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More Thoughts on Plea Bargains

By on Oct 15, 2014 | 1 comment

A colleague recently posted an article from The Economist. Called The Kings of the Courtroom, it was about prosecutors and the power they have in the criminal justice system. While the article touched on a few different areas, a section on plea bargains stood out.

The article describes the power of a prosecutor to threaten new counts or new charges, if the defendant wants to go to trial rather than taking the prosecutor’s offer and pleading guilty. The article primarily dealt with federal charges, although it does come up in State court too.

To be sure, there are less mandatory minimum sentences in Washington State courts than Federal courts. And since Washington State court is usually where I practice, the threat of adding extra counts with additional mandatory jail time does not come up much. However, sometimes I do have cases where a prosecutor will threaten to add a charge or two, just to make it scarier to go to trial.

And it does make it more scary for a client, for a couple of reasons. One is that most jurors walk in and believe that if a person is charged with a crime, they’re probably guilty of something, and it’s usually that crime. If someone is charged with three crimes, rather than just one, it gives a juror even more ammunition for this presumption of guilt. After all, someone being in the wrong place at the wrong time could explain why they were charged with shoplifting, but does that explain why they’re also charged with trespassing and lying to a police officer and obstruction of justice? At some point, the weight of the charges makes it very difficult to prove innocence across the board. And if a juror comes in assuming a person is guilty, it then becomes the defense lawyer’s job to prove their innocence instead of the prosecutor’s job to prove someone guilty.

Secondly, juries are also comfortable “splitting the baby” and finding guilt on something rather than one side totally winning. This is not a hard and fast rule of course. Sometimes a defense lawyer can argue the existence of so many charges, especially the weak ones, means the prosecution is being vindictive or unfair or foolish. But when there are multiple counts, it gets exponentially harder to have your client acquitted on everything.

But as I said, and to their credit, it’s fairly uncommon for the prosecutors I deal with to threaten or to actually add charges if a case is set for trial. Actually what’s happened lately is offers in the opposite direction.

For a couple of recent cases, my clients were unable to afford bail and were in custody pending their case’s development. Both said they were innocent. For both cases I, as their defense attorney, certainly had some good arguments to make.

But when things started to get serious with setting with trial dates or motions, the prosecution made a new offer. Instead of asking my clients to risk additional jail time via going to trial, the offer was to plead guilty and being sentenced only to the time they’ve already done. Which means, if they decided to plead guilty, they would be released that afternoon.

On its face this is an offer I love to get because a lot of my clients want to get out of jail and get back to their lives. But that’s what makes it so insidious. Prosecutors know the pressure of longer stretches of jail and they use that pressure as a carrot or a stick to get the result they want.

And this brings me back to the article at the beginning. Because that article lays out the coercive nature of the plea bargain. And when prosecutors make any new offer, because I’m the one interacting with my client, I become a part of this coercive process.

It’s a genuine concern for me as a defense lawyer. Does a plea bargain serve my clients’ interests, especially if they maintain their innocence? I got into this business in part to advocate for my clients’ rights, not be another source of pressure.

Luckily, the ethical rules governing lawyers gives me an out. I am absolutely prohibited from making the decision for my client. I wouldn’t want to anyway. It’s not my life on the line. If someone is facing as serious decision as risking a criminal conviction and jail time, the decision on what to do has to come from the person it most affects, i.e. the client.

What I can do is give the pros and cons of each decision. I can tell them the likelihood of prevailing on the merits, the dates our potential trial would actually happen, immigration consequences of pleading guilty, and any other information a client requires to make an informed decision. And then, and this part is important, whatever they decide to do I support them 100% even if, were I in their shoes, I might decide differently.

I had a conversation with a prosecutor one time. He made what he thought was a very generous deal and suggested I make my client to accept it. I told him not only did I not have the ability to make my client do such a thing I wouldn’t want to. This prosecutor had been a prosecutor his entire professional life, which means he had never represented an individual client. If he had he would know it’s a very intimate process. I as a lawyer depend on my client’s cooperation and trust to effectuate their goals. If I start putting pressure on them to take a course of action I really am the prosecutor’s tool.

What did that particular client do? I don’t remember. I can promise whatever he decided it was his choice to make.

Ultimately every person in the system has a role to play. The linked article suggests that some prosecutors have lost their way to their mandate of justice, and based on the stories in that article, I would agree. But it makes it even more important that the rest of us take a hard look at our own work and make sure we’re fulfilling our personal and ethical obligations.

Ultimately my clients know I may propose a plea bargain but I will never force one down a throat. My clients know whatever decision they make I’m supportive. So far, my clients seem to appreciate it.

If you or someone you know is facing a tough situation involving a prosecutor and need to talk to a criminal defense attorney, feel free to give me a call.

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  • Perez & Perez Law

    Great take on the dilemma between getting your client out of jail and maintaining their innocence. As far as being an attorney goes, this is one of the tougher things to do. Great read and better insight.

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