Let's Make A Deal

December 5, 2010
/ Author: Rick

One of the more difficult things about being a criminal defense lawyer has been learning how to deal with the question of plea agreements.  I’m not the only one who has struggled with this question; not even the only lawyer who has.

This article is not intended as some deep discussion of plea bargains.  As I write this sentence, I don’t know yet exactly what this article will be about.  One of the reasons I think I started blogging years ago was as a natural extension of “journaling” — something I had taken up while trying to navigate the straits between my prolonged adolescence and adulthood.  I write to learn.

But the primary “inspiration” for this article was an irritating encounter with a family member of a client.

What had happened is that the prosecutor made an offer.  The client’s relative was upset because I indicated, prior to going into the courtroom to confirm for trial, that I was going to where they had the client (he was in custody) to talk to him about the offer.  The relative expressed anger that I was “going over there to try to get him to plead guilty.”

Now, I know attorneys who do that sort of thing.  Or I should say I know of them.  But anyone who knows me knows this much: I don’t try to get my clients to do anything.  I don’t try to get them to plead; I don’t try to get them not to plead.  I tell all my clients that when they hire me, that means I work for them; not the other way around.  “You want to know what happens to me at the end of the day if you take a plea?,” I ask.  “I go home and eat dinner.”  Then I ask, “Do you know what happens to me at the end of the day if you don’t take a plea?”  Not many of them have trouble guessing the answer: “I go home and eat dinner.”

In fact, if anything, I sometimes have more trouble going home to eat dinner when they take an offer.  I had a case like that last week where the client took an offer even though the case made my blood boil and I was itching to fight it.

So you can imagine the joy I felt over this relative’s comment.  Suffice it to say I almost needed defense counsel.

“Well, why talk to your clients about plea agreements at all, then?,” you might ask.  The answer to that is as simple — simpler, in fact — as the one about what happens to me at the end of the day.  The law requires that I communicate any offers made.  And in order for my client to be able to make an informed decision about whether or not to accept an offer, I have to explain the pros and cons.

Truth be told, I disagree with those who call plea agreements a necessary evil: I just think they’re evil.

For starters, plea agreements make the whole issue of negotiating a contract with a potential new client difficult. Criminal defense lawyers don’t usually charge an hourly rate for our services; most of our contracts are “flat rate.”  In theory, we guesstimate how much work we’re likely to have to put in on a particular case and set a price accordingly.  Thus, a “simple” felony (I mostly defend felony cases in state court) is guesstimated to take a certain amount of time and the client is quoted a certain amount of money.  Where the felony is not simple, or multiple felonies are involved, the fee will be higher.  On the other hand, sometimes the presence of multiple felony charges tells me that the case is going to potentially be easier to handle: the facts I learn up front plus the charges themselves telegraph that an offer the client will not refuse is likely to be made. Combine this with my own tendency to feel dirty for making a living off the misery of others and you can imagine how difficult the potential for settlement makes the “simple” act of quoting a fee.

I don’t know if it’s like this in all jurisdictions — I suspect that it is — but the other thing I hate about plea agreements is the “RTRC” problem for the charges, if any, which are going to be dismissed.

RTRC stands for “right to restitution and comment.”  In essence, it means that even though your plea agreement will mean that certain charges will be dismissed, you’re going to be treated as if you were actually guilty of those charges.

That’s right.  The charges, although legally they no longer “exist” after they are dismissed, are going to be counted against you.

Say your plea agreement contains a “lid” — a “lid” means that the agreement doesn’t include a specified agreement on the amount of time you will serve as part of your punishment, but rather has an upper limit, and you can try to talk the judge into something less — then the prosecution, or probation, is going to recommend your sentence be such-and-such many months, or years, based upon the things that you did not admit to doing.

Prosecutors enter into plea agreements for a variety of reasons, but the biggest “benefit” they get from doing so is this: sometimes, their case is a gamble.  Maybe they don’t have all the evidence they need.  Maybe they don’t know whether a jury will believe their witnesses, even though they believe them.  (After all, prosecutors tend to be more willing to believe bad things than good.)

Thanks to RTRC, the prosecution gets to have its cake and eat your client, too.  It doesn’t matter if your client took the offer because he believed he was guilty of what he pled to, but was not guilty of what he did not plead to.  It does not matter if your client pled because even though he was guilty of nothing, he didn’t want to risk prison.  RTRC means the prosecution gets to talk as if he’s guilty of everything — even the stuff for which, by the time of the sentencing hearing, there are no longer any existing charges.

With not one shred of proof.  Not so much as an ounce.

This brings me to another reason I do not like this system of plea agreements. Regardless of your guilt or innocence, charges against you virtually always carry some serious consequences. Part of this is due to the increasingly-draconian sentencing schemes, like the Three Strikes laws in California. Plea agreements play off this by raising the stakes for both guilty and innocent accused people.  It’s not at all unusual for  me to see cases where fighting the charges means risking 15 to 25 years in prison, but accepting the plea means going to prison for “six years at half,” meaning you’ll get out of prison in three years.

Given the guilty-unless-proven-innocent standard followed by most juries today (I don’t care what the rules say, this is how things really work), the willingness of cops to lie if they have to, the willingness of prosecutors to call cops to the stand to lie if the actual witnesses to the events don’t testify the way the prosecution wants, and the willingness of judges to turn a blind eye to prosecutorial misconduct — not to mention character and hearsay evidence being admitted routinely, even though it is forbidden by law — and it’s no wonder even an innocent person would take a deal.  Would you want to gamble on spending 25 years of your life in prison if someone offered you a guarantee of “only” doing three “just because” you’re innocent?

Seriously. Think about that last question. Think about how you feel about “defendants” sitting in court waiting to be judged. Think about how you feel when you hear someone is charged with a crime. Just for kicks, make it a sex crime or some other crime with an “ick” factor. Do you really, really, really want to chance losing close to half your life in today’s “tough on crime” environment when you could be out in some ridiculously short period (relatively speaking) of time?

(By the way, do you fly?  Because if you do and you tell me that you would still fight the charges rather than take a deal, I’m calling bullshit. People who fly let strangers fondle them and even their children on the idea that it possibly stops terrorists. It does not.  In fact, it harms us all — particularly the children — but we do it anyway.  So if you fly, you’ll never convince me you’d risk 25 years rather than accept the inconvenience of something much less severe.)

For all these reasons, I hate the plea bargaining system. But given the current state of things, I realize a plea is sometimes the best way to resolve a case.

After all, I’m not the one who has to go to prison. At the end of the day, I’m still going home to dinner.

By the way, as to the client whose relative was upset at me: I recommended, as I always do, that the client think about what he was comfortable doing — what he could live with — despite the evidence. On the day of trial, the case was dismissed due to the prosecutor’s inability to bring any witnesses to court.

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  1. Your comments about prosecutorial misconduct, lying cops and bad judges are very true.

    I was on the side of having to decide whether to take a plea. To make a long story short, after he made a rude comment, I called the district attorney a couple of names. As I was leaving the office I was tackled from behind by an investigator. I was then charged with assaulting the investigator, criminal trespass and resisting arrest. I was taken before a crooked and biased judge, who used to be the DA and still basically ran the DA’s office. Even though I had never been arrested before, owned a business, home, etc. my bond was set at $190,000. I spent 5 days in solitary confinement before making the decision to go into significant debt to make the bond.

    This all occurred in a county that is notorious for corruption in its criminal justice system. The first offer was 5 years deferred adjudication. I was innocent and wasn’t about to plead to a felony. I fired the first attorney I hired and the hired one of the very few attorneys in the county that the DA was afraid of. They then offered to drop it to a misdemeanor with 1 year deferred adjudication.

    It was a tough decision. I had just lost my 2 year old son just a couple of weeks prior to this incident and was emotionally exhausted. I didn’t think I could handle what would be a very public trial. I had been told by both attorneys that, because of the judge, there was no way I would get a fair trial. I also knew that the investigator and possibly others in the DAs office would not hesitate to lie to convict me. I also knew what you said about juries, particularly in this county. They walk into the courtroom already convinced of guilt and pretty much disregard anything they might hear to the contrary. So, I decided to take the deal even though I was innocent and I was the one who had been assaulted. I kind of have an internal conflict over it because I”ll always regret it and I wish I had fought, but, I know what I did was the smart thing. But, a lie is a hard thing to live with sometimes.

    That was about 3 years ago. I’m now in law school and was selected for the law review. I have to write a paper to actually get on the law review. I chose for my topic, prosecutorial immunity. In doing the research I have been surprised at how widespread and pervasive the problem of prosecutorial misconduct is.

    I appreciate your article. It is nice to know that there are those who understand how someone who is innocent can end up pleading to something. When you know the deck is stacked against you, and because of other circumstances you just don’t have the will to fight, what else can you do.

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