Plea Bargaining Issues In Colorado  – Part IV

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 FOUR of a FIVE part series that addresses all aspects of plea bargaining- this part addresses preparing to plea bargain a case.

Obtaining Information To Prepare To Plea Bargain

A Colorado Criminal Defense Lawyer should obtain all information that may be pertinent to the entire plea bargaining process.

(I) what information is relevant to the case;

(2) what information to reveal during the course of plea bargaining;

(3) what information to protect from disclosure;

(4) the underlying interests of the defendant and the prosecutor;

(5) the primary, secondary, and incidental objectives of the accused and the prosecutor;

(6) all possible bargains that might be entered into;

(7) the strongest and the weakest factual and legal leverage points for each side;

(8) the specific offers or proposals that may be made by the defendant and the prosecutor;

and

(9) the tactics each side might employ during the plea bargaining process.

In seeking to obtain this information, consider the following categories and factors:

I. The Strengths and Weakness of the Prosecutor’s Case

• The nature of the charge (i.e., type of offense and whether a misdemeanor or felony).
• The evidence in the case for the prosecution and the defendant.
• The actual guilt or innocence of the defendant.
• The age of the offense.
• Possible defenses and defense motions.
• The defendant’s and victim’s jury appeal.
• The feelings of the victim and the police.
• Public sentiment.
• Any mitigating circumstances about the defendant or his culpability.
• The probable outcome of a trial.
• Possible appealable issues.
• The likelihood additional charges will be brought.

II. The Law Relevant to the Charge and Sentencing, and Consequences of Pleading Guilty

• The legal sufficiency of the charge.
• The existence of lesser included offenses.
• The maximum, minimum, presumptive, or mandatory sentence for the charge.
• The availability of  pretrial diversion, expungement,  probation, or parole.
• The availability of some other noncriminal disposition (e.g., dispute resolution/community service).
• Any collateral consequences of pleading guilty (e.g., loss of license, employment, etc.).
• The defendant’s exposure to civil liability.

III. The Background of the Defendant

• The defendant’s age, family, education, employment history, and financial circumstances.
• The defendant’s health (e.g., any drug/alcohol, psychiatric/physical problems).
• The defendant’s prior criminal record (including prior parole or probation). 

IV. The Defendant’s Interests and Attitudes toward a Plea Bargain 

• The defendant’s needs and fears.
• The defendant’s feelings about remorse, acceptance of responsibility, and rehabilitation.
• The defendant’s ability to hire defense counsel.
• The defendant’s ability to make restitution.
• Any special hardships for the defendant or his family if he is incarcerated.
• The defendant’s willingness and ability to cooperate with the government.
• The defendant’s attitude toward a polygraph.
• Particular personal, family, economic, and social effects of a guilty plea upon the defendant.

V. The Prosecutor’s Interests and Attitudes toward a Plea Bargain

• The prosecutor’s general attitude and style toward plea bargaining.
• The prosecutor’s plea bargaining policies or guidelines.
• The prosecutor’s trial skills.
• Whether the prosecutor will negotiate before or after formal charges are instituted.
• Public sentiment and publicity.
• The prosecutor’s personal ambitions.
• The prosecutor’s resources to try the case and overall case load.
• The attitude of the victim, police, probation officer, and others having input into the bargain.

VI. The Attitude of the Judge

• The judge’s attitude toward sentencing and likelihood of accepting a particular plea.
• The judge’s requirements about allocution.
• The extent to which the plea might be entered before a different judge.
• The relationship of defense counsel and the prosecutor with the judge.
• Sources of Information
• For the defense lawyer, the first and most obvious source of information is the client. The client should be interviewed shortly after the lawyer is retained. This is important not only for pretrial bargaining, but for the immediate purposes of determining the Defendant right to pretrial release or the possibility of obtaining an immediate dismissal of the charges on the basis of insufficient evidence or violations of constitutional rights.
• Examples of the types of information that should be obtained from the client include the following:
• The Defendant’s version of the facts and whether he is in fact innocent.
• The existence of any witnesses to the alleged crime.
• Whether the Defendant’s arrest was based on a warrant issued by the police or the prosecutor.
• The factual circumstances of the arrest and whether there were any witnesses to the arrest.
• Whether the Defendant was advised of his constitutional rights in connection with his arrest.
• Whether the Defendant has been formally booked and charged.
• Whether the Defendant was interrogated, and all circumstances of the interrogation.
• Whether the Defendant made any statements to the police by way of admissions or confessions.
• Whether the Defendant was promised leniency by anyone.
• Whether the police are relying upon information from any witnesses.
• The Defendant age, family, education, employment, and financial circumstances.
• The Defendant physical and mental health (including any drug, alcohol, or psychiatric problems).
• The Defendant’s willingness and ability, if any, to provide cooperation.
• The Defendant’s prior criminal history.
• The Defendant’s needs and/or fears.
• The arresting and/or investigating officers.

The usefulness of interviewing these persons will, of course, depend upon their willingness to divulge information. That willingness will be affected by the stage of the case (e.g., whether it is still under investigation or has been turned over to the prosecutor), the particular policies of the law enforcement and prosecutor’s  office, and the temperament of the particular police officers involved. The Colorado criminal defense lawyer’s overall goal should be to obtain as much information as possible about the evidence in the case and the attitude of the arresting or investigating officers to the case.

Please Call If You Have A Question About Plea Bargaining in Colorado

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