is so serious that there are only very few options available - none of them, frankly, are that great.

The question remains...what do you do then?

If you are charged with a serious crime, such as a violent or sexually-related felony, and the evidence is convincingly against you, don't be a fool. Listen to your attorney. A trial is not likely to result in your freedom if there are independent witnesses, a testifying victim, a confession, video surveillance, DNA, and fingerprints. Come on...let's be real.

If the evidence is against you, how will a jury react? What will the judge do? Are there mandatory minimum sentences that apply to your charges? If so, a guilty verdict will result in a lengthy prison sentence.

You must do all you can to avoid that.

In this case you and your attorney must explore the lowest possible sentence that you could receive. Where the facts and law regarding the case do not help you, try mitigation. Is this your first offense? Have you led an exemplary life? Have you served in the military (this always helps)? Do you suffer from a mental health disorder or drug addiction?

These are just some mitigating factors that could persuade a prosecutor to waive a mandatory minimum or at least come down substantially when negotiating a plea.

If you can't get somewhere with the State Attorney, how about an open plea to the court? Your attorney may file a Motion for Downward Departure, citing statutory criteria, and you could ask the judge to sentence you. This is risky, but sometimes it may be your only choice.

If you must, and only if you must, do you go to trial. If convicted, you may appeal the judgment and sentence of the court, as well as file post-conviction relief motions should the appeal not go your way.

Remember that even the most skillful courtroom advocate can only do so much when the evidence is overwhelmingly against you. It is critical that you attorney have a realistic outlook and not convince you that he or she can beat the case at trial when that is clearly not a probable outcome.

Your attorney needs to be able to tell you the truth - even if that truth is not the truth you want to hear.

The attorney serves a much larger role than just somebody who defends you inside a courtroom. The attorney's ability to recognize the strengths and weaknesses of a case, as well as negotiate and mitigate when necessary, is just as important, if not more important that mere trial advocacy skill.