To plea, or not to plea.

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To plea, or not to plea.

What is it?  How can it impact your client? And what do you need to know to successfully implement it?

A few years ago, represented a client who was involved in a horrific car accident. They were charged with Manslaughter in the First Degree, Assault in the Second Degree, Driving Under the Influence of Intoxicants, and other misdemeanors.  The case was a tragedy on every level.  My client was an upstanding citizen, had a lucrative career, a wonderful family, and generously volunteered his time to various organizations. 

The stakes were high. Manslaughter in the First Degree has a mandatory sentence of ten years if convicted.  Assault in Second Degree has a mandatory sentence of seventy months if convicted.  Those crimes can run consecutively which means the time is added together rather than served at the same time (concurrent).  Causation was not in doubt.  My client left his lane of travel and collided with another vehicle.  The driver lost his life and another was badly injured.  There was a high blood alcohol test after several blood draws pursuant to a search warrant. 

Although we knew early on it was likely best to negotiate a plea, it took more than a year for us to come to an agreement with the prosecutor.  In the end, my client saved years in prison.  The agreement came together by coordinating a plan with the victims’ lawyers. It entailed a demonstrated period of treatment and showing we were prepared to go to trial if we couldn’t settle on terms that worked for us. 

To effectively counsel a client facing a criminal charge, a lawyer may consider a plea agreement. (A plea is an agreement between defendant and prosecutor in which the defendant agrees to plead guilty to some or all of the charges against them in exchange for concessions such as leniency or reduced sentencing, from the prosecutors.) A plea can serve as a beneficial outcome for a client, but there are several components that first need to be considered.

What a lawyer should know before entertaining a plea option:

-Be knowledgeable in that specific area of law.

-Have some form of successful trial experience.

-Seek and produce mitigating evidence on behalf of the client. 

-Effectively analyze the factual legal defenses of what would happen if that case were to proceed to trial.

-Analyze the long-term consequences of the plea.


Assessment of the Plea

The lawyer should be able to explain how the case would be argued and assess the strengths and weaknesses of the case. 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. In a scenario in which 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. They can also ask for an agreement with the prosecutor which allows “open sentencing.”  It is important to remember that a sentence after a trial could be better or worse than even the best plea offer extended by the prosecutor.  This is why a determination of the risk must be made before deciding the best way to go forward.


Mitigating Circumstances

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 as well because each county has different policies, terms, and conditions. This can 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.  The potential for alternative sanctions and why a judge or prosecutor should agree to alternatives is important.  It’s easy to ask for alternative sanctions but providing a justification on why the alternative sanctions are appropriate for the specific case gives the best chance of receiving alternative sanctions.


Long Term Consequences

When assessing a case, I like to focus on the long-term consequences of a plea. A conviction for certain crimes will never be expunged, (come off from the record or sealed). Knowing the timeline for expungement if a conviction can be expunged is a very important conversation to have with your lawyer before a plea is entered. Other crimes come with license restrictions or can trigger license suspensions. For example, 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.


Leveraging a Reputation for Great Work

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. Reasons such as making the client likable, sympathetic, or worthy of a lesser 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 to worry the prosecutor that he/she might lose some or all of the charges.  Sometimes showing that that restitution has been, or will be paid can help ease the pressure from a victim.  And of course, having a lawyer that is known for trying cases doesn’t hurt. In essence, giving the prosecutor a reason to agree with a certain plea offer in your specific case can be fast or slow, but the prosecutor will need to be convinced the case deserves special treatment.


The final verdict?

Deciding whether a plea bargain is or is not the right option for you or your client, is a serious matter. You must approach the case with genuine concern, application of expertise, and an understanding that a plea option should only be agreed upon when it secures a superior option for your client over trial. As a trial lawyer with more than 100 jury trials across the State of Oregon, it’s an option we still always weigh with great gravity and attention. Negotiating requires an understanding of the strengths/weaknesses of the case and what a good or great outcome looks like compared to the chance of getting to that outcome. Even with years of experience, there is no hard and fast rule that makes it an easy solution. We give each case unique attention because we truly care about what we do and our client’s future.

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