Out of court

Monday, October 24, 2011

Pleading Guilty

As much as defense attorneys like to brag about their courtroom victories, there is less boasting about a good plea bargain. Yet out of my 50 or so new cases a year, the vast bulk of my cases--over 90%--end up in plea bargains. This percentage holds for nearly the entire community of defense lawyers.

One obvious reason is that very few defendants are falsely accused. That is, consider the most frequent case: driving under the influence (DUI). Rarely is a person charged with DUI who was not driving and drinking some alcohol. Whether the prosecutor can prove the person is 'under the influence' of alcohol is almost always the key question. This is a narrow space to maneuver in for the defense. 'Under the influence' is classically defined as: "whether the ability to drive is lessened in any appreciable degree." In the alternative, the prosecutor can prove that the breath test was .08 or higher, without ever having to prove the driver was actually 'under the influence.' In the latter case, there may be technical attacks on the accuracy or validity of the breath test. But if those are unsuccessful, then the higher the reading is over .08. the harder the case is to win. And few cases are filed where the breath test is under .08.
Similarly, if there is no breath test, the prosecutor has a professional witness in the person of 'Officer Friendly' whom the jurors tend to believe has no axe to grind. The officer would have given various 'field sobriety tests' and made numerous, detailed observations. If the driving is bad, then it is a tough case even without a breath test. The bottom line is that an offer of negligent driving in the first degree or reckless driving is hard to turn down.

One reason prosecutors offer plea bargains is that they have a staggering work load, which continues to rise with budget cuts. They have to save their resources for the most serious cases and the ones that are easiest to prove. For example, I had a felony assault case, stemming from a fight at a rock concert. My client was accused of starting it, although he and his brother-witness said the 'victim' started it. In any event, the fight ended when my client took a nasty bite out of the 'victim.' We argued with the prosecutor that this was self defense against a larger, equally drunk opponent. The prosecutor countered that it was an unreasonable use of force. In the end we got a misdemeanor assault plea bargain after we un-covered the 'victim's' prior record for felony assault. This 'proof ' problem got the result we wanted. The client kept his job and would not lose his civil rights, but he was held responsible for the out-of-pocket bills of the 'victim.'

A third reason plea bargains are popular is that the alternative of trial for many defendants is too risky. The greater the potential punishment for going to trial and losing, the greater the likelihood for a deal. As longs as there is a reduction in the charge, or a reasonable sentencing recommendation from the prosecutor, then a plea may be entered. In federal court, where the prosecution rarely has 'proof problems,' the risk of trial is very high. So often in federal drug or gun cases, there is also mandatory minimum time looming. A person charged with growing 100 or more marijuana plants is eligible for a five year minimum sentence after losing a trial. Typically the defense has to seek some bargain to get around the five year minimum which a judge almost never can reduce after a trial. Hence a deal is struck.

What if a defendant says he is innocent but still wants to plead guilty given the uncertainty of trial? I hate that. For starters, I usually tell my clients that I don't like pleading them guilty if they don't think they are guilty. Secondly, there is no such plea as 'nolo contendere' in Washington. The only pleas are "guilty, not guilty or not guilty by reason of insanity." "Nolo contendere,' meaning 'no contest,' exists in some jurisdictions. But it still means you get sentenced and have a record.

In Washington there is one other possible way to plead 'guilty.' It is known as an Alford plea. It is based on the case of North Carolina v. Alford where the defendant was facing the death penalty for murder. He did not believe he was guilty of murder but he wanted to take advantage of the prosecutor's promise not to request the death penalty. So he pled 'guilty,' but in his statement for the plea, he said he 'did not commit the murder' but felt that due to the strong evidence against him, a jury would likely find him guilty, so he was pleading guilty to avoid the death penalty. The Supreme Court upheld his reason and statement for 'pleading guilty.' But like the 'nolo contendere' plea, a person who enters an Alford plea still has the same record and gets sentenced by a judge.

In many cases, prosecutors will not accept an Alford plea for a variety of reasons. For one, it deprives the victim of a a measure of satisfaction. It also undercuts any treatment condition the prosecutor may demand. Many prosecutors also believe, incorrectly I would add, that an Alford plea is easier to withdraw from. From my point of view, an Alford plea can be harmful at sentencing. After all, when facing a sentencing judge, it may mitigate the punishment where the defendant accepts responsibility for the crime and shows some remorse. If he entered an Alford plea, it is much harder to ask for a lesser sentence on that ground. So, when entering an Alford plea, the defendant should not expect something less than what the prosecutor recommends.

Sometimes a good plea bargain has to be earned by the lawyer raising legal issues in motions or preparing for trial. This might reveal weaknesses in the prosecutor's case such that an offer is made before a final decision. On the other hand, many prosecutors will threaten dire consequences, such as no more bargaining, if a pre-trial motion is filed. Despite this warning, many defendants still believe that their lawyers must file motions and make the prosecutor work to get the best possible bargains. This can be true but it depends on the case and the prosecutor.

A common concern for defendants is that usually there is no legal guarantee that the judge will follow the plea bargain at sentencing. In most cases, this fear is overblown as judges show their support for plea bargains by nearly always following them. After all, it clears the docket of thousands of cases each year. Yet now and then a judge does not like a particular plea bargain. When this happens, it typically involves a murder or rape charge with a very low sentence or extreme reduction. A good lawyer should know their case has that problem and warn the defendant in that instance before the plea is entered.

In the end, plea bargains are made frequently as prosecutors, defendants, and the courts benefit from them. Be wary of any lawyer who says he only fights and goes to trial on all of his cases.

1 comment:

  1. In the halls of justice most of the justice is in the halls. This is very little understood by Hispanic defendants, The most frequent comment I have heard over the years is "all my attorney did was puhing me to plead guilty."