09 January 2013

Plea Bargains

As the United States Supreme Court has recently acknowledged, 97% of all criminal charges, give or take a percentage or two, are resolved through plea bargaining. Plea bargaining is the process of dickering with the county attorney over what the defendant should plead to and what the sentence should be realizing that the court does not have to follow a sentencing recommendation. Defense attorneys often initiate plea negotiations early in the process, acquiesce quickly to any reasonably sounding offer, convince their client it is the best deal he will get, and voila, done and out. Never take the first offer. You may not get a better offer, but you don't know that. Tell the prosecutor that you and your client will have to discuss it. If the case is a triable one, or if the client is in jail, don't waive speedy trial. In Iowa the State has 90 days to try a defendant from the date of the filing of the trial information. It is not unheard of that the closer the 90-day deadline approaches the better the offer becomes. Defense attorneys must realize that prosecutors are overworked. Just look at the amount of crime they must deal with--its overwhelming. On the day set for trial, it is possible that a prosecutor may have several trials scheduled. He or she can't try them all. Interestingly, female prosecutors are often more difficult to deal with than male prosecutors. This does not seem to hold true for judges. But back to plea bargaining, at some point during the process defense counsel should tell the prosecutor what his client will plead to and the penalty that the prosecutor should recommend to the court in return for the plea. All the while plan on trying the case. Have it set for trial and do the things necessary to try it. A defendant can always plead guilty, even in the middle of a trial. The court can not not take a guilty plea. No need to be in a hurry about any of this, justice is slow and time is always on the side of the defendant. Don't be afraid to try a case even if you know you will lose. There are several reasons for this. First, the prosecutors learn quickly that you aren't bluffing when you say you will go to trial. Secondly, they may not be giving you anything with the offer they have made. At trial, the defendant becomes a person in the eyes of the court, not just another file. The judge relating to the defendant as a person can often have salutary effects. It is not unheard of that a court give a defendant less of a sentence after trial than it would have with an agreed upon disposition. Third, trials are fun. So, before you take a deal, sit on it for awhile. Maybe you will get a better one.

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