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.

Prove It!

We forget that the issue for the prosecution in a criminal case is whether the charge can be proven. Contrary to those who wish to improve the jury system, prosecutors without enough to do, and defense attorneys who don't properly represent their clients, whether the defendant did it, commit the act charged, is not the issue. The issue is whether the government can prove it. Innumerable times I have witnessed defendants plead guilty to some charge, such as domestic assault, where no sensible jury would convict him. Usually this is done after counsel has advised client that it is the best deal he is going to get. Simply because your client committed he crime he is charged with, is not a reason to plead him guilty. You, as his defense counsel, don't care whether he did it or not-the issue is whether the state can prove it. When defense counsel begins to judge his client, to categorize him in the pantheon of evil doers, he is no longer acting as defense counsel. It is not the job of the attorney to see to it that his client gets substance abuse counseling or anger management classes. These concerns are those of social workers who are paid to make us all better human beings. It is not the concern of the defense attorney to encourage the moral improvement of those he or she represents. I have often been harangued by prosecutors stating unequivocally that my client was guilty and needed some sort of therapy. One can only respond to these harangues by the retort of "So what?" "He may or may not need counseling for drug addiction or 24 classes to show him the error of his ways when he pops his girlfriend, but first you have to prove he did it." This response normally brings out the worst in prosecutors who now think you, as defense attorney, are also a moral reprobate and are acting irresponsibly in not acquiescing in the improvement of the defendant as a human being. I often speak disparagingly of prosecutors, but some actually do act like attorneys, not social workers. They understand that if they can not prove a charge, it should be dismissed. There are no stern lectures on the failings of the defendant or that he needs to find some way to earn money without selling illegal substances. They are fully aware that they will get him next time--its just a matter of time. They tell us every person charged with a crime deserves a lawyer so let us give them one. Tell the prosecutor the defendant isn't taking a deal and is planning on trial. You will be surprised how many charges just go away.

Confessions

Little has changed over the centuries as to proof of a crime committed. The percentage of criminal defendants convicted of the crime charged is most often the result of a confession. I have often wondered why people who have committed crimes, and also those who have not, readily confess their involvement. It shows a distinct lack of character. Some would argue that criminals have poor character and we should expect nothing more than immediate capitulation. Embezzlement is an interesting example. Those who embezzle from their employer will be caught eventually. It is a certainty. Those who might escape notice are those who embezzle a little, and then quit; but this happens only rarely. Most embezzlement begins small, little amounts here and there and then over time increases until it is impossible to cover the theft. Almost without exception the embezzler admits to the crime upon confrontation. Those who use illegal drugs are another example. Time and time again, a person's vehicle will be stopped by law enforcement and upon the question of whether they have anything illegal in their vehicle, the person in the vehicle immediately blurts out that he has drugs either on his person or in the car. Or with a knock on the door of a residence, the same question is asked with the same response. It would almost seem that the person using or having possession of the illegal substances invites criminal charges to be filed. Without this immediate acquiescence many fewer convictions would result. Innumerable times defense counsel is confronted with a defendant who has confessed his sins. There is little help for him. Without the confession, the defendant would normally have some sort of defense to the charge, i.e. "I didn't know it was there.", "It was the other guy's dope.". But no, the response might as well be, "Take me to jail, I did it." I am sure there has been much written on this subject. Possibly forensic psychologists have the answer. More than likely it is a combination of fear, atonement, and stupidity. In the land of atonement, the proliferation of 12 step movements, confessing one's sins and asking forgiveness for past transgressions has become the norm. "Confession is good for the soul" has morphed from a religious practice to a recovery complex. Fear is easy to understand, but misplaced. One has more to fear by confessing than by not confessing and maybe this is where stupidity comes in. Of the three factors recognizable in confessions, stupidity is not correctable. One can not be trained, educated, or induced in any manner, not to be stupid. Without stupidity we criminal defense attorneys might starve so I guess we shouldn't complain of it.