By DFW Criminal Defense Lawyer Jeremy Rosenthal
Only 6% of state criminal cases go to jury trial. That means 94% are disposed of some other way. Those could be plea bargains or dismissals. Some dismissals are by agreement where the defendant takes classes, performs community service and/or completes other tasks and is basically a plea bargain without actually resulting in a plea.
Courtroom lawyers love to talk-tough. And I’m no exception because I eat nails for breakfast in the morning before dazzling every jury I see. But what we don’t brag about much are our plea-bargains. Plea bargaining doesn’t make wonderful fodder for lawyers web pages so you don’t hear lawyers talk about it much. Again – 94% of cases don’t go to trial so even the lawyers who talk the meanest game in town plea bargain far more cases than they take to trial. It’s just a fact.
Anyone who has come to see me about their case knows I analytically evaluate every case as if we are preparing for trial. They teach us in law school to start with the jury charge and go backwards. And I don’t wear my plea bargains on my sleeve either but candidly it’s where I do some of my best work of getting clients out of really bad jams.
When Plea Bargaining Makes Sense
Domestic violence is an area where sometimes we simply can’t plead guilty. It could trigger immigration, professional licensing, or other consequences we cannot accept. So this is the first question – can the client afford the consequences of a guilty plea in a family violence case?
Pleading guilty or not guilty is always the client’s choice. Some folks don’t have the stomach for trial. Trial in a domestic violence case normally takes a day or two but can take a week or more. I have fun in trial but that’s because I’m not worried about going to jail when it’s over and I’m not worried someone on the jury or someone who just wanders into the open courtroom might know me and post the affair on social media. I discourage the idea of pleading guilty just to avoid a trial most likely in front of strangers but again – it’s my client’s choice and not mine.
Pleading guilty or no contest may also make sense in cases where I honestly tell my client the odds for an acquittal are long given the specific facts of any cases… and I go through a cost/benefit analysis with my client about the pros and cons of taking the case to trial.
Important Factors in Getting a Favorable Plea Bargain
When someone is pleading guilty or no contest (there is no legal difference which matters in criminal law) – they are accepting responsibility. It’s important for folks to remember this. If someone is going to take responsibility for the charges against them – then I always advise clients to do so sincerely, earnestly and whole-heartedly.
Beyond this if someone is going to take responsibility they also take on the onus of not only promising not to do it again but taking the affirmative actions necessary to make sure and guarantee it doesn’t happen again. This may include accepting anger management, marriage counseling, or a batterer’s intervention program.
Often substance abuse and/or psychological disorders need to be addressed as part of the underlying causes. So a person may need to accept evaluations along with follow-up recommendations.
If someone is willing to face their decisions and demons to make sure a domestic assault doesn’t happen again then it obviously bodes well for plea bargaining.
Ultimately plea bargaining is far more common than taking a case to trial though many of my colleagues pretend otherwise to the public and to one another. It never hurts to have a good strategy of an exit-ramp in a case which can often be a plea bargain my client finds acceptable.
*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He has been designated as a Texas Super Lawyer by Thomson Reuters.