First the good news, while government does have an intimidating 97+ percent conviction rate, that winning percentage is considerably lower for cases that go to trial. This, of course, makes sense. After all, they convict 100 percent of the people who plead out, which moves the average in that direction. Moreover, you have to be pretty confident of your innocence to choose going to trial considering what you’re up against. In fact, the only times I suggest going to trial is (i) if you’re completely innocent, or (ii) if the best plea deal you can expect still involves a ridiculous amount of prison time, because then you have little or nothing to lose. The choice is obviously yours and you may feel that you have a good case regardless, however, bear in mind, that many completely innocent people do lose at trial and go to prison, let alone people who aren’t but feel they have strong cases. The process is overwhelmingly slanted in the government’s favor. Seriously consider what you’re up against in making this life-altering choice. I’m not trying to talk you out of going to trial, but I would be doing you a great disservice if I didn’t explain the following.
I won’t bother revisiting all the issues of Aggressive Prosecution but be aware, that charges involving willful blindness and conspiracy are almost impossible to disprove. All the government needs is a connection. You’ll also be confronted by inherent biases built into the system. Consider, for a moment, how you felt about criminals and prisoners prior to this whole experience. Bearing that in mind, understand that most jurors come in with the exact same attitude. “The government charged the person. Why would it want to put an innocent woman (or man) behind bars? She (he) must be guilty of something.” The government takes advantage of that attitude from the very start. Remember how I mentioned that the government stacks charges, without any particular rhyme or reason? Well, they’re motivated to do so hoping that jurors will at least find you guilty on at least a few, or even just one. After all, that’s all it takes for them to get their conviction. Jurors, moreover, are not allowed to know the length of the sentence the defendant is facing, which only further tilts results.
Eli R., for example, was charged with 26 counts for crimes he didn’t commit. The Feds were trying to go after his boss by exerting pressure on him. He offered to cooperate and tell the truth, but the Feds working his case said they weren’t interested in the truth, they wanted a “motivated” witness. After a turbulent trial, he was convicted on one single charge, just one. Shortly thereafter, one of the jurors made a surprise call to the Eli’s lawyer congratulating him on the victory. She explained the jury felt it had to give the government something for all its hard work. Little did she know was that “something for the effort” could have led to 20 years. While the judge went relatively lenient with 36 months, that’s still a long time away from your wife and kids, especially when it’s for no good reason. If juries knew the ridiculously long sentences defendants are up against, I highly doubt they’d reach the same verdicts.
Another tactic prosecutors like to use is holding back a charge that might trigger a “mandatory minimum” from the initial indictment. Mandatory Minimum charges, typically associated with guns and large quantities of drugs, require automatic lengthy add-ons to sentencing, taking discretion away from the judge. AUSAs hold this hammer over your head as a powerful threat forcing you to cop a plea, or else.
The next leg of the gauntlet is the prosecutors’ obligation to police themselves in handing over of “exculpatory evidence” and “Brady material,” in the interests of justice. The thing is, this is evidence favorable to the defendant, so you can see how AUSA’s are instinctively reluctant to submarine their own cases when their gut tells them your guilty. It’s also fairly subjective, leaving plenty of room for interpretation and erring on the side of not handing things over. Finally, what’s the actual likelihood of you independently discovering the existence of this key piece of hidden evidence? Even when you do, it’s typically years after your conviction, when they’re almost impossible to overturn. Just ask Ross M. who only got the information after a contentious Freedom of Information Act request, a full 6 years into his sentence. Others, like Woolery, come across it by accident, when his family got hold of his co-defendant’s Plea Agreement totally exonerating him. Unfortunately, by then it was too late. He served the entirety of his 10-year sentence, fighting till the very end. Moreover, even a successful appeal, only results in nullifying the verdict against you. The government then wields the threat of re-bringing charges against you, pressuring you to plead out to a reduced sentence or time served. The saddest part of all is that there’s almost never any repercussions.
Agents, prosecutors and judges are also naturally impacted by years of presiding over assembly line justice. To be fair, they’re regularly faced with a lots of scumbags rotating through the system, making it difficult to separate the wheat from the chafe. As a result, they’ve become jaded and lost their sense of perspective. Agents are predisposed to using extreme tactics or legal shortcuts like faking an affidavit or shading the truth to build a case against some of those “scumbags” which, in their mind, now includes you. Prosecutors, in turn, are prone to overcharge and seek to freeze everything you own, making it impossible to pay bills and groceries, let alone hire an attorney.
Prosecutors are also not shy about bringing up any dirt they can during trial. If you’re accused of being a drug dealer, there’s a script for that, tying you to other convicted felons, gangs or the mafia (guilt by association), driving fear into the hearts of the jury. If it’s white collar crime, there’s a script for that, displaying pictures of homes, fancy cars and expensive jewelry (guilt by accumulation). You get the idea. Plus, they’ll also dig deep into your past. Anything’s fair game. Yet another difficult and stressful part of the game as they beat you into submission any way they can.
Judges too are not immune, after all, many of them were once federal prosecutors themselves. Federal agents and prosecutors are given wide berth with the rules of evidence and discovery. They almost never get sanctioned, generally given the benefit of the doubt. The government, for example, was warned several times not to use the term “Russian Mafia” in Stan P.’s case, only to regularly pepper it in, with no repercussions. Standard operating procedure.
Judges also tend to skew rulings on pre-trial motions and objections at trial in favor of the government while holding defense counsel to stricter standards. Finally, the system penalizes you for just defending yourself. Seriously! Sentences, on average, are considerably longer if you lose at trial than if you’d pled out. Sometimes double, triple or even worse. Chip H. was offered a deal for one-and-a-half years but chose trial and got 17, while Doctor Arman was offered one year and got 11. You never know. As a result, many innocent people plead guilty to cut their losses. When 5 years can quickly turn to 10, and 10 into 20, it’s easy to understand why.
As you’ll come to learn, everyone involved in this system run amok has become numb to the extremely long and unduly harsh sentences, dished out as if it was Halloween candy. There’s little to no concern given for family illnesses, how young children are impacted or any other aspect of human plight. As Ross M. was given his 12 year sentence, instead of the 30 recommended by the prosecutors, the judge stated he was being “lenient” because 57-year-old Ross was a good father who had done many past good deeds. He wanted to give him a chance to return to his two daughters who were then 12 and 14. When? On his deathbed? As for me, the government revoked my ex-wife’s visa upon my arrest, completely separating me from my children then ages 2, 8 and 15, throughout my entire 10-year sentence. I certainly understand that there’s a debt to be paid, but must families be utterly destroyed in the process? There just has to be a better way.
Please understand, I’m not advising you to give up on your innocence. For some people it truly makes sense. However, going to trial is a crap shoot and you’re literally in a casino where the government’s the house. While AUSA’s may not use each tactic I’ve described in every case, you can definitely expect to see at least some of it during your ordeal. Our judicial philosophy used to be that it was better to let 10 guilty people go free than convict one innocent person. That concept has since been turned on its head.
 A good friend of mine lost weeks of sleep after serving as a Federal juror and later finding out that the man he helped convict got 20 years. He told me that he may not have voted as he did if he knew.