NEW: Is it sometimes better to plead guilty?

Once is happenstance, twice is coincidence, the third time is enemy action

Yes.

There are some occasions when pleading guilty is the only rational choice.

When you are facing charges, it isn’t enough for your lawyer to try to figure out a defence for you.

Don’t get me wrong: that’s obviously very, very important and it’s what I spend a lot of time doing.

I am always trying to find a way to win.

But even where the disclosure (evidence) that we have been provided looks tough on paper, we still fight.

Why?

Because cases are not won based on what is in a statement that’s been handed to your legal team.

Cases are won only -only- on what is said in the witness box in court.

"The judge doesn’t know about your previous convictions

or ‘previous bad character’ if you have any.

But if you fight the case and lose,

then the judge will be told all about your previous convictions

and this is where the trouble begins"

No case is easy and victory often turns on something that happens in court on the day of your trial.

In other words, something that you couldn’t predict before the trial began.

That is what court is like: the prosecution’s case can succeed or fail based on the evidence given in court on the day of the trial. 

The Chopping Block

But I also look at other issues, other questions.

One of them is, ‘what if we lose?’

What happens then?

Everyone talks about winning and ‘how we’re going to do it’ etc.

But I like to look at every avenue.

One of them is losing.

If we lose what does that look like?

In most cases my clients have no previous convictions. If they lose, they will face a disqualification and a fine. That’s generally it.

And if they lose, they can appeal that disqualification to a different judge on the Circuit Court who will hear the case again.

Jail is not a realistic possibility.

That’s because in most cases there are no ‘aggravating factors’ in the case.

What do I mean?

No crash, no bad driving that forced other road users to take avoidance action as you approached etc.

These are aggravating factors.

Men Behaving Badly

Another aggravating factor is behaving badly while in custody.

This is little understood but it's a real threat.

If you’ve been verbally or physically abusive your chances of success are heading towards nil, even if the law is on your side.

More on the science behind that below...

So, I keep one thing in mind all the time:

Defeat is always a possibility in court.

Always.

No two judges are the same and they don’t necessarily see the same issues in the same way.

Jail, as a punishment for first-time offenders, is not likely.

That’s not to say jail isn’t a possibility.

If you crash into someone and cause injuries jail is now likely even if its your first offence.

But 90% of drink driving cases don’t involve injuries to anyone else.

So, jail is not realistic.

But there are some cases where jail is not only very possible but likely.

These cases have an added layer of complexity: previous convictions.

These can lead to a catastrophic outcome for you if it goes wrong i.e. jail.

The Pressure Room

When a case is being heard in court the relative knowledge of the prosecution and defence is different to the judge.

In other words, there are things that the prosecution and defence know that the judge doesn’t.

One of them is the existence of previous convictions.

Or the existence of ‘bad character’ evidence.

"If you’re a man and you’ve been verbally abusive

to a police officer don’t expect any sympathy from the court.

If you’re a man whose been verbally abusive to a

female police officer you’re in deadly danger"

When a judge or jury is about to hear your case, they are not aware -and cannot be told- of any previous convictions you might have.

Likewise, they can’t be told of any previous ‘run-ins’ with the law that didn’t result in a court conviction i.e. ‘bad character’ evidence.

Why?

Because if the ‘trier of fact’ (the technical word for a judge or jury) knew about your previous convictions there would be a danger that they might conclude at the beginning that “if he’s done this sort of stuff before he’s probably done it again here”.

There would be a danger that the court would assume you’re guilty before the case had even begun.

So, the judge doesn’t know about your previous convictions or ‘previous bad character’ if you have any.

But if you fight the case and lose, then the judge will be told all about your previous convictions and this is where the trouble begins.

Read on.

Running The Gauntlet

These are the other cases.

The ‘special’ cases.

Maybe this is a case like yours.

These cases fall into two groups:

·       where the person has a few previous convictions for road traffic offences -specifically drink driving- and,

·       where the person has behaved badly while under arrest.

If you’re in either one of these groups, then you need to take a long hard look at your case.

You need to do this because if it goes wrong, if you lose, you’re at high risk of jail.

You’re not the same as most other people coming to court with no previous convictions and who’ve behaved themselves.

If you’ve got previous convictions for drink driving, you’re someone whose shown before that you have no problem with drinking and driving.

Clearly.

You’ve been convicted of it before.

It wasn’t a ‘once-off’.

You’ve been convicted and disqualified before, but you don’t care.

You don’t care about the rules of the road, about possibly putting other road users in jeopardy: if you want a drink and fancy driving afterwards, well, that’s practically a constitutional right, isn’t it?

Maybe you don’t think that way but here’s the most important part: the judge thinks you do!

The judge thinks you don’t give a damn about the law.

And remember something else: these guys have special powers, superpowers if you like.

They’re the only ones in society who can throw you in jail.

And some of them really like that part, especially for people like you who don’t seem to care.

If that’s you, you need to think long and hard about fighting the case.

"You’ve been convicted and disqualified before,

but you don’t care.

You don’t care about the rules of the road,

about possibly putting other road users in jeopardy:

if you want a drink and fancy driving afterwards,

well, that’s practically a constitutional right, isn’t it?"

 Maybe you don’t think that way but here’s the most important part:

the judge thinks you do"

Guilty or Not Guilty Explained.

When you plead guilty, you’re deemed to accept that you were wrong and that you will be disqualified.

Not a nice thought I know.

But its quick and carries other benefits.

Because you’ve pleaded guilty the State tend to ‘go easy’ on you when it comes to giving details about the case in court.

Or 'easier' at least.

In fact, if you’ve been charged with two or three different offences the State can sometimes be a little ‘generous’ by withdrawing one or more other charges as long as you’ve pleaded guilty to the main one i.e. drink driving.

After all, you’re not tying up police witnesses in court and something that might have taken 90 minutes has been condensed down to 5 minutes.

You’ve saved the State time and inconvenience.

There’s a benefit for that.

By pleading guilty no witnesses are called to give evidence and the ‘gory’ details of what you might have said or done are kept to a minimum.

Generally speaking.

The judge only wants brief details here because you’ve accepted your guilt.

If you plead not guilty and fight the charges, the State will come at you with everything they have.  

They’ll refuse point blank to consider withdrawing any other charges and will make sure that whatever derogatory comments or bad behaviour you engaged in are mentioned more than once in court.

Just to make sure the judge and court journalist got all that.

Nothing personal you understand, this is strictly business.

Which brings me back to bad behaviour.

"Just like holding a door open for a lady is a sign of a gentleman,

so too is speaking respectfully to her.

Whether she's in uniform or not.

If you verbally abuse a female police officer, it’s over.

Read that again"

Some people can’t handle their drink.

Some of them have a problem with authority too.

They’re not going to have people tell them what to do.

Even the police.

‘This is a free country’ goes their thinking, ‘I can do what I like’.

Funny.

Because the guy up there on the bench who throws people in jail every day, thinks different.

Enemy Action

We’ve all met people like this in our lives, people who become verbally abusive or violent when they’re drunk.

Some of those people get arrested and when they do, it all comes out.

If you’re a man and you’ve been verbally abusive to a police officer don’t expect any sympathy from the court.

If you’re a man whose been verbally abusive to a female police officer you’re in deadly danger.

These two events: being abusive to a male or female officer are quantifiably different.

When this happens, you will see the judge visibly recoil from what he’s been told you’ve said.  You’ll see him purse his lips.

Sometimes you’ll see him write down what he’s been told, underline it, and put the pen away.

In other words, he’s heard enough.

Or worse.

If he asks the State to repeat it, to make sure that he heard it right, there’s a cruise missile about to be launched at your head.

"You’ll notice the judge now adopting a new role.

He’s not just a judge now, but as a man,

the vindicator of that female police officer’s honour.

If you think any male judge will let any man whose been

abusive to a female officer escape, you’re sadly mistaken"

Being abusive to female police officers is ‘verboten’ as they say in German.

It offends the Judge’s sense of ‘decorum’ towards the ‘fairer sex’.

Just like holding a door open for a lady is a sign of a gentleman, so too is speaking respectfully to her.

Whether she's in uniform or not.

If you verbally abuse a female police officer, it’s over.

Read that again.

You’ll notice the judge now adopting a new role.

He’s not just a judge now, but as a man, the vindicator of that female police officer’s honour.

If you think any male judge will let any man whose been abusive to a female officer escape, you’re sadly mistaken.

Female judges are exactly the same.

The law will not be allowed to get in the way of justice.

But first, some background.

Judges are not all alike.

Tom -the Lord- Denning was one of the most famous judges in England in the twentieth century.

He lived to age 100 and was regarded as a ‘fearless champion of the rights of the common man’.

Once at a legal dinner Denning famously teased his fellow judges by saying:

“Unlike my brother judge here who is concerned with the law, I am concerned with justice’’.

Lord Denning never let the law get in the way of what he thought was just.

If he felt that the wrongdoer in a case had the law on his side, and that he might prevail even though he had been dishonest, unjust or wrong, Denning swung into action.

He would use every scintilla of his legal acumen to stop them from succeeding.

And did.

"In Ian Fleming's book 'Goldfinger' the baddie says:

“Mr Bond they have a saying in Chicago:

once is happenstance,

twice is coincidence,

the third time is enemy action”. 

Deeply religious he invariably sided with the small man when he was up against big business.

For Lord Denning law and morality were intertwined, with morality taking precedence over the earthly law.

“Without religion there is no morality’ he wrote, ‘and without morality there is no law”. 

_______________

Lord Denning was not a ‘one-of-a-kind’ or a ‘man of his times’.

He was not -is still not- unique.

There are a great many judges who think just like Denning, who refuse (privately) to allow the law lead them to an unfair or unjust decision.

Letting someone who has been abusive to a female police officer walk away would be unjust.

Now let’s return to those categories of people who behave badly while under arrest.

You may have the law on your side in your case but if you think that by behaving badly you might still succeed, you have another thing coming.

I have seen very many cases struck out where the judge either felt sorry for the defendant or felt that if they were convicted an unjustness of some sort might occur.

But I have never yet seen a case where somebody having behaved terribly while under arrest has been acquitted.  

Never.

Conclusion.

In Ian Fleming's book 'Goldfinger' the baddie says:

“Mr Bond they have a saying in Chicago: once is happenstance, twice is coincidence, the third time is enemy action”. 

Here Goldfinger was telling James Bond that he would not get away this third time.

So too with drink driving.

"That is the function of deterrence:

as a judge you wave the big stick, so you don’t have to use it.

But sometimes you do have to use that big stick.

I, for one, am not inclined to encourage judges

to wave that big stick at my clients".

 

If you find yourself being prosecuted for a second or third time, or if you have behaved badly while in custody you need to ‘consider your position’.

You need to be aware that if you fight this thing and lose, there’s a strong likelihood of jail.

Remember, jail functions as a punishment to you but it also serves other purposes.

One of them is 'deterrence', or the 'doctrine of deterrence'.

Judge Oddjob in action

Jail has a deterrent effect.

In other words, it serves as a warning to others of what can happen to you if you behave badly in custody or get caught a second or third time for drink driving.  

You're now the example that will be made.

Remember the character of Oddjob from Goldfinger?

His dastardly skill was throwing his steel-lined top hat at people and chopping their heads off.

You don't want that to happen to you, do you?

That is the function of deterrence: as a judge you wave the big stick, so you don’t have to use it.

But sometimes you do have to use that big stick.

I, for one, am not inclined to encourage judges to wave that big stick at my clients.

If you have one or two previous convictions for drink driving, you might still face the risk of jail even if you plead guilty.

Possibly, but likely a suspended sentence.

But that risk of jail is much, much higher if you decide to fight the case and lose.

Because “the third time” as Goldfinger said, “it’s enemy action”.