Older cases are better for the defense, ceteris paribus

Being investigated or arrested for a criminal offense is stressful and produces a great deal of anxiety. Every defendant or suspect wants their case finished post haste, but they also have a competing goal, which is to get the best result in their case (who doesn’t want a dismissal right?). It can take weeks or months or even years (looking at you Van Zandt County) for a criminal case to be filed (from the date of offense).

Often there will be some inexplicable delay in the case. For example, a detective could sit on a case and not forward it to the DA’s office, the DA’s office could lose the file in intake, or the forensics may take forever to get back from DPS. Those things are all great for the defense. Why? A few reasons.

Memories fade

Storytime- First case I lost as a prosecutor was a speeding ticket in Bowie County. I was surprised to actually have one set for trial. This lawyer from pre-paid legal showed up (drove all the way from Dallas), and I felt pretty confident in the outcome. The charge?  Speeding, 96 in a 65. Date of offense, about a year before the trial date. Now this was back in the day before all cop cars have video, so I had to rely on the officer’s memory to make the case.

I call the officer on direct, ask him if he remembers this date of offense or writing this citation. His answer was (paraphrasing) “Nope, I’ve written a few hundred tickets since then.”

Undeterred I asked him if this ticket was in his handwriting (yes) and if he would ever write such a citation without being sure an offense was committed (nope). Ok, so no was his memory refreshed? Still nope. Not Guilty.

Witnesses issues

So you’ve got an assault case and your client tells that the complaining witness (“Victim” in prosecutor speak) is a psycho crackhead (you’d be surprised how many people use that term). So you wait a while and reset the case a few times and…. guess what, the CW gets arrested for possession. So now the DA’s office is trying to prosecutor your client and the “victim” at the same time. That puts them in a weird position.

But it’s not just CW’s who get arrested; cops get arrested, or have IA come down on them. Look at the recent DPS lab scandal in Dallas, in which their blood test “expert” plead the fifth to avoid incriminating himself. Those things are awesome for the defense. You can’t count on them happening, but when they do, you are glad you waited.

Priorities Change

Older cases are harder to try, and if you are on bail you won’t be a trial priority over people who are stuck in jail. So the prosecutor will have more complex and more urgent trial to focus on, and all of a sudden your case looks like one that should plead. The amount of work that it takes to get a case ready for trial is usually equal to all the work that’s done up until that point. It’s another 100% time investment going ever not just your case and ideas, but trying to predict everything your opponent could do in trial. The reality of gearing up for trial is why a lot of cases plead at trial announcement or pre-trial. Because the opportunity cost becomes real for the prosecutor.

Case Law Changes

This may not mean anything since Trump is likely to put a right-wing authoritarian on SCOTUS (conservative appellate judges are usually pro-conviction judicial activists). But now and then we get a gift from the SCOTUS gods. Like the recent Rodriguez case. That case says the cops just can’t hold you for no reason on the side of the road to call out a drug dog. Guess what? I had some felony drug cases that received a great benefit from that case.

That’s fine and all but what if you need a case finished ASAP

That happens, sometimes you need your case done now. Maybe you are going overseas for a job, or you are on parole, or you live out of state and are sick of flying back and forth. That’s something to let your lawyer know up front. He will probably tell you to be patient and let this thing play out for the reasons we discussed above. But sometimes demanding a speedy trial can be litigated in a way that works for the defense. That’s a topic for another blog post, but it changes the dynamic when you need to move the case ASAP and is willing to take the risk of going to trial.


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