Hello, everybody. This is John Katz. I'm a criminal defense and DUI defense lawyer here in Fairfax, Northern Virginia. This is Beat the Prosecution. I'm going to talk to you today about the benefit of pleading not guilty. So many potential criminal defendants are so anxious for the guarantee of what happens with a deal that they miss out on what happens when you say not guilty. One of the most important things to know is why plead guilty or no contest or altered, all similar pleas, which give up your right to a trial, if the outcome from a guilty plea or no contest plea or alfered plea are not likely to be anything better than going to trial and losing a trial. And if you go to trial, you might win. I'm going to give you three examples of trials I won where at least in one or two of the instances, there was no guarantee whatsoever that there was going to be an acquittal. We never know. One of my favorites is my client was accused by his ex-girlfriend of assaulting her. I said to the prosecutor, my client audiotaped what happened on the night of the incident. If you just listen to this, you'll see that my client didn't assault his girlfriend. She said, We're going to trial. She didn't explain to me whether she listened to the audio, she didn't explain to me why what her thinking pattern was. We just went to trial. In Virginia, people are allowed to audiotape the conversation they have with someone else without telling them they're doing it. That's not the case in all places. And I'm not going to tell you that I recommend you do that because what happens, for instance, if you're audio taping a conversation on the telephone, for instance, where the wires might be going across state lines and then implicating federal law. But in this instance, we had the audio tape. And as usual, in my opening statement, I didn't just tell the judge all this general stuff. I said, here's why my client's not guilty. And I said, one of the things we're going to do is we're going to play the audio tape of what happened. And you're going to see that what happened here is that my client's ex-girlfriend, the complainant here in this assault case, she didn't break up with my client, which is what she claimed to the court to get this case going. But my client broke up with her. And the complainant didn't hear what I had to say in this opening statement. The prosecutor could have could have told her what was on the audio, but I guess the prosecutor didn't bother. So when my client testified, well, actually, before that, because I'm trying to remember if we even, yeah, we had to get to that point. Maybe he testified. I'm trying to remember. But I let the complainant hang herself with her own words as follows. Sure enough, when the prosecutor was asking her questions, she said, the defendant, her ex-boyfriend, my client, came home. She told him that she was breaking up with him and that he assaulted her as a result. So during my questioning of her, I let her go on and on with it. I let her give some details about breaking up with him, and that she was the sole person who decided to break up with him. And that he never told her that he was breaking up with her, that he never said anything, that he had any problems about the relationship. And then I played back her words on the audio tape where the opposite showed up, where the audio tape with my client coming home showed that he said to this complainant, I'm breaking up with you. And she got so angry and she let loose on him. After closing argument, the judge said to me, You know, Mr. Katz, you know, of course, I'm paraphrasing, you know, Mr. Katz, if I hadn't heard from that audio tape, I wouldn't have believed a thing. I didn't expect I was gonna believe what you were saying in opening. But you were right. And the judge said, not guilty. I tried to settle the case to get it dismissed, it didn't work. Negotiations have to come from a position of strength. The position of strength includes being ready for trial. A criminal defense lawyer has to let his client or her client decide whether to go to trial or not, whether to settle or not. That is, if it can be settled. A criminal defense lawyer cannot have their pants down by having their clients say they're pleading not guilty, where the lawyer was expecting all at all times that the defendant would just take the best plea deal that they could get. And so we won that trial. Now I'm gonna give you another one that was even more unexpected. Well, no, the this win for the assault case that wasn't unexpected. Now, I'm gonna give you an unexpected win. So, in another instance, my client was charged with DWI, driving on the fence of alcohol. The prosecutor played the video of the cop stopping my client's car for a moving violation, showing the cop going up to my client's vehicle and talking to him. And one of my main arguments I made to the judge in seeking to win the case after the judge says said it was a lawful arrest, I said, judge, you shouldn't consider the breath test result because the cop on the witness stand said, because he was also the breath technician, I'm not sure that I inspected the defendant's mouth at least 20 minutes before blowing into the breath test machine. And what's important about that is that page 22, the first paragraph of the Department of Forensic Sciences Manual in Virginia for doing breath testing says inspect the mouth for foreign substances. And if you find foreign substances, wait an additional 20-minute observation period. So that means that the cops, the breath technician should be looking for tobacco, also known as dip, liquid, other than saliva, food, chewing gum, because any of those things can trap alcohol in the mouth when the breath testing is supposed to be about uh checking and measuring deep lung alcohol, not mouth alcohol. Now, when I first objected to this from coming into evidence, the judge just said overrule. Now, I don't know if it's because he already decided that he was going to find my client not guilty for another reason. I don't know. But what I do know is I was blown away after the prosecutor did closing argument and I did closing argument and the prosecutor did closing argument again. The judge said, I'm not so sure that the defendant didn't consume some of that alcohol that was in the unsealed container of alcohol on the passenger seat that the cop talked about between the time that his car was stopped and the police officer arrived. Except that I don't think there was anything in the police officer's dash cam that showed my client might have uh tippled from that bottle. And the judge found him not guilty. Amazing, wonderful. So I'm going out of the courtroom with my client. My client's going to the men's room, and I may have talked about this in a previous episode, and I hear these footsteps going boom, boom, boom. It was the trooper in the case. Okay, so the police officer was a trooper, and he said to me, I want to shake your hand. That was the best performance I've ever seen in a courtroom. I don't like what you said about me necessarily, but that was the best performance. Now, how would we have been able to know whether we were going to win the case or not if we had not just gone to trial? And I'm going to tell you something. That was a low risk case to say, not guilty in, because if my client had pled guilty to the charge, he would have gotten his sentence no better than if we had lost a trial. And here my client won. I'm going to tell you one more. So in the next one, this was in front of a judge now retired, whose reputation was having a lot of trouble saying the word not in front of guilty. This was a low-risk case, too, to go to trial. My client was charged with DWI, blood alcohol level of around, I think it was a 0.12, in a jurisdiction where the prosecutors are very reluctant to break DWI charge down to reckless driving for negotiating. So I got the breath technician to come to confirm that uh my client at one point removed a gold veneer, a veneer of uh of uh gold teeth, not real gold teeth, uh, from her mouth. And I got him to confirm I did the math of them. Okay, so my client took out the veneer uh no earlier than such and such a time. And then you resume the breath testing at thus and such a time. And that uh time period was less than 15 minutes, right? And he said, Yes, I got him. Because remember, there's that 20-minute observation period to assure that there are no foreign substances in the mouth. And what how amazing it was when the judge uh refused to consider the breath test results. She said, now, if the veneer had stayed in the mouth, I would have let the breath test results come in. But by removing the veneer, there could have been some dislodging of alcohol. If there was alcohol that was caught in the veneer, there could have been some dislodging of alcohol into the mouth. Not guilty. Not guilty. For those of you out there who need to choose a lawyer now or in the future, don't just consider your lawyers' uh ability to negotiate cases. Consider your lawyers' ability to take cases to trial and to do a good job there. The prosecutors know which judges take cases to trial. Police know which lawyers take cases to trial. Negotiations need to be backed up by the position of strength, by being able to go to trial. You need to know that your lawyer is not desperate to settle your case, that your lawyer is ready to go to trial for you if you want to go to trial, that your lawyer is fully prepared to go to trial, that your lawyer is capable of going to trial, and ask your lawyer the same thing you would ask your surgeon before cutting up uh you uh after you go under anesthesia. Is this your first trial? How many cases have you taken to trial? Where have you learned how to do trials? And don't just accept that, well, you know, as a prosecutor, I did 100 trials. Okay, you did 100 trials as a prosecutor. How many trials have you done as a criminal defense lawyer? How well has that uh uh, what do you call it? How well has that transplant taking taken for you of moving from prosecutor to criminal defense lawyer? How comfortable are you doing, are you doing criminal defense? How much experience do you have doing cross-examination? A person as a prosecutor may have done 100 trials, but how much cross-examination opportunities do they have? Where in the majority of situations, at least where I practice, the defendant stays off the witness stand and doesn't testify. And often the defense is not putting on any other witnesses, meaning for that particular trial, a zero opportunity for the prosecutor to cross-examine anybody. Food for thought there, then, on the importance of being ready for trial and the importance of your lawyer knowing how to do a trial from the defense side, not just from having been a former prosecutor. I'm John Katz. This is Beat the Prosecution because there is no other way. I'm a criminal defense lawyer and DUI defense lawyer here in Fairfax, Northern Virginia. Thank you.