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Plea bargaining in Colorado is at the same time very complex and critical to the best possible result in any criminal case. This is part FIVE of a FIVE part series that addresses all aspects of plea bargaining- this part addresses preparing to plea bargain a case.
After the Defendant has been formally charged, the criminal defense lawyer should seek informal and formal discovery from the prosecutor. The criminal defense lawyer needs to know the prosecutor’s particular plea policies, general attitude and style toward plea bargaining, and his particular attitude toward the instant case.
If the criminal defense lawyer is not personally familiar with the prosecutor, he should consult with other defense lawyers practicing in the particular locality. He must also familiarize himself with the attitudes and sentencing dispositions of the potential judge(s) who may be involved at different stages of the case.
Finally, the criminal defense lawyer should thoroughly conduct an independent investigation of the case. This means interviewing all potential witnesses, obtaining documentary and other tangible evidence, and talking with those persons who may be involved in sentencing or some alternative disposition to the case (e.g., probation officers, those persons involved in potential pretrial diversion programs, the Defendant family members and close associates, and the like).
In serious cases, an independent investigator may need to be hired.
For the defense lawyer, the role of the Defendant is integral to proper preparation and the overall approach taken to the plea bargaining.
The criminal defense lawyer must be advised of:
(l) his sole right to accept or reject a proposed plea bargain;
(2) all aspects of the merits and demerits of the case and the applicable law;
(3) the overall process of plea bargaining and defense counsel’s particular strategy in the Defendant case;
(4) all plea offers made by the prosecutor;
(5) all consequences of accepting a particular plea bargain;
(6) the process of entering a plea before the court;
(7) any allocution that the court might require in connection with accepting the guilty plea; and
(8) the process of taking the case to trial were the defendant to choose that option.
Some defendants erroneously believe that they understand the criminal process. A defense lawyer should never assume that the Defendant adequately possesses this knowledge on his own.
A prosecutor will often impose a deadline on the defendant to accept a particular plea offer. This is used not only to induce the defendant to accept the particular plea, but to avoid expending further prosecutorial time and resources in the case. If the time-limited offer is rejected, the prosecutor may refuse to make any subsequent offers or only make less attractive offers.
To counter this tactic, defense counsel might argue that he needs additional time to independently investigate the case in order to comply with his constitutional duty to appropriately advise his client and assure that the defendant’s acceptance of the plea is knowing and voluntary.
If the prosecutor is not inclined to extend the deadline, defense counsel might ask the prosecutor for additional voluntary discovery to expedite defense counsel’s investigation. In this way, defense counsel might be able to obtain additional information about the prosecution’s case in the event that the prosecutor rejects the plea offer.
Delay is a common defense tactic.
With the passage of time, prosecution witnesses may become unavailable to testify; the victim may lose interest in the case; publicity may die down; the prosecutor’s backlog of cases may increase; or the prosecutor may simply lose his earlier passion for the case.
Defense lawyers often seek to delay the case by filing various pretrial motions, such as motions to dismiss, to suppress, for discovery, or for trial continuances. Of course, defense counsel must balance any tactics of delay against the risk of excessively irritating the prosecutor such that he ends up refusing to plea bargain at all. In addition, delay is usually unacceptable to the defendant when he is under pretrial detention…. in jail.
Sometimes defense counsel and the prosecutor might expressly agree to delay the case to allow the defendant to take certain action that will make a plea agreement or noncriminal disposition more palatable.
For example, if the prosecutor takes the view that the defendant’s criminal behavior is an aberration and that the defendant is deserving of a “second chance” or an opportunity to avoid a criminal record, but the prosecutor is not yet comfortable with an immediate outright dismissal, the case might be put “on hold” for a period of time during which the defendant might make restitution, obtain counseling, stay out of further trouble, or fulfill other specified conditions. After these conditions have been fulfilled, the case might be dismissed or the prosecutor might agree to a plea that results in a lenient disposition.
Sometimes a prosecutor will seek to induce a plea bargain through illusory promises that provide no actual benefit to the defendant. For example, a prosecutor might offer to dismiss a charge for which the defendant could not have been convicted, or promise to recommend a concurrent sentence where the defendant could not have received a consecutive one.
It is improper for a prosecutor to offer to recommend a lenient sentence in the event the judge asks for a recommendation when the prosecutor knows that the regular practice of the judge is to never make a request for a recommendation. To guard against illusory promises, defense counsel must know the law and the general practices of the sentencing judge.
After the defendant is charged, and before entering into plea discussions, a defense lawyer will often take steps to build up the image of his client in order to create factors that may justify a more lenient disposition.
For example, defense counsel might urge his client to get a job, make voluntary restitution, obtain psychiatric counseling, or enter a substance abuse treatment program. The overall goal is to demonstrate the defendant’s quick acceptance of responsibility through efforts to rehabilitate himself. Counsel might deliberately delay plea bargaining in order to allow time to build up the defendant’s image.
Some assistant prosecutors, genuinely or disingenuously, profess that they lack complete authority to enter into a particular plea bargain. This authority may be limited by the junior prosecutor’s need to obtain final approval from a superior, or because the negotiating prosecutor has given the victim or some other third person ”veto power” over the plea agreement.
To counter these situations, defense counsel might seek to play to the self- esteem of the junior prosecutor and motivate him to “sell” the proposed plea agreement to his superiors or other persons having input into the decision. Alternatively, defense counsel might insist upon bargaining with the senior prosecutor who possesses complete authority over the case, or arrange a joint meeting with the junior prosecutor and his supervisor.
Some defense lawyers believe that plea negotiations should not be initiated until the eve of trial because the aging of the prosecution’s case tends to increase the chances for acquittal. On the other hand, the closer the case approaches trial, the more likely the prosecutor will have prepared by interviewing witnesses and investing time and resources into the case. Consequently, the prosecutor may be much less inclined to plea bargain at the last minute.
Nevertheless, a plea may be entered during trial, while the jury deliberates, or sometimes even after trial.
Any number of events might occur just before the trial begins or during trial that may induce the prosecutor to plea bargain, such as a favorable ruling for the defense on a pretrial motion, the failure of a prosecution witness to answer a subpoena, or the development of an appealable issue. Thus, while prosecutors are generally not inclined to engage in last-minute bargaining, defense counsel might seize the opportunity to make a last-minute offer given a favorable, unexpected pretrial or trial development.
Some prosecutors might overcharge a defendant in an effort to secure an expeditious and advantageous plea. Overcharging is not per se unlawful or unethical so long as there is probable cause for each offense charged.
Prosecutors typically establish standard policies or guidelines for pleas in particular types of cases in order to provide relatively equal treatment for defendants similarly charged. Frequently, a prosecutor will use these policies as an “excuse” for not agreeing to a more favorable plea bargain for a particular defendant. In that situation, defense counsel should stress all relevant factors about the case which would warrant a departure from the policy to justify a more favorable plea bargain for his client. Alternatively, if the prosecutor proposes a plea that is harsher than the particular policy, defense counsel should emphasize the importance of uniform treatment and argue that harsher treatment would effectively set a precedent for violating the Prosecutor’s policies in future cases.
Before entering into plea discussions, a defense lawyer might privately arrange for his client to take a polygraph to show that the defendant did not commit the crime or that his involvement in it was substantially less than what is alleged in the indictment. If the results are favorable to the defendant, they are given to the prosecutor.
If the results are inconclusive or indicate that the defendant is prevaricating, they are not revealed. Although the results of polygraphs are inadmissible in evidence, many prosecutors will consider the results of these tests in a variety of cases to either dismiss the charges or permit the defendant to enter a plea to a reduced charge. Sometimes a prosecutor will suggest or require a polygraph as a condition to dismissing charges or considering a particular plea.
There are a number of factors that may motivate the defendant or the prosecutor to enter into a “quick plea” shortly after the defendant is charged (see § 7:03). From the defendant’s perspective, he may be in custody and unable to make bail, or he may possess information that is useful to the prosecution but is getting “stale.”
In addition, the defendant’s plea bargaining leverage may be at its greatest point when he is the first defendant in a multi-defendant indictment to propose turning State’s evidence. Similarly, the prosecutor may be inclined to dispose of the case quickly to preserve limited prosecutorial resources, clear a congested case docket, or to accommodate the victim’s desire for a quick resolution of the case.
For the defendant, the disadvantage of a quick plea is that it may not allow sufficient time for defense counsel to properly investigate the case and obtain information that may be favorable to the defendant.
Thus, as a general rule, quick pleas should be negotiated only in the most simple cases. If the defendant nevertheless insists upon a quick disposition of the case, defense counsel should carefully point out the risks of such an approach and obtain the Defendant written consent to enter the plea in the absence of conducting a complete investigation.
Because the prosecutor almost always possesses superior bargaining power over the defendant, defense counsel is often faced with a take-it-or- leave-it plea offer. When this happens, defense counsel might ignore the offer and treat it as a preliminary proposal, or probe the prosecutor’s underlying reasons for his offer with the hope that further discussion might cause him to modify it. Alternatively, defense counsel might suspend further plea discussions, delay the case, or attempt to obtain further information or evidence.
Prosecutors sometimes threaten to bring additional charges against a defendant or a third person if the defendant refuses to accept a particular plea offer. In addition, prosecutors sometimes threaten to prosecute the defendant as a persistent or habitual offender in order to induce a particular plea. These practices are permissible so long as they are not undertaken for “vindictive” purposes and the prosecutor has a reasonable factual basis for bringing the additional charges or prosecuting the defendant as an habitual offender.
A defense attorney faced with such a threat might choose to ignore it, act as if it was unauthorized or made in the heat of passion, or treat it as a purely hypothetical course of action. Defense counsel will rarely have sufficient bargaining leverage to counter such a threat with a threat of his own. The general strategy should be to refocus the plea discussions on the offense(s) with which the defendant is currently charged and the various factors and circumstances which warrant entering into a mutually beneficial agreement.
H. Michael Steinberg has been a Colorado criminal law specialist attorney for 29 years. For the First 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases. In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations. Please call him at your convenience at 720-220-2277