The difference between trial attorneys and plea bargain attorneys

Transcription

1 The difference between trial attorneys and plea bargain attorneys Free Publication by National Association For Legal Gun Defense

2 The difference between trial attorneys and plea bargain attorneys Why do lawyers of other self-defense coverage company s try to persuade their clients to accept plea bargains even if they are innocent? Quick answer: Because for your defense attorney and the insuring company a plea is all about saving the company money. SDF attorneys fight for our members while others plea to save money. Self Defense Fund attorneys are trial lawyers in all fifty states and will aggressively defend you to the full extent of the law. Compare the SDF plan to other Company s Download What are plea bargains? Plea bargains are an agreement in a criminal case between the prosecutor and the defendant that usually involves the defendant pleading guilty in order to receive a lesser offense or sentence. Plea bargains are often referred to as really just establishing a "mutual acknowledgment" of the case's strengths and weaknesses, and don't necessarily reflect a traditional sense of "justice". In theory, courts are happy to have the respective parties work out a solution by themselves, but it begs the question of who is best served by allowing plea bargains. Assuming you are innocent, the system has made all of us afraid to pursue our innocence. Prosecuting attorneys, who are generally District Attorneys, have a million ways to wear you down - threats, countless hearings, court dates, lack of notification or communication, etc. Why, Because DA s are elected and they have to defend their convection record every four years during their election campaign. They do not campaign on cases they have lost. Plus they have endless county money and staff attorneys who get paid no matter what. Defense attorneys, who should have your best interest at heart, will talk to you about your loved ones missing you, telling you the plea bargain they are presenting is the best you can get, and telling you they have never seen such a good deal before. Why, because the insuring company loses money if they take you to trial. It is their best interest to talk you into a plea. Unfortunately, for defense attorneys who have been appointed to represent a poor person, it means that the attorney knows he will be paid very little, whether he fights hard in trial or his client pleads guilty without a trial. In order to provide for his or her family, he may want to keep his representation of the poor defendant to a minimum to get back to paying clients in his practice. That is unethical, but you can understand the economic pressure to do it. It happens all the time. This is all designed to make you surrender your constitutional rights to presumed innocence and avoid a trial in the name of judicial efficiency. But know this - trials are their own type of nightmare. We would be remiss if we didn't tell you that. Select your nightmare carefully!

3 Even if innocent there are a variety of reasons why a criminal defendant may consider a plea bargain in a criminal case. Defendants have an opportunity to negotiate a plea bargain, in part because criminal courts are more crowded, which means prosecutors and judges feel increased pressure to move cases quickly through the system. Trials can take days, weeks, or sometimes months, while guilty pleas can often be arranged in minutes. Stacking charges forces the innocent to plead guilty The SDF preaches to our members to say only the following when questioned by the police. I have been advised by my attorney to keep silent. We cannot emphasize this enough. If the police are questioning you the odds start out as 2 to 1 against you. First the police are trained to collect all evidence and statements to gain a conviction. Second prosecutors stack charges to gain a conviction. The one is you. What you say can and will be used AGAINST you. Not FOR you. Most people talk themselves into an arrest. The SDF has written newsletter articles several times about how prosecutors will stack charges against a defendant, thus building a very long potential prison sentence if convicted, and then approach the defendant with a plea deal that would result in a guaranteed, substantially reduced charge and sentence if the defendant agrees to plead guilty to the reduced offense. If the defendant takes the deal, the prosecutor doesn t have to take the case to trial, and possibly not even to a grand jury, both of which are a lot of work and require a lot of time on the part of the prosecutor. This has become absolutely standard practice. The prosecutor will stack charges to build such a scary potential sentence, that even actually innocent people will be intimidated into pleading guilty, rather than face what s called the trial penalty that very scary long sentence if they should somehow be convicted at trial. Not surprisingly, the nature of the deal offered by the prosecutor will be driven by how strong a case he/she thinks they would have in court the weaker the case, the better the deal. Let me also add that the prosecutor has no problem assembling a very long list of charges against you. The penal code has become so vast, and there are so many laws, that there s a law against practically everything. I suggest that most people are not even aware they re breaking a law every day; because they don t know the law exists. I think they could charge you with something for walking down the sidewalk whistling a tune while wearing a blue shirt. The SDF has already defended a member for walking on the wrong side of the street. To really understand what happens here, I thought it would be enlightening to provide an example case. Here is the scenario: You are out mowing your lawn one day, and find a nest of six baby rabbits at the base of the foundation of your house. Now, the rabbits have been eating and destroying your landscape plants for years, so your first reaction is, Get the hose and drown them. But then you think, No, I ll do the humane thing; put them in a box, and release them out in the country. So you scoop the rabbits into a cardboard box, put it in your car, and drive out to the country. Now, here s what happens. You stop by the side of a country road, release the rabbits out into the tall grass, get back in your car, and drive away. A sheriff s deputy on patrol noticed you dumping something by the side of the road, and he pulls you over. The officer comes up to your car, and asks, Sir, may I ask what you dumped by the side of the road back there? You answer, It was just some rabbits from my yard. The officer says, I see - How many? You say, Six.

4 And at this point, the officer says, Sir, get out of the car. You re under arrest for interfering with wildlife. Now that you ve been arrested and initially charged, the prosecutor is going to come to you (and your attorney) with a plea deal. This can be even before an indictment, because if he/she can get you to plead guilty now, then he/she doesn t have to spend time and effort taking the case to a grand jury, much less to trial. In this case (your case) the prosecutor comes to you (your attorney) and says, This is what I m charging you with. The prosecutor then lists the charges and the prison sentences that accompany each charged (Stacking): Interfering with wild life. One count. Six months each count. Removing wildlife from its natural habitat. Six counts. One year each count. Placing wildlife in a non-native habitat. Six counts. One year each count. Use of a motor vehicle for the purpose of interfering with wildlife. One count. One year each count. Illegal dumping. One count. Three months each count. Illegally parking on a county road. One count. Three months each count. [Note: If someone else had helped you do this, there could also be conspiracy charges added.] Then the prosecutor says: If you will plead guilty to one count of interfering with wildlife, we ll see that you get 30 days in jail, with one year probation upon release, and a $500 fine. When you do the math, you quickly realize you re facing a possible 14 years in prison versus 30 days and probation. You re thinking, This can t be happening. I don t think I did anything wrong. But what would you do? Go to trial and face 14 years in prison? This is the dilemma that many defendants face on a regular basis, and is the primary reason why 95% of criminal cases never go to trial. [And for federal cases, it s 98%.] Granted, this example was completely contrived, and it s not possible to concoct an example that s exactly analogous to every individual collection of circumstances, but that s essentially how it works. Why do lawyers like to work things out and talk their client into a plea bargains? a) Because in an attorneys mind a lawsuit in court is a win-lose when a plea bar-gain settlement is a win-win. b) Because if your attorney is not prepared or competent in self defense law then he has no idea who will be the winner. It's a crapshoot, especially with a jury. Re-member there are many different areas of law and just any attorney is not all seeing and all knowing. c) Because it is also faster and cheaper than going to court and he can invoice the client and will not have to spend much time and resources to settle. d) Because it is cheaper and the attorney makes a larger profit. It is also quicker, which adds to the profit gain. They attorney knows that he will not lose money in a plea-bargain agreement and he knows exactly what will happen so as to reduce costs and avoid risk, lawyers avoid litigation. Translation: Sell out their client for a profit by talking their client into a plea bargain. [They receive more money for less work. They will have a probable loss in a jury trial.]

5 Insured or not what are the incentives for the defendant to accept a plea bargain. It has been said, "The closer you get to trial, the better the plea deal becomes." Should you take the plea bargain guilty or innocent? Only you can answer that. Over 90% of all defendants will crack under the pressure and we understand why. The stress, pressure and anxiety can be overwhelming. Even with the best of the best attorneys on your side, and plenty of money to pay them, the question is do you have the stamina to ride it out? Even if you have the money to fight very few people are not selfemployed and do not have the time to show up in court multiple times. Employers will not let you have the time off so your job is at risk. For most defendants, the principal benefit of plea bargaining is receiving a lighter sentence for a less-severe charge instead of taking the case to trial and losing. Also, the outcome of any given trial is usually unpredictable -- but a plea bargain provides both prosecution and defense with some control over the result. Insured or not there are other benefits to accept a plea as well. You will save money if you are not insured and represented by private counsel. You can save a bundle on attorneys' fees by accepting a plea bargain. It almost always takes more time and effort to bring a case to trial than to negotiate and handle a plea bargain. You may get out of jail sooner. Defendants who are held in custody -- who either do not have the right to bail or cannot afford bail, or who do not qualify for release on their own recognizance -- may get out of jail immediately following the judge's acceptance of a plea. Depending on the offense, the defendant may get out altogether, on probation, with or without some community service obligations. Or, the defendant may have to serve more time but will still get out much sooner than if he or she insisted on going to trial. You will resolve the matter quickly. A plea bargain provides resolution to the stress of being charged with a crime. Going to trial usually requires a much longer wait -- and causes much more stress -- than taking a plea bargain. You will have fewer or less-serious offenses on one's record. Pleading guilty or no contest in exchange for a reduction in the number of charges or the seriousness of the offense looks a lot better on a defendant's record than the convictions that might result following trial. This can be particularly important if the defendant is ever convicted in the future. For example, a second conviction may carry mandatory jail time, whereas if the first offense had been bargained down there may be no jail time for the "second. Even for people who are never rearrested, getting a charge reduced from a felony to a misdemeanor has other benefits: Some professional licenses must be forfeited upon conviction of a felony. Future employers may not want to hire someone previously convicted of a felony. Felony convictions may be used in certain court proceedings (even civil cases) to discredit people who testify as witnesses. Felons can't own or possess firearms. In many jurisdictions, felons can't vote. In addition, it is often advantageous to reduce a felony that constitutes a strike under a "three strikes" law to one that doesn't.

6 You will have a less socially stigmatizing offense on one's record. Prosecutors may reduce charges that are perceived as socially offensive to less-offensive charges in exchange for a guilty plea. For example, a prosecutor may reduce a felony to a misdemeanor case. This can have a major impact on the defendant's relationship with friends and family. Perhaps even more critical, sometimes defendants convicted of stigmatizing offenses may be at a greater risk of being harmed (or killed) in prison than if they are convicted of an offense that doesn't carry the same stigma. You will avoid hassles. Some people plead guilty -- especially to routine, minor first offenses -- without hiring a lawyer. If they waited to go to trial, they would have to find a good lawyer and spend both time and money preparing for trial. You will avoid publicity. Famous people, ordinary people who depend on their reputation in the community to earn a living, and people who don't want to bring further embarrassment to their families all may choose to plead guilty or no contest to keep their names out of the public eye. While news of the plea itself may be public, the news is short-lived compared to news of a trial. And rarely is a defendant's background explored in the course of a plea bargain to the extent it may be done at trial. You will keep others out of the case. Some defendants plead guilty to take the blame (sometimes called the "rap") for someone else, or to end the case quickly so that others who may be jointly responsible are not investigated. Incentives for Judges and Prosecutors to Negotiate Plea Bargains. Prosecutors' incentive to engage in plea bargaining. For prosecutors, a lightened caseload is equally attractive. But more importantly, plea bargaining assures a conviction, even if it is for a lesser charge or crime. No matter how strong the evidence may be, no case is a foregone conclusion. Prosecutors often wage long and expensive trials but lose, as happened in the infamous George Zimmer-man murder trial. Moreover, prosecutors may use plea bargaining to further their case against a co-defendant. They may accept a plea bargain arrangement from one defendant in return for damaging testimony against another. This way, they are assured of at least one conviction (albeit on a lesser charge) plus enhanced chances of winning a conviction against the second defendant. Prosecutors are also concerned about clogged calendars. Crowded calendars mean that the prosecutor's staff is overworked. Because plea bargains are much quicker and require less work than trials, they are also easier on the prosecutor's budget. Remember prosecutors (DA s) are elected and they have to defend their convection record every four years during their election campaign. They do not campaign on cases they have lost. Incentive for a judge. The primary incentive for accepting a plea bargain is to move along a crowded calendar. Most judges simply don't have time to try every case that comes through the door. Additionally, because jails are overcrowded, judges may face the prospect of having to release convicted people before they complete their sentences. Judges often reason that using plea bargains to "process out" offenders who are not likely to do much jail time leads to fewer problems with overcrowding.

7 Legal tricks used by prosecutors. Prosecutors always include probation in their offer. So what does this mean to you? The short answer is if they can t get you now they will get you later and it will be much more severe of a punishment. Probation is not forgiving and very difficult to comply with every condition. If you were recently convicted of a crime, you may have been given probation as part of your sentence. As an alternative to jail, this probably seems pretty lenient after all, you get to serve your sentence at home and go about your life as usual, right? While this may be true to an extent, if you are charged with a probation violation, you could face far tougher penalties. When you were first sentenced, the judge most likely assigned a probation officer to your case. This person is responsible for keeping tabs on you and making sure you abide by the terms of your probation, and part of those terms may include meeting with him or her on a regular basis. As a result, missing a scheduled meeting with your probation officer is usually a violation - - in fact, it s one of the most common types. Your probation sentence probably included other ground rules, many of which may be based on your original offense. Other common requirements for probation include performing community service, attending an education program, and paying monthly probation fees. Along with any of the specific terms you are given, your probation sentence is likely to include a number of basic limitations. You may not be allowed to move, change jobs, or even leave the state without permission from your probation officer. And, since you are expected to abide by the laws in your area, you could be charged with violating your probation if you are facing new criminal charges or are caught associating with criminals. Legal tricks used by police to get you to confess even if innocent When dealing with the police keep your hands in view and don't make sudden movements. Avoid passing behind them. Nervous cops are dangerous cops. Also, never touch the police or their equipment (vehicles, flashlights, animals, etc.) - you can get beat up and charged with assault. The police do not decide your charges; they can only make recommendations. The prosecutor is the only person who can actually charge you. Remember this the next time the cops start rattling off all the charges they're supposedly "going to give you." Questioning Interrogation isn't always bright lights and rubber hoses - usually it's just a conversation. Whenever the cops ask you anything besides your name and address, it's legally safest to (respectfully) say these Magic Words: "I am going to remain silent. I want to see a lawyer." This invokes the rights which protect you from interrogation. When you say this, the cops (and all other law enforcement officials) are legally required to stop asking you questions. They probably won't stop, so just repeat the Magic Words or remain silent until they catch on. Remember, anything you say to the authorities can and will be used against you and your friends in court. There's no way to predict what information the police might try to use or how they'd use it. Plus, the police often misquote or lie altogether about what was said. So say only the Magic Words and let all the cops and witnesses know that this is your policy. Make sure that

8 when you're arrested with other people, the rest of the group knows the Magic Words and promises to use them. One of the jobs of cops is to get information out of people, and they usually don't have any scruples about how they do it. Cops are legally allowed to lie when they're investigating, and they are trained to be manipulative. The only thing you should say to cops, other than identifying yourself, is the Magic Words: "I am going to remain silent. I want to see a lawyer." Here are some lies they will tell you: "You're not a suspect - just help us understand what happened here and then you can go." "If you don't answer my questions, I'll have no choice but to arrest you. Do you want to go to jail?" "If you don't answer my questions, I'm going to charge you with resisting arrest." "All of your friends have cooperated and we let them go home. You're the only one left." Cops are allowed by law to lie to you to collect evidence and there are lots of ways they can trick you into talking. Here are some scams they'll do: Good Cop/ Bad Cop: Bad cop is aggressive and menacing, while good cop is nice, friendly, and familiar (usually good cop is the same race and gender as you). The idea is bad cop scares you so bad you are desperately looking for a friend. Good cop is that friend. The cops will tell you that your friends ratted on you so that you will snitch on them. Meanwhile, they tell your friends the same thing. If anyone breaks and talks, you all go down. The cops will tell you that they have all the evidence they need to convict you and that if you "take responsibility" and confess the judge will be impressed by your honesty and go easy on you. What they really mean is: "we don't have enough evidence yet, please confess." Jail is a very isolating and intimidating place. It is really easy to believe what the cops tell you. Insist upon speaking with a lawyer before you answer any questions or sign anything. So what happens if you are charged with a probation violation? Courts treat plea bargains as contracts between prosecutors and defendants. If a defendant breaks a plea bargain, the prosecutor is no longer bound by his or her side of the deal. Since your probation officer has total discretion over the type of punishment you receive, it s all up to him or her. If you have no prior violations on your record and com-mitted a minor offense, you may only be given a warning. However, for more severe violations or repeat offenses, your probation officer may let a judge decide your punishment in court. If you are found guilty, the judge may then impose additional probation terms, extend the length of your sentence, or even revoke your probation completely and put you behind bars instead. If a defendant fails to perform his or her end of the bargain, then a prosecutor can revoke the offer. In my opinion it is a set up for more problems. In some cases you become a target for future police vindictive encounters.

9 Are Plea Bargains a Good Idea? The primary justifications for plea bargains are that: Courts are overcrowded. Some argue that if you didn't allow plea bargains, courts would be overwhelmed and forced to shut down. Prosecutors' caseloads are also overloaded; fewer trials mean that the prosecutor can more effectively prosecute the most serious cases. Defendants save time and money by not having to defend themselves at trial. These primary justifications all provide benefits to the respective players: the court, the prosecutor and the defendant, but don't inherently offer any benefit to the populace at large or take any steps towards a truly just outcome. For this - and other moral, ethical and constitutional reasons - many in the legal field have openly challenged the plea bargaining system. In a notable example, the Attorney General of Alaska outright banned plea bargaining in 1975, and other states and localities have as well. What Types of Plea Bargains Are There? There are generally three types of plea bargains recognized. 1. Charge Bargaining: The most common form of plea bargaining, the defendant agrees to plead guilty to a lesser charge provided that greater charges will be dismissed. A typical example would be to plead to manslaughter rather than murder. 2. Sentence Bargaining: Far less common and more tightly controlled that charge bargaining, sentence bar-gaining is when a defendant agrees to plead guilty to the stated charge in return for a lighter sentence. Typically this must be reviewed by a judge, and many jurisdictions simply don't allow it. 3. Fact Bargaining: This is the least common form of plea bargaining, and it occurs when a defendant agrees to stipulate to certain facts in order to prevent other facts from being introduced into evidence. Many courts don't allow it, and in general, most attorneys do not favor using fact bargains. Plea Bargains are controversial. Although plea bargaining allows the criminal justice system to conserve resources, it is controversial. Some people believe that it is inappropriate in that it allows defend-ants to get off too easily. Others argue that it is too coercive and undermines important constitutional rights. Plea bargaining does require defendants to waive three rights protected by the Fifth and Sixth Amendments: the right to a jury trial, the right against self-incrimination, and the right to confront hostile witnesses. The Supreme Court, however, has repeatedly rejected arguments that plea bargaining is unconstitutional. See, e.g., Brady v. United States, 397 U.S. 742 (1970). But it has held that defendants guilty pleas must be voluntary, and that defendants may only plead guilty if they know the consequences of doing so. McCarthy v. United States 394 U.S. 459 (1969)