What Vegas Reminded Me About Criminal "Justice"

by Aaron Delgado
07/12/19

The House always wins! As the pithy among us love to sagely comment, "They didn't build these places giving away money." And it is true, everything about a casino is designed to separate you from your money. In the middle of a game of baccarat (which I had set out to learn just because it seemed so inscrutable to me) watching players torture cards, twisting corners and violently bending edges, with a demonic mixture of glee, fear, hope and then finally a spasm of agony or ecstasy, I realized there was a lot in common between criminal defense work and watching gambling on the Las Vegas Strip.

The House Always Wins

If you look at all the criminal arrests in this county, an overwhelming majority of those cases will end in a plea. A very small number will be found not guilty or have their case dismissed through another mechanism.

They Are Playing With House Money

A dealer was quick to correct me – in a good-natured way – when I commented that she had won.  She said she did not have a bet out; she was just the person bringing the "news" and it was the house that won.  For many reasons, she does not want to make it appear she is the adversary or that she has any personal agency – she just turns over the cards, spins the wheel, or rakes the table.

To me, this is how I explain the role of the State to clients when we talk about plea bargaining.  The prosecutor has no bet on the table. She does not stand to personally lose or gain anything of import; at worst she will be frustrated with a loss for a bit.  Many clients, however, face permanent life-altering consequences if they lose.

The expression "playing with house money" generally means you are playing with “winnings," and numerous studies have shown people take more risks when they are playing with house money than when they are playing with money being taken from their "own pocket."  Of course, money is money and a dollar should have the same value regardless of its origin, but in the psyche it turns out this is not the case.

Play the Edge

You want to take the bet that has as many favorable factors as possible. Simply put, take every advantage possible. For example, at Delgado & Romanik, we often use the "Demand for Speedy Trial" as a tool to force the State into moving faster than they wish and taking advantage of their overloaded system.

Play the Cards You Are Dealt

Facts make cases. Lawyers can (and frequently do) try to minimize the appearance of bad facts or play up good facts, but there is no "Motion to Change Facts" or "Motion to Redact Stupid Comments Clients Made That Are Crushing Us."  In keeping with the Vegas theme, you play the hand you are dealt.

While facts cannot be changed, some facts can be bent, ignored, contradicted, et cetera. Knowing when and how to do this is the trial lawyer's art. A good lawyer begins explaining this view from the very beginning, even before a client engages their services. Because facts are what largely determines the case outcome, a lawyer's win:loss ratio is not very meaningful, as I explain below.

Gambler's Fallacy

I could write forever about why it is stupid to get hung up on winning or losing a particular case.  Don't get me wrong – I hate to lose. I do not let it go. I tell myself what I told you in "Play the Cards You Are Dealt.” But I do want to correct the notion that lawyers care about their winning or losing stats.

Good lawyers do not care if their opponent has won or lost a couple of trials. With some caveats, past performance is not a guarantee of future performance particularly because facts make the case, and the facts are new each time. Experience is pattern recognition, and experienced lawyers can see and respond to things more quickly. That is why someone with a lot of trials is an asset – they are comfortable with the process and can react more quickly.

There are a lot of common misunderstandings and misapplications of probability that are clearly evident in Vegas and also in the courtroom.  One such misconception is called the Gambler's fallacy. If you flip a coin, the odds of it coming up head or tails is always 1:2.  If you flip a coin and it’s heads, the odds of it being heads again on the next flip is 1:2. If you flip 12 heads in a row, the odds of the next flip being heads is still – and always will be – 1:2.  Now the odds of flipping 12 heads in a row is not 1:2 but rather 1:4096. The toss is not dependent on the preceding result. That is why is it is misleading to look up at the roulette board and see what numbers have come up in the past; the odds on the next number are independent of the prior numbers.  It’s the same thing in court; each case is a fresh event.

Make Your Own Luck

While the House always wins in Vegas, that certainly does not have to be the case in the Courtroom.  For the last fifteen years, my firm has established a winning record not just at trial, but at the negotiating table.  If you need an experienced criminal defense attorney, please call us 24/7 and let us see what we can do the change the odds!

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