Plea Bargaining: know how the game is played befir e you step to the table

The plea bargaining process is a crucial part of our criminal justice system.   More than ninety seven percent of all criminal cases are actually resolved by way of a pre-trial disposition.  Such a disposition can come in one of three forms.  You and the prosecution can reach an agreement as to what charge(s) you will plead to and exactly what sentence you will receive as a result of that plea.  Such an agreement is what most people think of when they use the phrase "plea bargain".  In reality, this is a stipulated sentence and the judge is needed only to take the plea and impose the agreed upon sentence.  When the parties are unable to reach agreement on a particular sentence, they can sometimes agree on a plea to a specific charge(s) which is referred to as “charge bargaining”.  When this occurs, you and the prosecution agree that the actual sentence on those charge(s) will be decided by the judge who took the plea after hearing all of the evidence and argument at a sentencing hearing.  However, the most common plea bargain involves a little bit of both “charge” and “sentence” bargaining.  In those cases, you and the prosecution agree on a plea to specific charge(s) and then further agree to certain limitations on what sentence will be imposed by the court.  For example, if you and the prosecution agree on a charge(s) and nothing in terms of a sentence beyond the fact that you will receive a grant of probation, the court will determine the terms of that probation and the amount of local custody (if any) after hearing all the evidence and argument at a sentencing hearing.  In some cases, you and the prosecution can agree on a charge(s) and then agree on a “lid” which will leave sentencing up to the judge but limit him/her to imposing something at or below the agreed upon lid.  For example, if you and the prosecution cannot agree on whether your case should involve a prison term or probation grant with local custody, you can sometimes agree on a “lid” which would limit the maximum sentence the court could impose but also give your attorney the ability to argue at the sentencing hearing for a probation grant with local custody.    
 
Although the plea bargaining process usually occurs disposition (before preliminary hearing) and/or readiness (pre-trial) conferences, discussion about disposition can go on throughout your entire case up to and even during trial.  Because of the posturing and tone of the negotiations that occurs in most cases, the plea bargaining process can often seem like a game of poker between your attorney (on your behalf) and the prosecution.  Unfortunately, plea bargaining is not meant to be a poker game as the stakes are your personal freedom and future.  With that in mind, the only way to maximize the benefit available from the plea bargaining process is to fully understand your case and all of the potential issues that must be considered and work aggressively with your attorney towards reaching the best possible disposition.  Failure to do so can only leave you and your attorney bluffing a weak position against the prosecution who is more often than not, holding all the cards…  

Your work within the plea bargaining process should start at the onset of your case.  You should be carefully reviewing the facts of your case, considering potential defenses, considering the impact of any allegations related to the offense at issue or your prior record, discussing what the prosecution is likely to offer, and what you and your attorney must do to convince the prosecution that your position is far more reasonable.  Failure to do this work at the onset of your case will leave you and your attorney at the mercy of the prosecution and their assessment of you and the case.  Once that happens, your chances of getting the best possible plea bargain become about as likely as drawing that drawing into a royal flush in a high stakes poker game.  The following topics relate to common questions and issues that every defendant must understand in order to make the best decision possible:


IF JAILHOUSE LAWYERS ARE SO SMART WHY ARE THEY IN JAIL?
When you sit in custody for days, weeks, and even years while waiting to resolve your criminal case, you undoubtedly will come in constant contact with other inmates who consider themselves experts on the criminal justice system.  They want to give you advice about your case and/or urge you to ignore the advice of your attorney.  More often than not, the advice is based upon incorrect understanding of the issues in your case, the applicable law, and/or the sentencing options available to you.  In considering this advice, you should apply the same types of questions you should pose when considering whether to retain a particular attorney.  Is this person licensed to practice law?  Do they have the experience and/or qualifications to properly advise me in my case? Have they seen everything available in my particular case before trying to give me advice about what I should do?   Or are they just telling me what they think I want to hear in order to close the deal or sound good?  Do they have any references of past case results that would indicate that they can properly advise me?  Jailhouse lawyers, just like some real lawyers, have just enough knowledge and experience to be dangerous.  They may sound good at first but as the smoke begins to clear, you are left with bad advice and a bitter taste in your mouth.  

Talking about the specifics of your case is not always wise when in custody as only your communications with your actual attorney are protected under the law.  With that in mind, there is nothing wrong with inmates talking about particular legal issues and/or you then asking your attorney whether something you heard may have some applicability to your case.  But you must always remember that no two criminal cases are ever exactly the same.  For that reason, what may work on one case or simply because one case resolved one way does not mean that every case that sounds like it will or should get the same result.  And when you find yourself mesmerized by the advice being offered by a jailhouse lawyer, ask yourself how smart can they be if they are sitting right there in jail with you…

“MY CASE IS NOT AS BAD AS IT SOUNDS”
No one knows the facts of your case better than you do as you were obviously there and directly involved.  For that reason, it is very easy to assume that if you know what happened, everyone else should see it that way as well.  But when you see the police reports and/or the witness statements for the first time, you are taken aback at how much worse all of that makes your case sound.  The bottom line is that your version and the prosecution’s version are very rarely the same.  The reason for that is simple.  The prosecution is usually acting on one side of the story.  Or they have the story right but have no idea about all of the facts and circumstances that make far less severe than it sounds.  When this happens, you and your attorney cannot simply sit back and assume the prosecution will change their minds simply because your attorney tells them what you believe happened.  Further, you cannot assume that they will figure out the factual discrepancies and/or recognize all the facts/circumstances that mitigate what happened.  This rarely happens and the key to reaching the best possible resolution of your case is recognizing what the prosecution needs to know early in the case and then aggressively obtaining that information by way of discovery requests, investigation, motions, and/or subpoenas.  Once you and your attorney have done the work required to educate the prosecution on the complete picture, you will quickly find them far more amenable to doing the right thing in your case.    

YOU CAN’T TURN A YUGO INTO A PORSCHE
In order to successfully navigate the plea bargaining process, you must first clearly understand and accept the vehicle you are stuck with.  This should happen at the onset of your case and involve a thorough discussion of the charges against you as well as the possible sentences for those charges.  But your discussion should not end there.  You must read and understand the fine print that is almost always there in the form of allegations and/or enhancements.  These allegations/enhancements can severely impact and/or limit your options in terms of a plea bargain and where some can be struck by the court and/or prosecution there are some that must be imposed no matter what once they are filed.  These allegations/enhancements are usually listed to the right of each charge on your charging document.  Look at them carefully and make sure your attorney thoroughly explains each at the onset of your case.  Only then can you make some realistic decisions and goals about what to expect in your case as it progresses.  

Once you have reviewed and understand the allegations/enhancements alleged in your case, you must then come to some agreement with your attorney as to realistic goals for any resolution of your case.  If your case includes no probation allegations, prison priors, and/or violent felony charges, it is usually pointless to hold out for probation.  If you have strike priors alleged that are only a few years old, it may be very hard to get the prosecution or court to strike them.  If your new case includes violent felony charges and you have violent felony priors (called “nickel priors”) which require a mandatory five years in prison consecutive, you have an uphill fight on your hands if you hope to avoid that extra five years.  In essence, you are stuck with the vehicle you were given and although there are always things that can be done to improve your situation, you will never see improvement if you and/or your attorney are pushing unrealistic goals.  

YOU GOTTA KNOW THE PLAYERS AND THE FIELD BEFORE YOU PLAY THE GAME
San Diego County is a large metropolitan area that is divided up into four judicial districts (Central, South Bay, El Cajon, and North County).  And while all four districts are part of the San Diego County Superior Court, plea bargaining in each district can be very different even when dealing with the same types of offenses.  At the onset of your case, you must discuss what district your case will be heard in and what you can expect within that particular district when it comes to plea bargaining and/or sentencing.  

If your attorney is qualified and experienced in dealing with criminal cases within these four districts, he/she will be able to fully articulate what you can expect from the particular settlement judges as well as the habits and practices of the various prosecutors in each judicial district.   For example, disposition conferences (pre-preliminary hearing) in the Central District occur in two different departments both of which now have relatively new judges who are less likely to consider all manner of mitigating information in fashioning creative plea bargains.  Instead, they impose essentially the same sentences for various offenses in all cases which can make early resolution of your case difficult.  This means that a large number of cases in the Central judicial district do not get resolved until they reach readiness conference (pre-trial) which are all heard by one very seasoned, fair, and creative judge.  In contrast, disposition conferences in North County are heard by one judge and plea bargaining there does not always improve when you hold out to the readiness conference.  Further, you can almost always assume that a standard sentence for particular offense in North County will be far more severe than that seen in the other districts for the same offense.  For these reasons, you cannot make realistic goals if you do not know the judges and/or prosecutors you will be forced to negotiate with on your case.    

“JOINT SUSPENSIONS” CAN HURT MORE THAN THEY HELP
Jailhouse lawyers often speak of “joint suspensions” as a way out of those difficult sentencing situations created by poor prior records or performance on prior probation grants.  A “joint suspension” is created when the court actually imposes a state prison sentence and then stays execution of that sentence pending successful completion of a probation grant.  When this is done you are sentenced to state prison and if you fail to comply with any of the terms of your probation, it is understood that you WILL go directly to state prison.  The reality is that where a defendant’s case or prior history places him/her right on the edge between probation and prison, such a sentence can be a godsend.  But it can also be a curse if you seek such a sentence only as the quickest means to the street wherein you are determined to go right back to the pattern of behavior that landed you in custody on your current case.  With this in mind, when I have a client who is considering whether to accept such a sentence, I make it very simple to understand.  Being given such a sentence is a lot like being handed a rope while you are standing on a ledge halfway down a very steep cliff.  As you stand there with that rope, you have two choices.  You can either use the rope to pull yourself up the cliff and get on with your life.  Or in the alternative, you can put the rope around your neck and jump off the cliff.  

If you are trying to understand why anyone would willingly put the rope around their neck, consider this example. A defendant has a significant criminal history but his current offense is borderline and while prison is the typical sentence, a probation grant could be reached by way of a joint suspension.  The defendant’s only goal is to get out of custody as quickly as possible and he will do or say anything to realize that goal.  In order to get that probation grant, the defendant accepts a five year prison sentence that is then suspended pending successful completion of probation.  Had the defendant taken the prosecution’s offer, he would have immediately done sixteen months state prison, served about half of that, and been off parole in roughly ten months.  Instead, he served about seven months in county jail as part of the probation grant before getting released.  And four months after getting released committed a new felony offense.  Because he put that rope around his neck instead of pulling himself up with it, he is now facing five years in state prison plus additional year(s) for the new offense and may have to serve 80% or more of that time depending upon whether the first plea resulted in a strike prior.    

The reality is that every defendant wants to get out of custody and that goal can distract them from making the best decision for their particular situation.  Only you can truly know whether you are ready to use that rope for good or instead, whether you are only fooling yourself because you want to get out and get right back in the game.  For that reason, before you make a decision that puts you out on that cliff with that rope, look in the mirror and ask yourself if serving that shorter sentence now is really the best result for you.

HIRING A LAWYER DOES NOT ALWAYS GET YOU A BETTER DEAL
When defendants rely to heavily on jailhouse lawyers in evaluating their cases or become frustrated with their public defenders, the age old myth that all government appointed attorneys are “dumptrucks” kicks in.  The reality is that in your rush to hire an attorney, you may well find yourself in exactly the same position.  Most indigent defense offices contain some very good attorneys, some attorneys that were once very good and now are tired and/or burned out, and some outright bad attorneys.  The private bar is no different.  Simply because you spend money for an attorney does not mean that you will get a better result.  In that situation your success will depend completely on the strength of your hiring decision coupled with your ability to work effectively with that attorney even in the face of bad news.  Regardless of whether you hire and attorney or not, there are some cases wherein the result is likely set from the onset and hiring an attorney is only going to provide you and/or your family with the peace of mind that everything that could be done was, in fact, done because you paid for it to be done.  With all of this in mind, do not fall prey to the attorney who promises everything in order to get the agreement signed.  Discuss your case thoroughly, be honest about your prior records or surrounding history, and above all else, determine if you can work effectively with that specific attorney before you sign the retainer agreement.   

SOMETIMES YOU HAVE TO ROLL THE DICE AND TAKE YOUR CHANCES
An agreement on a charge(s) and a specific sentence is always easier to swallow due to the certainty included with it.  You get to know what you are going to get sentenced to in advance and as a result, you are fully prepared for it when it is imposed.  In some more difficult cases, such an agreement is not always possible.  Holding out for a guaranteed sentence may lead you to trial and/or a far worse sentence once your case is completed.  When such a situation arises, your attorney should be utilizing his/her knowledge of your case, the applicable judicial district, and prior experience to position you for some form of charge bargain that allows you an opportunity to argue for the best possible sentence during the sentencing hearing.  Such a move is akin to rolling the dice in a craps game but unlike craps, here your attorney can significantly increase your odds of success by doing all of the required ground work before you roll.  

As discussed above, you and your attorney need to fully evaluate your case and determine what work can be done to improve your situation.  Once that work is done, you and your attorney should then reach agreement on realistic goals for charge or sentence bargaining if trial is not a viable option.  In reaching a decision on what is realistic your attorney does not have a crystal ball or special powers that allow him/her to read the mind of the judge or assigned prosecutor.  For this reason, you should be very wary of any attorney that is willing to lay claim to what he/she can deliver before having done the work or even evaluated the case.   In some cases it may be a psychological evaluation or background investigation into the cause of your behavior.  In others it may be investigation into specific facts involved in your case.  However, in all cases it will boil down to your attorney’s ability to gauge what is realistic and then doing the work or writing the motion or brief required to put you in the best position to realize that goal.  

CREDIBILITY IS EVERYTHING
Based upon all of the information discussed above, it is clear that the best possible plea bargain requires a great deal of work.  Further, you must have a strong relationship with your attorney in order to work effectively towards such a goal.  Your attorney is to be your advocate in what may be the most important negotiation process you will ever face in life.  His/her credibility is the most important tool in their arsenal.  They must be able to effectively present your position to the prosecution and court.  If he/she is well respected and presents a strong argument based upon clear and effective ground work, you will likely reach your goal if it was realistic and well reasoned.  However, that ground work will only be as effective as the information and assistance you provide your attorney.  There are no secrets and the only dumb question is the one you did not ask.  Keep all of these issues in mind when working with your attorney and you may well find yourself holding all the cards in the most important hand of your life.