14. Going to Trial

When federal authorities charged me in 1987, I knew I was guilty. Still, I went to trial without adequately understanding my options or considering how my decisions could affect the years ahead.

The result of that decision translated into a conviction, a 45-year sentence, and serving 26 years in federal prison.

I don’t know what sentence I would have received if I had pursued a different course. I do know that I should have begun learning earlier and asked more questions before deciding.

Your circumstances may differ from mine. The decision about trial requires examining your case with counsel, understanding the alternatives, and considering the consequences of each.

Understand What the Government Must Prove

A criminal charge does not establish guilt. At trial, the government must prove guilt beyond a reasonable doubt. As my judge said to the jury, they can have a little doubt and still convict.

A person may contest the charges for a number of reasons:

• They didn’t commit the offense.
• The person doesn’t think the evidence establishes guilt.
• A legal defense applies that may support a not-guilty verdict.

The defense attorney will evaluate those issues and explain the strengths and weaknesses of the case.

• Ask what the government must prove for each count.
• Which evidence supports its allegations?
• Which evidence can the defense challenge?

Every case is different. In my view, however, a person is far better off by understanding the opportunity costs that come with every decision.

Consider the Financial Costs

For someone paying for private counsel, trial preparation can involve substantial expenses. Attorneys may need to review records, interview witnesses, prepare motions, and spend days or weeks in court. Investigators, expert witnesses, travel, and other expenses may add to the cost.

Ask counsel for an estimate, an explanation of what the fee covers, and the circumstances that could increase it. Understand whether sentencing or an appeal would require additional fees.

In federal court, I would expect the costs to exceed $100,000 for a trial, and many people spend well over $1 million to proceed through trial.

Even if a person has a federal defender, and doesn’t have to pay the financial costs of a trial, there are many factors to consider. There are many practical burdens that each person should think about before making the decision on whether to go to trial.

Compare the Sentencing Possibilities

A conviction after trial may result in a longer sentence than a negotiated resolution would have produced. A plea offer might include dismissal of charges or sentencing concessions that would not apply after trial.

Acceptance of responsibility can also affect the calculation under the federal Sentencing Guidelines. A qualifying defendant may receive a reduction, and timely notice of an intended guilty plea can support an additional reduction.

Ask counsel to compare the actual plea offer, if one exists, with the sentencing possibilities following conviction at trial. The comparison should address the charges, mandatory minimums, statutory maximums, and anticipated guideline calculations.

Understand which figures represent estimates and which limits the law or an accepted agreement would establish. No one can promise an acquittal.

Prepare for Stress and Uncertainty

Waiting for trial can affect sleep, concentration, relationships, and the ability to plan. During trial, a person may hear witnesses describe painful events or challenge their account. Family members will feel the stress, and there may be lasting damage to your reputation.

Consider whether you’re prepared to deal with those complications. Take those factors into consideration when making a decision on whether to go to trial. Individual factors are unique to every individual, and in some cases, they are more important than the evidence and legal issues.

Prepare Before Making the Decision

Counsel can evaluate the law, explain the evidence, and recommend a course. The decision whether to plead guilty or proceed to trial belongs to you. Take time to understand the advice and resolve questions before committing.

Begin with these questions:

• What must the government prove for each count?
• Do I have a viable defense?
• What should I expect to pay for a trial?
• How would a conviction at trial influence a sentence?
• How will a trial influence my family or career?

The comprehensive mitigation strategy you build should consider your response to those questions. I did not consider such questions when I made the decision to go to trial, and I paid a heavy price.