7 Practice-Tested Plea Bargaining Strategies
Most criminal cases end with a plea of guilty, rather than a trial. Thus, from the outset of the case, you should be exploring the opportunities for a disposition short of trial, with both your client and the prosecutor. Toward that end, consider these 7 practice-tested strategies and negotiating tips, pulled directly from Thomas J. Farrell’s Criminal Defense Tools and Techniques:
Be mindful of collateral consequences when negotiating a charge bargain
If each of several charges carries the same sentence, bargain for the one that carries fewer collateral or future consequences. Generally, try to avoid convictions for crimes of violence, sex offenses or drug offenses because these crimes often trigger adverse immigration consequences, disqualifications for benefits programs, sex offender registration and recidivist sentencing provisions on subsequent convictions.
Accept an appeal waiver when . . .
It has become routine for federal prosecutors to insist that, as part of the plea agreement, your client waive any right to appeal either the conviction or the sentence. You are justified in accepting an appeal waiver if the plea agreement confers a benefit that you are unlikely to receive without the government’s agreement, such as waiver of a mandatory minimum sentence, dismissal of a count that carries a severe collateral consequence or jacks up the sentencing guidelines, or an agreement to forego provable aggravating factors or to stipulate to controverted mitigating factors.
Consider a bench trial with stipulated facts to preserve a legal issue for appeal
If your jurisdiction does not provide for conditional guilty pleas, and you want to preserve a meritorious legal issue for appeal, consider a bench trial on stipulated facts. Judges grant leniency for guilty pleas because they save time and demonstrate the defendant’s contrition. If you waive a jury and stipulate to the facts and explain that though your client does not contest his factual guilt, he has a meritorious legal issue which deserves appellate review, you might be able to preserve the issue for appeal as well as obtain the sentencing discount which a guilty plea warrants.
No contest and Alford pleas are seldom recommended
Entering a “no contest” or Alford plea generally is not advised unless the prosecution concurs and the judge is willing. Such a plea is most advantageous where parallel civil litigation looms. However, you must check the law of your jurisdiction regarding the impact of a nolo plea in civil litigation. The majority rule is that it is inadmissible, but some jurisdictions dissent. Also, even a no contest plea may give rise to a host of collateral consequences in subsequent litigation, such as deportation, revocation of a doctor’s registration to distribute controlled substances, civil commitments and imposition of repeat offender sanctions.
Caution your client that drug courts may trap him into a long sentence
While drug courts offer an opportunity for your client to address the underlying problems that perhaps contributed to a criminal lifestyle, they also may trap him into a long sentence. This is particularly true of the post-adjudicative type of drug court program. Once your client has pleaded guilty and then failed a drug treatment program, he has little leverage to obtain a favorable sentence and may be facing a substantial period of incarceration. Moreover, as a prerequisite to participation, drug courts often require the defendant to agree to waive his right to demand a hearing on whether he successfully completed the program.
Help your client make a reasoned decision
The decision to plead guilty belongs to your client. Nonetheless, he is entitled to your advice and even your persuasion regarding what you adjudge to be in his best interests. One way to help your client make an informed decision is to play out the trial, as objectively as possible.
Draw on your experience with trials, juries and judges to predict the verdict that is likely to result from the evidence. Avoid making the issue your belief in the client’s guilt or innocence. Phrase discussions in this way: “The judge has decided that the jury will hear that you have a prior drug-trafficking conviction. Once the jury hears that, they will not believe that you did not know what was in the trunk of the car you were paid $500 to drive across town. Maybe you really did not know, but a jury will never believe it.” Do not say: “You and I both know that you knew what was in the trunk.”
Play out your client’s and other defense witnesses’ testimony, and cross-examine that testimony just as the prosecutor would.
Refer to the standard jury instructions on credibility to refute your client’s unrealistic expectations about tearing apart prosecution witnesses.
Warn your client that even the most skillful attacks on the prosecution witnesses’ credibility often fail in the face of cumulative and corroborating evidence.
If your client changes his mind after sentencing . . .
After sentencing, a defendant can withdraw his plea only if he shows that his plea was unknowing and involuntary. A motion to withdraw frequently calls into question the competence of defense counsel’s advice to plead guilty. Your client deserves to be represented by conflict-free counsel on the motion, so if he insists on proceeding with it, ask the court to appoint new counsel.
Thomas J. Farrell is a criminal defense attorney in private practice in Pittsburgh, Pennsylvania. Mr. Farrell began his legal career as a law clerk to U.S. District Court Judge Gustave Diamond of the Western District of Pennsylvania. Following his clerkship, he served as an Assistant Federal Public Defender in New York City. From 1995 to 2000, he was an Assistant United States Attorney in the Western District of Pennsylvania.