In many criminal cases the best option is to try and work out a deal and cut your losses. The question arises as to how a deal can be reached. Obviously, the person making the request is your lawyer. If you don’t have a lawyer it is best to obtain the services of an experienced criminal lawyer such as attorney Daniel Hilf of Hilf & Hilf PLC. Anything that you say can in and outside of court concerning your case can potentially be used against you. An experienced lawyer is in the best position to negotiate on your behalf.
What steps should the lawyer take in trying to obtain a plea bargain, diversion, or sentence agreement?
First, the lawyer needs to learn everything about the case through investigation. Before any attempt to resolve the case takes place the lawyer needs to know what the evidence is and what information the prosecution has. The lawyer can obtain information by making a discovery demand with the prosecution or a FOIA (Freedom Of Information Act) request. Discovery materials typically include the following: the names and addresses of witnesses; written or recorded statements; the curriculum vitae of an expert the prosecution may call at trial along with a report or written description of the expert’s proposed testimony; criminal records that the prosecution intends to use to impeach witnesses; a description of and an opportunity to inspect any tangible physical evidence that the prosecution may introduce at trial; any exculpatory information or evidence; any police report and interrogation records concerning the case; any written or recorded statements of the Defendant, a co-Defendant, and/or an accomplice; any affidavit for search warrant, search warrant, and return pertaining to a search and seizure in connection with the case; and any plea agreement, grant of immunity, or other agreement for testimony in connection with the case.
The lawyer may not want to submit information that the client provided that is contrary to information that is contained in the prosecutor’s file. For example, if the client claims that he or she does not use drugs or alcohol, and the police report indicates that the client was intoxicated on the date of the offense, you may choose not to provide the client’s information to the prosecution. If the prosecution and/or Judge does not feel that the lawyer or client is credible it can influence the result obtained.
Second, the lawyer needs to obtain complete, accurate information from the client. The lawyer will want to find out what about the allegation is true and false in order to fully understand the case.
The lawyer will also want to obtain biographical information about the client, including his or her prior criminal history and immigration related history.
The lawyer will want to obtain current information about the client such as: work history; school history; drug and alcohol issues; mental health issues; medications the client takes; counseling that the client is participating in; recovery program attendance such as AA, NA, rational recovery, gambler’s anonymous; does the client support a family or care for anyone who is a minor, elderly, ill, or disabled; does the client run a business or perform a vital function for the business.
It is often necessary that the client obtains written verification for anything that he or she is doing that is beneficial (pay stubs, school report card, AA attendance sheets, letters from friends/family/employer/doctor, etc.). You should assume that the prosecution or Judge will not trust your client’s word, especially for cases involving dishonesty or substance/alcohol issues.
Third, the lawyer needs to know about any policies or procedures of the prosecution and the Judge which may impact the ability to obtain the reduction sought. Sometimes prosecutors have “policy cases”, which means they are either prevented from of limited in entering into any type of agreement. For example, many prosecutors will not reduce a drinking and driving offense to a non drinking and driving offense. Some Judges will even reject resolutions of cases if they think it is not in the interests of justice. Some Judges have sentencing philosophies in which certain types of cases and offenders are treated in certain ways. Having this information is critical to properly advise the client.
Fourth, the lawyer needs to know what the client will accept in terms of an offer made. Many prosecutors do not want to take the time to negotiate a resolution only to have the Defendant reject it.
The lawyer also needs to know, and convey to the client, the potential results of entering a guilty or no contest plea. Will the conviction affect the client’s immigration status? Will the conviction cause employment or employment licensing issues? Will the conviction cause driver’s license sanctions? What is the potential sentence the client is looking at? Is there sex offender registration requirements?
Sometimes these potential hardships will persuade the prosecution to make a better offer, or cause the client to reconsider resolving the case through a plea. The client needs to make an informed decision considering the possible consequences.
Fifth, the lawyer needs to consider the most effective way in negotiating the case. Is a conversation at Court best? Does the the lawyer need to prepare a letter/memorandum, submitted in advance, detailing the hoped for resolution and the reasons for the same? Does the lawyer need to go to the assistant prosecutor’s supervisor or chief prosecutor to try and negotiate a better resolution? What documents should be provided to the prosecutor or the Judge that will be helpful? What documents should the lawyer choose to not provide?
Sixth, the lawyer needs to consider if the manner in which the case is litigated will affect the ability to obtain a reduction. For example, some prosecutors may be reluctant to make an offer on a case if a preliminary examination is conducted and the alleged victim is required to testify. If there is hostility between the prosecution and defense, sometimes this can affect negotiations in a positive or negative manner. Sometimes the lawyer’s aggressiveness persuades the prosecution that a resolution is better than a battle. Sometimes the lawyer’s aggressiveness makes it easier for the prosecutor to say no to the proposed resolution. The lawyer has to effectively gauge the best approach to use.
Seventh, if there is restitution involved can the client pay the restitution in a short period of time? Sometimes the ability to pay restitution in full, or substantial restitution, goes a long way to persuade the prosecution and Judge to give a favorable result.
Eighth, the lawyer needs to consider what leverage exists to persuade the prosecution to make an offer or the Court to make a sentence agreement. Are there issues with the witness availability or a witness’ willingness to testify? Are there issues Court’s docket or the prosecution’s docket load? Should the lawyer attempt to speed the process along or should the lawyer attempt to delay the case as much as possible?
Ninth, sometimes timing is critical. For example, if the Judge is on vacation or leave and there is a visiting Judge presiding, is the visiting Judge more likely to be lenient? Is the assistant prosecutor easy to deal with, or if the case is delayed a short period will there be a more favorable or less favorable assistant prosecutor at the next court date?
There are sometimes client and case related issues in which timing considerations are important. Sometimes in drinking and driving cases (with prior DUIs) delay is necessary to avoid having 2 convictions in 10 years to avoid revocation of driving privileges. Maybe delay is necessary for a client with immigration issues to allow for other areas of immigration relief? Maybe a delay is needed due to a client’s work related or medical issue? Maybe delay is necessary for the client to come up with the needed restitution?
Are there deadlines imposed by the prosecution or Court as to resolving a case through negotiations? Sometimes if the prosecutor needs to prepare for trial he or she is not willing to make an offer. Some Judges as a policy do not make sentence agreements on the day of trial.
Tenth, sometimes it is necessary to consult with an expert and obtain a persuasive opinion letter. For example, if the client has a immigration issue an opinion letter from an immigration lawyer may be critical to persuade the prosecution on the offer or the Judge’s sentence. If the client has a mental health issue, a letter from a psychologist outlining the best way to address the client’s issue may convince the prosecutor and/or Judge to follow the psychologist’s suggestion.
Again, the best route for you to take when charged with any criminal offense is to hire an experienced lawyer. The experienced lawyer may make all the difference when it comes to the result obtained. For excellent legal representation in Michigan contact attorney Daniel Hilf of the law firm Hilf & Hilf, PLC.