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| Courtesy dreamsline.com |
NEGOTIATING PLEA DEALS
One of the key components in representing a client who is charged with a crime is the PLEA NEGOTIATION.
In my experience, 98% of all cases are resolved by plea agreements. There are a variety of skills needed to maximize the offer for the client.
In every case, it is important to do the following things before any conversations begin with the prosecutor...
1) Analyze the strengths and weaknesses of your case.
This may sound obvious, but it is the crucial first step in deciding how hard to push a negotiation. You must take the case apart piece by piece to see where you may have solid defenses.
In a DWI case, here's a few brief examples:
-Was there probable cause to stop the car? [bad driving, equipment malfunction, etc]
-Was there reasonable suspicion to ask my client to perform field sobriety tests?
-Was there probable cause to search the vehicle?
-Were the field sobriety tests administered correctly?
-Were the FST's given under the NHTSA guidelines?
-What was my client's measured BAC level?
-Was chemical test calibrated? When?
-Was client given refusal warnings?
-What evidence of impairment is there? Could my client operate a vehicle?
-What evidence of operation is there? Can they prove my client actually operated a vehicle?
-Was there an accident involving property damage or personal injury?
etc, etc, etc
Each case has it's own set of unique facts and circumstances so it is important to break it down to see where your best arguments may be. Legal research is necessary to see what case law may strengthen your case (or hurts it).
2) What is most important to the client?
Once you are armed with the information about how good/bad your case is --you need to talk to the client to see what they're most concerned about.
-Do they want to avoid jail at all costs?
-Do they need to retain their driving privileges?
-Do they want to avoid a criminal record?
-Do they want to avoid probation but pay a stiffer fine?
Everybody values these things in a different way so it is important to know what your client thinks "is a good deal." I also try to explain possible vs. probable outcomes at the outset of the case. It is critical that both attorney and client are on the same page.
Next step: Discuss the case with the Prosecutor.
This is where negotiating is an art form. I prefer to conduct these negotiations face to face if it's possible.
In an adversarial justice system like ours --it is important to "know thy enemy." If you deal regularly with certain prosecutors then you have an idea of what they're likely or not likely to go along with before you walk into the room. This can be very helpful.
Often the first offer given by the prosecutor is less than ideal. These offers are usually mailed to the client before the arraignment happens or the client retains an attorney. I consider them to be a starting point ...but very rarely are they the final offer.
During the plea negotiation, it is my job to poke holes in the prosecutor's case and show them what arguments I would make given the facts. If there are significant defenses, I can push hard until the plea offer is something reasonable. Sometimes pushing a case involves going to a suppression hearing or pre-trial hearings until the prosecutor decides it would not be worth it to try the case to verdict. My own viewpoint is this: if you push a case as if you're going to trial -then you better be prepared to try the case.
On the flip side of the coin, if the facts are bad for my client (and there really aren't many defense options), I will try to focus on the "equities" of the case. In other words, I will focus on the good things about my client (instead of the facts of the case) when negotiating the plea.
For example, I recently had an Aggravated DWI case where my client blew a 0.22% BAC and was involved in two property damage accidents in two places on the same night. He also admitted to drinking 9 alcoholic beverages before getting behind the wheel. The facts were bad.
However, during the negotiation I focused on his lack of a criminal history and the fact that he was so honest about his drunk driving and owning up to his mistake when confronted by police. As a result, the prosecutor was mollified and he was allowed to plea to a reduced DWI charge (and they dismissed the rest of the charges against him) despite the fact that it would have been relatively easy to convict him at trial on all the original charges.
Ultimately, it is important to consider the case in two lights: the "big picture" and the "nitty gritty." Both can help give context to a crime and help negotiate a favorable outcome for the client.
SUMMARY THOUGHTS
The initial offer is always a starting point and should be treated as such. It is very rarely a good idea (barring extraordinary circumstances) to take a first plea offer from a prosecutor.
BY: Attorney Mike Cyr
P: 607-229-5184
E: mike.ithacadwi@gmail.com
Twitter: @ithacadwi
