Tooby's California Post-Conviction Relief for Immigrants

(F)

Taking the Case to Trial.  If a satisfactory resolution cannot be arranged through negotiations, the client may decide to take the case to trial.  Certainly, a willingness to do so creates the strongest of bargaining positions, and many cases have been dismissed by the prosecution on the eve of trial when it comes time to put up or shut up, especially if the client is a pretty decent person and has already paid the debt owing to society arising from the offense.  It may, quite simply, not be worth it to the state to take the case to trial if the offense is old, the case has long been closed, and the punishment has already been exacted, especially if the client has strong equities.

            Moreover, the prosecution bears the burden of proof.  If anything goes wrong, and it cannot prove each element, an acquittal will avoid any immigration problems for the client.  There is a true story of a Washington, D.C. public defender who refused on principle to plea‑bargain at all, and won dismissals or acquittals in 13 of her first 15 cases.  Misdemeanors, especially, may be dismissed on the eve of trial.

            The pressure can be increased by withdrawing a time waiver, and forcing the case to trial by a certain date (30 days after arraignment for in‑custody misdemeanors, 45 days for out‑of‑custody misdemeanors, and 60 days for felonies) or else charges must be dismissed.  Misdemeanors once dismissed may not be refiled.

            In the Wounded Knee cases, of about 300 federal felonies, dismissals or acquittals were achieved in 95% of the cases.  The virtues of being willing to take a case to jury trial are sometimes severely underestimated.