I love to try cases.  I love the argument.  I love the fight.  I love the way the evidence unfolds.  I love the strategy.  I love the way it requires a lawyer to think on his feet.  I love the cat and mouse game.  I love being in command of the courtroom.  I love being able to directly address a jury or judge to tell them my client's side.  And I love winning.  Most trial lawyers do.  It is one of the reasons we become (and remain) trial lawyers.

But despite that, often the sensible thing to do is to accept a plea agreement -- a "plea bargain."  You see, if the judge or jury return a guilty verdict, I'll still be allowed to walk out of the courtroom and go home or back to my office.  The defendant may be taken into custody immediately to wait for sentencing (or in Sessions Court may be sentenced immediately) and may end up staying behind bars for some time.

Things Not To Do
One thing you should not do is accept a plea bargain simply because it allows you to stay out of jail at the moment.  If there is very little chance of conviction, and particularly if the case is being tried in Sessions Court or in City Court, accepting a plea bargain and taking probation or a sentence that is suspended on your good behavior is often a serious mistake.  This is because you can appeal the case to Criminal Court for a jury trial and would likely be able to get the same sort of plea offer there.... or better.  And if you win at trial in Sessions Court the case is gone, entirely, with no conviction on your record, and no possibility of having your probation revoked.

If you accept a plea agreement with probation on a case that should have been dismissed entirely because the charge was a crock to begin with, you can have that probation revoked by another charge that has no real merit.  Examples of this are frequently found in domestic cases or in situations where two parties have a long-standing animosity and one of them swears out a bogus Affidavit of Complaint against the other.  Defendants will come to court and hear that they can go home and not have to come back to court on the case if they just plead guilty and take a suspended sentence of 11 months and 29 days.  The defendant wants to "get it over with" and avoid any possibility of jail.... so they plead guilty and go home.  Unfortunately the person who started the problem in the first place now knows that all they have to do to get the defendant picked up and tossed in jail for the 11 month and 29 day sentence is to make up another bogus charge and to them persuade a judge that the defendant "did it again."

Once the defendant already has the first conviction, the judge may actually require less proof for a second one, or the first conviction may create problems for the defendant testifying, since the first conviction might be allowed into evidence then, or if the court is hearing a Petition to Revoke Probation at the same time as the trial, the court might dismiss the new charge because the proof was too weak to reach the level of being "beyond a reasonable doubt" and still revoke the probation because there was some evidence there that the defendant violated the terms of probation, which include the general condition of "good behavior."

Determining what to do with a settlement offer involves more than merely looking at whether you will be allowed to walk out the courtroom doors that day.

The Calculus of Plea Bargaining
In deciding whether to accept or reject a plea agreement, you need to look at the risk of conviction, the likely sentence, and the value of the plea agreement that is offered.  It may seem cold, but at least initially, to get an impartial perspective, you need to look at it the same way a gambler determines whether to place a bet.  This means you take the likelihood of conviction (expressed as a probability) and multiply it times the likely sentence in convicted, and then balance that against the sentence that would be agreed to in the plea bargain.... and to further factor in the cost to you of having the conviction permanently on your record either way, and the risk of having your probation or parole revoked if the plea agreement includes probation or parole.

You end up with something resembling a mathematical equation, with the probability of conviction expressed as a percentage multiplied by the probable sentence producing a number that needs to be weighed against the sentence offered as a part of the plea agreement.  For instance, if you face a 50% probability of being convicted (and you need to remember that even the most successful criminal defense attorneys tend to lose far more than half of their cases), and if you would likely get a 10 year sentence if you are convicted, you multiply .5 x 10 years and the result is five years.  If the settlement offer is for just three years, it makes sense to take it.  If the settlement offer is for 8 years it makes sense to take it to trial and roll the dice.

But an individuals aversion to risk and tolerance of risk are also factors that must be considered.  Whether probation will or will not be available if there is a conviction must be considered, since for some people the prospect of any prison time at all is unacceptable.  These are factors that the defendant has to consider on his or her own.  I can run the first set of numbers, the probability of conviction times the likely sentence, and I can do it for multiple charges, allowing a defendant to look at numbers representing the ballpark statistical probabilities involved in taking a case to trial.... but only the defendant can properly weigh the other factors.

I have had clients who were facing up to 20 years in prison if they had been convicted, and seen them properly reject plea agreements that would have reduced the felony to a misdemeanor and given them a 30 day suspended sentence.  I have had others who accepted plea agreements in which they pled guilty as charged and took the maximum sentence.  I have had still others who have rejected a plea agreements that would have given them a set period in prison and have instead merely pled guilty without an agreement or a trial and left the sentencing entirely to the judge.... and everyone of those clients made the right decision in their particular cases.

I have also had clients who have accepted plea agreements that let them remain out of jail or prison for a period of probation, or who rejected plea agreements because they would have required them to go to jail right then.... and those clients have made bad decisions (against my advice, I want to add).

The client facing 20 years in prison on an attempted murder charge rejected the plea offer of a 30 day suspended sentence because I had collected enough evidence and was familiar enough with the facts of the case to know that there was no realistic prospect any remotely sane jury could have convicted my client if the defense was presented properly....  and ultimately the the prosecution dismissed the charge entirely.

Without identifying any of my clients, defendants sometimes plead guilty to everything and accept the maximum sentence because they know they will be convicted at trial, and that they will get the maximum sentence, and they do not want to force themselves and others to endure the emotional stress of a trial.

Reasons For Bad Decisions
Other defendants may reject plea agreements that they should accept because they cannot bring themselves to admit their guilt, or because they are emotionally or intellectually incapable of properly balancing the the certainty of a 45 day sentence to begin immediately against the 99% probability of later conviction and a far longer sentence (even if a sentence of several years).  These are people who would rather have a dollar today than $100 next week.  People who will always avoid facing or accepting pain or punishment in the present, even if it means far more severe pain or punishment in the future.  They literally lack the psychological makeup to reach intelligent decisions that require any delayed gratification or that subject them to immediate discomfort.

For defendants capable of making an intelligent decision, they need the advice of their attorney, not so much on whether to accept the plea or reject it, but on the odds of conviction, on what offense or offenses, the likely sentence if convicted, and also on the chances for a better plea offer coming later.  Attorneys are often only able to give meaningful advice on these things after they have learned more about the case and sometimes not until after they have argued certain motions to the court to try to weaken the prosecution case or to discover more about what evidence the prosecution has.  For serious cases, this generally requires a preliminary hearing so the defense attorney can find out what evidence the prosecution has and how the prosecution witnesses are likely to come across to jurors -- whether the witnesses are credible or sympathetic.

The Process
Unfortunately, sometimes the prosecution is becoming familiar with the case at the same time the defense attorney is.... and plea offers made early in the process are withdrawn as the prosecution sees that they are more likely to convict on everything as charged and as they become more upset by the defendant's behavior or record.  At times the best thing for a defendant to do is to accept the first offer the prosecuting attorney makes and to get it announced and approved by the court before the prosecution wakes up and becomes more familiar with the facts or with the defendant's record.

A plea bargain is essentially a "deal", or agreement between you and the prosecution.  They can take several different forms -- all the way from pleading guilty as charged and accepting a standard punishment for the offense, to having the case passed for a period of time and then dismissed if you stay out of trouble during that period of time.  If there are any co-defendants, prosecutor might offer to reduce the charge against you and recommend that the Court give you a light sentence or probation, if you plead guilty and testify against your co-defendants.  If there are no co-defendants but you do not have a bad record or the offense is minor, just in order to avoid trying the case or to avoid the risk of losing at trial, the prosecutor might offer a light sentence or reducing the charge to in exchange for his or her promise to recommend to the judge that a particular sentence be imposed.  In certain cases, the prosecutor may offer to allow you to plead guilty to a less serious offense than the one with which you are charged.  Such a plea reduces the range of sentences the judge may impose.  The judge is the only one who can decide what your sentence will be (subject to limits set by law) and all plea agreements must be approved by the judge.  Plea bargaining may continue up to or even during trial (though some judges announce that they will not approve a plea agreement after a particular point in the process).  If you do not want a trial, you may always plead guilty to all the charges brought against you whether or not the prosecutor agrees; the judge then decides your sentence.

Often, before the prosecution will agree to the terms of a plea bargain, he or she will consult with the victim or the victim's family.  There are some cases the prosecution might want to settle, but ultimately refuses to settle or dismiss because of pressure from a victim or the family of a victim.

Intelligently deciding whether to accept or reject a plea offer requires meaningful advice from a competent, experienced attorney with a good idea of what the particular judge and prosecuting attorney on your case are likely to do if you take the case to trial.  Sometimes getting the best plea agreement possible for a client involves letting the prosecution know of weaknesses in the prosecution's case.  Sometimes it involves letting the prosecution know why there should be some sympathy for the defendant.  Sometimes a defense attorney will not want to do either of these in trying to negotiate a plea because doing so would allow the prosecution to better prepare its case and overcome those problems by the time it goes to trial.

A plea agreement can come at any time.  While it is very unusual, sometimes plea agreements can be reached on the day of arraignment, the first day the defendant appears in court on a charge.  Other times plea agreements will be reached after a trial has started, sometimes even after the jury has returned with its verdict, right before the verdict is announced.  There is seldom any definite time for a plea agreement, though some judges will not accept them after a certain date is reached or after a jury is sworn.

Invariably some defendants will insist that their attorney should be able to get a better "deal", because their cousin's neighbor's boyfriend's uncle had a case just like it and they got off with the charges being dismissed and the prosecuting attorney and the judge both writing him letters of apology that he should ever have been treated so unkindly as to have been accused in the first place.  My response to this is pretty simple.... if you believe it, then go get your cousin's neighbor's boyfriend's uncle to represent you.

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