Certain Case Outcomes Are Predictable

math-300x195For a moment now, I want you to conjure up your best Carl Sagan sense of wonder.  Remember his awe at the ‘unreasonable effectiveness of mathematics in science’?

Physics uses math in an attempt to model the world, and models predict things.   For example, the right mathematical models can reveal how billiard balls or motors or planets will behave.  It seems complicated because these equations can fill entire blackboards.  But it is easy.

Now, with even greater awe, imagine how useless mathematics is in biology.   Yes, you heard me.  Math is useless.  As Noson Yanofsky notes in his book The Outer Limits of Reason, math isn’t good at predicting “how a crowd [will] react to a certain event, or how a human [will] react to a relationship” because that “is far too complicated for our mathematics.  Mathematics does not predict all phenomena.  It only helps with predictable phenomena.  Or, as it is slightly humorously phrased, ‘God gave the easy problems to the physicists‘.”

I have a rule in my office: No Math.

I don’t do math.

So, it should come as no surprise that when someone wants me to compute their chances of success at trial or at a hearing or what-have-you, I won’t do it because attaching numbers to such unpredictable events is useless.  Basically, the outcome of a criminal case can often be “far too complicated for our mathematics”.

Sure, you must ask an attorney “How many times have you defended this type of case, and what kind of results are you seeing?”  I get that.  But, any answer from an attorney that says something to the effect of: “Your chances of winning this Motion to Suppress is 79.3%”.  They’re lying.  Or at the very least, their quantification of past results into a predictive model of future success needs to be scrapped.  Quantifying the situation gives a potential client a false sense of security.

I started my defense attorney career as an assistant public defender.  My first day in court, ever, was my first day of work.  It was a trial day.  I won my first trial.  But, I really knew very little about defending criminal cases.  My stats remained great, but my actual knowledge was minimal.  As I’ve gotten better at this (and 26 years in, I’m still learning…), I’ve also taken more losses.  My stats are worse as I get better at this.

No defense attorney has a crystal ball.  No one cannot predict every outcome of every criminal case.  If an attorney guarantees you an outcome–get it in writing.  Even physicists, with all their fancy equations, can only predict so much before resorting to uncertainty principles.  We can’t even trust the weatherman to tell us the weather next Thursday, can we?

That being said, we attorneys use our experience to make very accurate predictions about how a case will go, from start to finish.  Even without math, humans are fairly predictable, judges are fairly predictable, and we can prepare our clients accordingly.   No matter what you’re charged with, we attorneys must be able to tell you what range of punishments are available to the judge.  We must be able to answer the simple question “What Am I Facing?”   

Today, we’re going to review the real-life case of Jose Berrocales.  He pled to criminal charges stemming from an incident where he rear-ended a car, leaving the other person paralyzed.  There was alcohol involved, and Mr. Berrocales received five years in prison, followed by some probation.  Berrocales v. State, 2019 Fla.App.LEXIS 1250 (Fla. 4th DCA 2019).  At the plea, there wasn’t much talk of a license suspension, even though the charge carried a 3 year minimum mandatory license suspension.  The only talk of a driver’s license suspension involved the judge noting that “his license may be suspended ‘for additional periods’ if he was pleading to a drug offense.  The court said nothing about any other type of revocation.” id. at 2.  That being said, at some point during the plea, the prosecutor stood up and requested that Mr. Berrocales’ license be permanently suspended.

Now, I’ve been in criminal courtrooms since 1993.  I know a look of confusion when I see it.  Trust me when I say that it seems like Mr. Berrocales had one of those moments when the prosecutor requested that Mr. Berrocales driver’s license be permanently suspended.  This can happen when defense attorneys and clients get so caught up in jail and prison sentences that they forget about other important things–like a drivers license.  The court declined the state’s offer of a permanent revocation, but the judge did revoke his license for twenty years.

Later, Mr. Berrocales moved to withdraw his plea because his attorney never informed him of a drivers license suspension.  This motion was denied.  This appeal followed.

Fortunately, Florida law requires our judges to inform citizens of any sort of license consequences when pleading to a criminal case.  We find this in Rule 3.172(c)(10).  This rule requires judges to inform “a defendant about a mandatory license suspension to ensure that the plea is voluntarily entered.” id. at 3.  In Mr. Berrocales’ case, this wasn’t done.  He was never informed that the charge he was pleading to carried a mandatory license suspension.  As such, the appellate court reversed and has sent this case back to the trial court for an evidentiary hearing, where Mr. Berrocales must then prove that his license suspension played a crucial role in his decision to enter a plea.

We’ll have to wait and see how this plays out, but the take away from this case is that “a license revocation is such a serious consequence that a defendant should be informed of it.” id. quoting Bolware v. State, 995 So. 2d 268, 276 (Fla. 2008).