Plea Bargaining

November 26, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

A criminal plea negotiation is like any other contractual bargaining discussion meaning at the very least it requires two parties to say “yes” to a singular outcome — or there isn’t a deal.

Prosecutors ask Defendants to waive many constitutional rights — the most important of which to them is a the Defendant’s right to a time and resource consuming trial.  The defendant typically (though not always) seeks certainty, leniency, or to “cut their losses” in plea negotiations.

Plea negotiations based on these bargaining positions are unfortunately a one-sided affair by their very nature.  The Defendant plays with real money and prosecutors play with monopoly money.

An accused has actual money to pay to his/her lawyer, has a possible criminal record in the balance which can cost them a job or income in the future, and obviously an accused has to weigh the possibility of going to prison in some circumstances.

On the other hand prosecutors typically lose very little by losing at trial.  In theory they are public servants and don’t want to be seen losing cases… but very few cases are high-profile enough where the DA’s office or their junior assistants fear any real public backlash.  Some prosecutors, unfortunately, actually see trying weak or bad cases as being tough on crime in their bizarro world because those same prosecutors clearly presume the accused guilty despite the weak evidence in the case.

What does work in an accused favor in plea negotiations is the prosecutors are handling anywhere between 750 and 2,000 cases per court at a time.  This means they’re often seeking the path of least resistance and they can’t possibly try or contest every single case.  They have a choice of being reasonable during plea negotiations or having their docket grind to a halt if they insist on never giving an inch regardless of the reason.

There are other effective ways for an accused to plea bargain.  Many prosecutors are fair and have a decent sense of what is just when presented with proof the accused deserves leniency or another chance.  Many other prosecutors, in contrast to one’s I’ve described above, rightly fear losing in a public forum.  Similarly, the cases a prosecutor fears losing also tend to be more problematic and time consuming for them.  I noticed as a prosecutor when cases were thoroughly researched and investigated by a defense lawyer, trying the case would be frustrating at the very least.  Whether I’d admit or not, my guess is I was more inclined to offer a favorable deal to get of rid such “problem-child” cases.

What does this mean if you’re accused of a crime?  It means you should have a lawyer prepared to do battle on two fronts.  The lawyer should thoroughly investigate the legal and factual defenses of your case… and as a backup, be able to demonstrate to the prosecutor the accused is worthy of leniency even if found to be guilty.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any situation, you should contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship and any such communications are not considered confidential nor privileged.

How Do I Plead Guilty to a Criminal Charge?

June 8, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

I hate advising clients to plead guilty.

Hate it!

Some tough-guy lawyers will never admit to advising clients to plead guilty but every criminal defense lawyer I know will admit to not only advising clients to accept a deal but begging or pleading with a client on occasion.  Often the facts are stacked against you or the down-side of taking a case to trial is just too scary for the client.

There is no real difference between a guilty plea and a no-contest plea in Texas, so I’m referring to both in this blawg.

A guilty plea is like a contract in Texas.  Both you and the prosecution sacrifice and gain something by way of agreement (you usually sacrifice a lot more).  You are waiving your rights to trial and all that comes with it… the right to prepare, the right to call witnesses, the right to cross examine… etc.  The State is waiving their “right” to seek a greater punishment and, they would argue, their “right” to a jury trial.  In return, you are getting a specific punishment (which may be deferred adjudication depending on your plea deal) and more importantly — you’re also eliminating variables of what may happen to you at trial.  The State benefits because they get a verdict without a trial.

The plea is subject to approval by the judge.  When you plead guilty, you legally empower the judge to (a) find you guilty and (b) sentence you anywhere within the punishment range.

A Texas judge can do one of three things with a plea.  He can accept it (the vast majority of pleas are accepted — I don’t have stats but I’d be willing to bet it’s 99.5% or even greater).  He can reject the plea, or he can accept the plea and modify terms an conditions of probation assuming the plea includes probation.

If the judge flat-out rejects the plea, then he must inform the defendant he’s rejecting the plea so the defendant can withdraw his plea an assert his right to a trial.  A judge rarely knows any specific fact of your case other than what you are charged with — like a DWI, marijuana case, drug possession with intent to distribute, and so on… and for this reason, the Judge is unlikely to tinker with a deal a lawyer and prosector have worked hard to make happen.

Whether to plead guilty or not guilty is a case-by-case analysis.  I advise clients to fight on certain cases for all sorts of reasons and I advise clients to plead guilty on occasion too — because that may be the best answer or because we’re getting a really good deal under the circumstances.

Your choice to plead guilty or not guilty is an extremely important one.  Don’t make the decision alone — have a licensed attorney experienced in the area of criminal law assist you.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about your specific situation you should consult an attorney.  This article does not create an attorney-client relationship.


If I Am Guilty, Then I Have to Plead Guilty, Right?

March 2, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Wrong, wrong, wrong!

People say this to me all the time.  I honestly admire them when they do.  But here’s the thing — you have a right straight from our Constitution to plead not guilty and force the state to prove your guilty beyond all reasonable doubt.  If they can’t you are entitled to acquittal regardless of what you did or didn’t do.  People who have a problem with that also have a problem with Thomas Jefferson, John Adams, and our other founding fathers.

Here is the flaw in the “I have to plead guilty” attitude:  Just because you’re being remorseful doesn’t mean the law and the prosecutor will be fair.  The State of Texas doesn’t have a phone line to the almighty so they can together decide what is and is not justice (regardless of the attitude of many of their prosecutors and policemen).

Take a DWI arrest in Collin County for example.  The person is taken to jail which is like a punch in their gut.  They have an embarrassing scene on the roadside, and then they have friends or loved ones help them get out which is also humbling.  For many, that experience alone may be punishment enough.

The state takes the position that you need to be branded with this forever and they’ve put a price tag on it designed to be as nasty a hardship on your wallet as they can possibly inflict.  Not only that, some politician down in the polls 15 or 20 years from now may decide to re-punish you with additional red-tape to prove they are “tough on DWI”  (and yes, there have been laws passed this last decade which affect the rights of those convicted in the past).

Also don’t forget you don’t have to prove your innocence at trial.  Even if you are guilty, the state often can’t prove it or they make a legal mistake entitling you to acquittal.  That is their fault and not yours.  Again, you’ve done nothing shameful or dishonest by pleading not guilty.

Merely because a prosecutor or policeman says pleading guilty equals justice doesn’t make it so.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice please directly consult an attorney.