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.

Trial by Jury

Court service days are those days in court where defendants appear for matters that take little time such as arraignments, pretrial conferences, uncontested motions, etc. These terms are not self-explanatory, but attorneys practicing criminal law will understand the process. The courtrooms are full of defendants and attorneys waiting to plead guilty, plead not guilty, negotiate a reasonable disposition of the case, or to take care of other matters that may present themselves none of which take more than a few minutes. What becomes obvious with only a few minutes observation is that the vast majority of defendants plead guilty to something--either the original charge or some lesser included offense. This observation is reinforced when discussing a new charge with a new client and asking about his previous criminal history and if ever he has gone to trial on anything. The answer, with very few exceptions, is the person has never gone to trial but always plead guilty to the original charge or some lesser included offense. Most often the reason is to be released from jail since bond could not be made. Often times it is simply to get it over with. Criminal charges are disruptive, anxiety producing, and expensive even for those with unlimited leisure. The criminal justice system is a factory production. It produces compliance and revenue; the perfect combination. What is apparent, however, is that this system operates only because of the cooperation of defense attorneys and defendants. We as a group are complicit in this organized assault on our clients. If, on one day, on one court service day, each and every defendant said "I'm not pleading, I want a trial", the criminal justice system would implode. No court could withstand the onslaught of trials; they simply could not be scheduled. Prosecutors would be incapable of rational thought wandering about the halls asking themselves what to do. Court attendants and clerks would be staring about in wonderment. Law enforcement would be spending their vacations and off duty times waiting endless hours at the courthouse to testify. It is amazing just to think about. The chances that this vision would ever become reality borders on zero. There is no economic impetus for a trial. Defense attorneys lose money going to trial. Defendants incur costs they cannot afford. Family, friends, and associates called to testify grumble over the imposition. It is all very disadvantageous. From observing the run-of-the-mill defense attorneys there is little interest in trying any case unless the defendant actually insists on a trial. In a county such as Jasper, where you may have one jury trial a quarter but hundreds of criminal charges, something is askew.

Jail

Have a trial scheduled for Monday in Newton. My client is in jail and I was looking forward to trying it. The charges are assault on a police officer and interference with a police officer causing injury. Two of the arresting officers had a scratch. Our Newton police will file whatever they can. This is a long way from the police officers who were working in Newton when I first came to town. I actually think they thought an occasional scratch was part of the job. They certainly were capable of taking care of themselves. At any rate, my client engaged in fisticuffs at the jail with another inmate and received the worst of it. He apparently suffered injuries other than the black eye that was obvious. He felt, as I did, that going into a trial such as we had scheduled all banged up from a fight was not the best idea. After consultation, he decided he would take the deal offered by the county attorney and plead to reduced charges.

I then left the jail and informed the clerk of court they would not have to call a jury and stopped by the county attorney's office and informed the assistant county attorney that the defendant would take the plea offer which the assistant county attorney thought was an acceptable resolution to the case. I would have liked to try the case. I am not sure that a jury would have thought the defendant intentionally assaulting a police officer by kicking him while his head is being "directed" as the officers put, to the hood of the police car. There are times when, as a defense attorney, it seems appropriate to show the citizens of a community just how their finest act.