Part of a criminal case is determining if a plea agreement is the best option. To effectively counsel a client regarding plea negotiations the lawyer needs to first analyze the factual and legal defenses if the case were to proceed to trial. The lawyer should be able to explain how the case would be argued and assess the strengths and weaknesses of the case. This requires the lawyer to be experienced with that specific area of law. The terms of the plea agreement need to be weighed against the risk if the client were to lose at trial. Sometimes the prosecutor offers a plea that is essentially the same as if a client goes to trial and is convicted. If that is the case, and the client does not want to go to trial then a client can ask the Judge to determine the sentence if no charges are being dismissed or by agreement with the prosecutor to allow “open sentencing.” Although it is not true that a sentence after a trial will always be worse than the best plea offer extended by the prosecutor.
The lawyer should look for mitigation to help negotiate the terms of a plea agreement. Mitigation can be information about the client’s background, life goals or early engagement in treatment. It’s important for the lawyer to get to know the client so the lawyer can be a better advocate for the client. Knowing the county or municipal court is important too because each county has different policies, terms and conditions that make a big difference for the client. For example sometimes there are alternative sanctions available rather than a jail sentence that will make a client lose their job/career.
I like to focus on the long term consequences of a plea. A conviction for certain crimes will never be expunged (come off the record or sealed). Knowing the time line for expungment if a conviction can be expunged is an important conversation to have with the lawyer before a plea is entered. Other crimes come with license restrictions or can trigger license suspensions such as habitual offender revocation for a third conviction within a five year period of a traffic crime. Other convictions such as vehicular assault in the fourth degree create an inability to get a hardship for six months after a person is released from jail. Some cases can be resolved through a civil compromise such as misdemeanor hit and run or theft which can result in a dismissal or create leverage in negotiating the remaining charges.
The prosecutor will not give a “good deal” because they like the lawyer, but the lawyer can give reasons to the prosecutor to encourage a specific plea agreement such as making the client likable, sympathetic or worthy of less punishment. The lawyer should present mitigation with investigation reports, witness statements or treatment records. Another strategy depending on the circumstances and the prosecutor is to present legal or factual defenses that or restitution has been or will be paid. And of course, having a lawyer that is known for trying cases doesn’t hurt.