I've found that in the practical blogosphere, story ideas tend to get bounced around from one attorney to the next. I think it's partly because we all have clients, families, and personal matters to attend to, leaving little time to think up original topics. The other is that criminal defense lawyers, whether in New York, Texas, California, or Iowa, all share largely similar experiences. A topic started by Norm Pattis, and picked up by New York Criminal Defense Attorney Scott Greenfield struck a chord with me. It has to do with plea bargaining in criminal cases and the lack of understanding that the general public has about the process.
As Scott pointed out, if you haven't heard a defendant or someone from their family complain about a plea offer in one of your cases, you can count the days you've practiced law on your fingers. As a criminal defense attorney, you have to expect that you will bear the brunt of the frustration in that situation. I had a federal child porn case with an atrocious offer on the table. The choice was for the defendant to agree to approximately 30 YEARS, or go to trial. The family was incensed, the defendant was distraught, and I was the person that got to hear it.
Part of the reason they were so upset was their nephew was run over and the guy that did it got a ten year prison sentence. I felt bad for them, and believe me, I tried to make the offer change. It just wasn't going to happen. The case was too strong, and the defendant was too "experienced".
He ultimately took the deal, but until the day he was sentenced, I was the person that couldn't get him a better offer. As I said before, I accept I'm going to be the lightning-rod in that situation. The prosecutor is making an offer that is worse than someone got for killing a child. I totally get that. But it doesn't change the fact that the defendant was charged with his own serious crime. They don't want to hear about the completely voluntary confession, about the mountain of evidence, or about the multiple prior felony convictions that trigger harsh mandatory sentences. Yes, he got a sentence worse than a man who took someones life...but there are reasons it happened that way, other than who the attorney was on each case.
There are certain things about plea bargaining that everyone charged with a crime (or their family) should know:
1) There is no constitutional right to a plea offer
The government is not required to offer you a plea bargain. The state does it to try to reduce the amount of cases that go to trial or because they perceive a weakness in their case, or because it is the right thing to do...you know, justice. If the case is serious enough, and strong enough, no plea offer will be made.
2) Each person's situation is unique...The State is not required to offer people charged with the same crime the same or similar deals
Prosecutors base their offers on the individual facts of each case and each defendant. Defendants are rarely completely identical. While individual prosecutors generally try to apply their sense of "justice" evenly, they are human and sometimes differences arise. If you see differences between your case and what someone else got, get over it. Do not judge how "good" your offer is on anything other than your unique situation.
3) In general, plea agreements are only between the defendant, their attorney, and the prosecutor; judges are usually not bound to a particular outcome.
There are only a few circumstances when a judge will agree to be bound to a particular outcome in a case. In federal court, the judge does have to approve plea agreements, but this is usually not a commitment to a particular sentence, it is an approval of what charges are being plead to, the potential range of sentences, and the facts supporting them. In Iowa courts, the judges focus more on "accepting a guilty plea" and leave the particulars of the plea offer to the prosecutors discretion. If the plea offer "offends" the judge he will usually emphasize that he is not bound to a particular sentence, a signal that there may be problems. Judges are very reluctant to bind themselves to a particular sentence without having time to review all the facts of a particular case and defendant. This information is usually gathered by the probation office between plea and sentencing and put into a "pre-sentence report" that gives the judge a more complete picture of the defendant's unique circumstances in life. The pre-sentence report can sometimes influence a judge to impose a sentence other than what the parties have agreed on.
4) If you don't like the plea offer, you can go to trial
Although I talk about defendants being "forced" into plea agreements sometimes on this blog, the reality is that nobody HAS to plead guilty. If you don't think the offer is fair, take the case to trial. If you feel like your attorney is making you take a plea, let someone (like the judge) know.
