When Going to Trial Is A Loss, Regardless of the Verdict — A Painful Example

All too often defendants are led to believe by their criminal defense lawyers that getting an acquittal at trial is the ultimate victory, the best possible result for their case. Any of the best criminal lawyers in New York that I know, however, will agree with me that going to trial should be the last resort because even a trial win can result in horrible damage to the client’s life. It is the defense attorney’s job, therefore, to win the case before it gets to trial, before the damage is done. The competent defense lawyer needs to handle the case as if he’s going to trial, developing evidence which can prove his client’s innocence – or destroy the accuser’s credibility. If your defense attorney has the reputation of being a strong trial attorney who actually wins cases, when the presentation is made to the prosecutor with this developed evidence/impeachment material, the prosecutor often folds, thinking a low plea offer or dismissal is better than a humiliating public acquittal.  To illustrate my point I’ll take a look at a painfully horrible trial in the news right now: the rape trial of Dan Nelson, the Manhattan attorney accused of rape who has alternately claimed that a) the accuser was too fat to be raped; and b) his Erectile Dysfunction made it impossible for him to even have sex with the accuser, let alone rape her.

A Trial Which Exposes You To Public Humiliation Is A Trial To Be Avoided, If At All Possible

On its face, Dan Nelson’s case should be a fairly easy case to defend: Nelson, an intellectual copyright attorney, was accused of attempted rape of a woman he picked up in a bar. He took her back to his midtown law office – which was equipped with a Murphy bed in the conference room – and allegedly pinned her down, tried to rape her and when she resisted, choked her, ripped her dress and pulled the wig off her head.  There was no forensic evidence proving any sex occurred.  No confession.  Just a he said/she said situation with an accuser who willingly drank alcohol for hours with the defendant before the alleged attack, willingly went back to the defendant’s office and then began foreplay – only to have second thoughts.  An easier case to win for a defense lawyer could not exist. Now the case may still end in an acquittal, but let’s catalogue the damage done to the defendant’s life during this trial:

– he admitted during testimony drunk texting 10 women before going out that night in an effort to find a sex partner;
– he admitted that he drank three bottles of wine before meeting the accuser;
– he admitted he had anger issues with women – yet denied repeatedly calling another woman’s grandmother a “whore” earlier that night;
– pictures of his filthy office Murphy bed made every tabloid in the city;
– he claimed he was impotent and when arrested, had a pill in his pocket;
– his lawyer questioned whether the accuser was too fat to have sex in the Murphy bed – drawing a sustained objection and an “aghast” look from the judge at the question;
– he admitted that he grabbed the accuser and pushed her;
– his accuser testified through tears that he refused to wear a condom and yelled at her; and,
– his face was plastered across the front page of the New York Post.

Win or lose, Dan Nelson’s career and life are pretty much over.  Earning $650,000 per year at the time of his arrest, it will take a small miracle for him to ever convince another client to hire him again.  He has been publicly humiliated and the evidence of his humiliation is available for decades of Google users to laugh at.  So even with an acquittal, does Nelson really win this case?  Can any sane defense lawyer be proud of this result, regardless of the outcome?  Of course not.

An Even Worse Rape Case, Handled Correctly

I would compare this case with not an attempted rape charge as Dan Nelson has but of an actual violent rape a client of mine was charged with by the same Manhattan District Attorney’s Office a few years back. My client, an investment banker facing 25 years in prison had, according to the prosecutor, confessed twice to the crime and had been secretly taped by the accuser admitting the rape.  Additionally, there was physical evidence supporting the rape accusation.   Seemingly with nowhere to go but down, the defendant hired me.  After months of developing impeachment material against the accuser, a successful motion to suppress photographic evidence, the plea offers began coming in: first a felony sex charge with no jail time, then a non-sex felony offer with no jail time, and finally, the offer we took: non-sex misdemeanor charge.  End of story, end of case.  The client still works as an investment banker, his face and name remained out of the media and his criminal record bears no evidence of a sexual offense.

In sum, I would say: choose your lawyer carefully because even a trial win can be a horrible, life-altering loss.  Just ask Dan Nelson.

UPDATE: Soon after this entry was published, Nelson was acquitted of attempted rape but convicted of felony sexual abuse and criminal obstruction of breathing.  He faces up to 7 years in prison, will have to register as a sex offender and will be disbarred.  Nelson’s attorney after the verdict claimed he was “happy.”  Anyone think Nelson was happy with this result?

UPDATE: Nelson was sentenced to four years in prison for his conviction and is presently serving his time.