News Room

Plea Bargaining (Part Two) - Plea Bargaining Later in the Case

By Bill Nimmo

Frequently the question comes up whether or not the client should take the early deal or reject it and head through the preliminary hearing towards trial. In most cases the early bargain is the best but in many cases it is not the best move. Whether or not you should reject the early deal is a question that can only be answered after you consult with an attorney who has extensive experience in criminal defense and has prepared your case effectively. Part of the skills of a good attorney is to help you understand what the risks and rewards are in going forward instead of taking an early deal.

Watch out, however, because your bargaining situation could get worse instead of better. If you have a case involving use of a firearm, for instance, the DA might add the firearm allegation that can't be removed or stricken by the judge. That means if you are convicted there is no escaping a major 85% prison term. In a child molestation case, if you go through a prelim and the children take the stand and are cross examined, your chance of a good plea is diminished. Child molest prosecutors take a hard line approach to a defendant who makes the kids take the witness stand.

Whether you decide to go forward depends on the facts of the case itself. As an example, if you have a case where you are charged with assault with intent to commit great bodily injury and you believe that the victim attacked first or is exaggerating the event, you might benefit from going forward, especially if the offer is nothing great. Going through the preliminary hearing allows your lawyer to cross-examine and expose the alleged victim as a liar or as an exaggerator. This helps because it shows the deputy DA that their alleged victim is not as credible as they thought. This will give you a renewed opportunity to negotiate.

Sometimes pushing a case forward is not just an attempt to get a better deal, it is a necessity to get a just result While you may wish to avoid a trial because of the risk involved, sometimes the offer is so ridiculous that you have no choice. This is a scary time for the accused and the lawyer, because potentially the risk of losing could be great. This is when you need to be fully informed of the facts and fully prepared to defend the case. You don=t want to turn down a reasonable offer and end up serving many more years in prison than was offered earlier as a plea bargain.

The decision to go to trial is not so tough if the punishment alternatives are limited or not too high in relation to the offer. Many times you can do better at trial even if you lose because the judge gets to hear the facts and see that they are less serious than alleged. Because they have several days to get to know the accused, the judge can more easily see that the accused is not such a bad person. . I recently had a case, involving a large embezzlement, where the DA wanted my client to plead to three years in prison. Because of certain mitigating circumstances I believed that, even if the client were convicted at trial, that the judge would give him a lighter sentence. Sometime during the jury selection we settled the case and the judge gave the client probation.

But, like many of the decisions you will face during a criminal prosecution, you can=t take this decision lightly. Your attorney and yourself need to thoroughly analyze and discuss the matter before you decide to reject the final plea offer and begin jury trial. The results of a jury trial could be devastating for you.

The bottom line is you need to make yourself fully informed of the facts and try your best to form a trusting relationship with your attorney. Understand, however, that settlement is the grease that lubricates the criminal justice system and you need to take advantage of it. There are so many mandatory or presumptive prison sentences and harsh enhancements in the law that you can=t afford to ignore plea bargain possibilities.