Attorney Alan Ellis writes a monthly newsletter that includes information and tips on federal sentencing and post-conviction matters. I just read the following from his February edition:

 – Approximately 97% of all federal criminal defendants plead guilty.

 – Of those who proceed to trial, 75% are convicted.

 – Almost 99% will ultimately be sentenced.

 – Over 87% will be sentenced to prison.

Yikes!  Virtually every defendant in a federal criminal case will be sentenced? Is that really our experience in federal court?

He is probably close. I think that 97% of all federal defendants likely do plead guilty. Why? Because they are guilty. The feds play a very different game than all other criminal prosecutors. They have unlimited investigative resources (translation – money). They can "hire" folks to act as undercover informants, who record every word you speak in their house, apartment or car. Or worse – in your house, apartment or car!

And let’s not forget about technology.  For example – drones – they are increasingly used to monitor movements of suspects, and can provide critical evidence in any criminal case. There are wire taps, cell phone traces, and the occasional "tail" by agents intent of following and recording your every move.

So a person who is actually guilty of a federal crime – and there are thousands of federal crimes despite the notion that the federal courts were intended to be "limited" in scope – is probably going to be pretty well wrapped up before being indicted.  

What about the 3 persons out of 100 who go to trial? Will 3 of the 4 be convicted? I would have guessed it was more like 1 in 3, but either way this much is true – if charged by the feds, you are fighting an uphill battle.  Federal trials tend to be complex and costly. They are not battles, they are wars.  And winning in federal court is simply a lot less likely for any defendant because of the unlimited power of the United States to out prepare and outwork any criminal defense lawyer. 

Let me give you an example – in a federal case I took a few years ago – there were well over 10,000 documents to be reviewed, analyzed and controlled. By that I mean we had to have a way to know what was in which document, so we could find the information later for trial.  If each document had been 1 page (that was not the situation), and we had spent 1 minute reviewing the document, another minute summarizing it, another minute considering whether it would be relevant at trial and another minute adding it to a database so that we could find it as needed, we would have spent 40,000 minutes just to get that initial review done. That amounts to 666.666 hours of time, a Devilish task ("666") that would kill more than 16 weeks of full time work.  And that assumes that you do nothing else for those 16 weeks! Just spend all your workday for 16 weeks for the first pass over the 10,000 pages!

But each document was not a single page, and some took more time to read than a minute, and some could not be understood in a minute, nor could I figure out where that one puzzle piece would fit in a trial months away.

Translation (by my young client) – "the feds play for keeps, yo’." 

Which likely explains why there are so few federal criminal trials. 

The feds will bury you in papers, or hard drives or both.  Then they will pound you with motions, and crush whatever spirit remains when you consider the federal sentencing guidelines for your client.

But one time in three or four, you will win.  You will beat Goliath and it will be better than any feeling you have ever had in your life. And you will come back to that win for strength whenever you get that next Terabyte of federal discovery and wonder how you could have taken the case.

Sadly, the truth is that over 87% of all federal criminal defendants will go to prison.  Most of what we do is risk management.  We try to keep you out, but often all we can do is advise you how to lessen your time in federal control. 

And on that happy thought I return to the review of document number 9874 – in my next federal criminal war.

Soon we must consider anew Serial, and the episodes that remain. Have you finished the podcast? Do it!  My bride of nearly forty years gave it "two-thumbs up" as have most people who listened. It may cause you to wonder why anyone goes to trial, or it may remind you that some folks are not guilty.