I’d Rather Be Good Than Lucky.



I once represented a kid who did dumb kid stuff. I still represent kids who do dumb kid stuff, but this kid was different. He did some really dumb kid stuff. Felony dumb.  Like too many of these dumb-kid felony stories, this one involved a kid from a decent home in a decent neighborhood.  He’d clearly watched Scarface after drinking one too many Red Bulls and thought that the only way out of the “mean” suburbs was his balls and his word.

And his drugs, obviously.

He tried to set himself apart in the marketplace with a unique distribution strategy. He was the “Peapod” of narcotics.  He offered a personal delivery service. Of course he was once called upon to bring his product from his decent little suburb to a not-quite-as-decent locale- One where there were people a little more tuned in to how the trade best worked. You know, the types of people who knew how to take advantage of the Peapod of narcotics.

As these things happen, one day Mr. Peapod is called by some nefarious characters to deliver some of his product from his nice home to the type of place you’d normally go to purchase his product.  What could possibly go wrong? Everything, of course.

We don’t need to get into details, but let’s just say that the folks pretending to want to buy Mr. Peapod’s product did want Mr. Peapod’s product but didn’t want to pay for it. And they had guns.  Needless to say Mr. Peapod’s last business trip into that neighborhood resulted in Mr. Peapod getting arrested for being a businessman while the guys with the guns were arrested for being cunning thieves.

There was also some sort of “filing a false police report” charge in there because once Mr. Peapod was forced to make an uncompensated delivery, he acted as though somebody tried to steal his car… and didn’t quickly relent when the lawman showed up.

When the whole debacle finally got to court it had all the markings of a case the prosecutor wasn’t going to soon forget about: guns, drugs, and sending the cops on a wild-goose chase. Absent prostitutes the police reports were a veritable 2pac song.  Nevertheless, I aimed to get this kid through it with only a misdemeanor.


The magic that turns a felony into a misdemeanor is a “bad case”.  Not what a defense attorney would call a bad case, though (we pretend every case is a bad case). It’s got to be one that even the prosecutor thinks is a bad case.  Prosecutors don’t like to go to trial on stuff they don’t think they can win.

On the first few court dates I tried to convince the prosecutor she had a bad case.  As you may imagine, that was a tough sell.  They had Mr. Peapod’s cellphone, drugs, and car.

The next few months I pitched how hard it would be to prove the case even if it was a good case. You can’t prove it’s drugs- the lab reports won’t be here by trial. You won’t have a witness to the deal- your “witness” isn’t going to show up because he stuck a gun in my guy’s face. Besides, a jury isn’t going to believe a gun-wagger anyway.

None of that got us anywhere. As good as it sounds it was all puffery. And prosecutors who fall so easily for puffery don’t typically get assigned gun-in-your-face drug misunderstandings.

I let some more time pass and resorted to my least favorite negotiating tactic: begging.  Begging certainly isn’t a strength of mine but Rocky switched to orthodox when he was trying to beat Apollo because when the going gets tough you do whatever it takes.   While Rocky’s sheer determination may have helped him eek out a victory against Apollo in that second fight, my begging got me nowhere.

A full year after the case had started, I’d thrown every punch, run every trick, and played every card I could think of.  I’d killed time to let bigger, more important cases distract the prosecutor’s attention and I’d run out of options. Their offer wasn’t bad, but it wasn’t for a misdemeanor.

Running out of time and options I turned to the last resort- taking my pitch for a misdemeanor to the prosecutor’s supervisor.

I wrote a letter. It was quick, to the point, and had zero bullshit.  It was a letter I never let my client see. I couldn’t let my client see it. I had some things to say, and I didn’t need his ego getting in the way of his great offer.

“Look,” the letter essentially said, “we all know this kid sucks at dealing drugs, is a moron, and doesn’t sell a lot of this stuff.”

How did we know that?

“Who goes from the fancy suburbs to the poor suburbs to sell drugs in a street-level deal? Only a moron. Only somebody who doesn’t know what the hell he’s doing. Only somebody who isn’t a drug-dealer at heart.  Only somebody who is a misdemeanant in a felon’s body. He got that gun pointed at him because he didn’t know what he was doing. He’s lucky it took this long.”


I fired off the letter and didn’t think anything of it. When we next appeared in court, the prosecutor approached, laughed at me and told me that the letter was great and her supervisor agreed to reduce the charges to a misdemeanor.

I excitedly pulled my client and his family into the hallway. I told them that I’d written a letter, it worked, and we’d finally been approved for a misdemeanor.

“You don’t say?” Mr. Peapod’s dad excitedly exclaimed. “I guess we got lucky!”

Yeah. Lucky… if that’s what you call it.

4 thoughts on “I’d Rather Be Good Than Lucky.”

    • I’ll give you credit for teaching me a lot of it. I’d probably still be clueless if you hadn’t helped me through that first jury (even if dude did get convicted and sentenced to 180 days…)

  1. To pull a punch means to hold back when throwing it; so when you said you “pulled every punch” you are saying you restrained yourself as much as you could.

    Sorry to be that guy, but I figure “You know what I meant” doesn’t work too well in your profession 🙂


Leave a Comment

Call Now.