I want to start this article off by saying that most cases in the State of Michigan and in the federal courts are resolved by plea deals. The truth is most criminal cases do not go to trial. If every case went to trial the criminal justice system would grind to a halt. While some cases should go to trial, the fact is a negotiated plea deal can be in your best interest. Your attorney cannot force you to accept a plea deal. You always maintain your right to go to a trial.
I want to dispel one myth at the very beginning of this article. Some defendants say that “my attorney wanted me to cop a deal” as if this is a bad idea. I also want to say one other thing up front. Do some attorneys want their clients to accept a plea deal so they can close the case? The answer is: Yes. Is it wrong? Again the answer is – yes.
But, because some attorneys lack integrity does not mean that a plea deal is not in your best interest. You have to have trust in the attorney that you hire. The truth is a very good plea deal can save you jail time, reduce charges, avoid a conviction, and save you money in fines/costs and legal fees. The purpose of this article is to explain how a plea deal can be in your best interest.
What is a plea deal?
A plea deal is an agreement that is reached between a defendant’s attorney and the prosecutor. In exchange for a guilty or no contest plea, the prosecutor agrees to dismiss one or more charges, reduce a charge to a less serious offense, or make a recommendation to the judge for a specific sentence.
A. “A BIRD IN THE HAND IS WORTH TWO IN THE BUSH”
A plea deal occurs after a careful risk vs. reward analysis regarding all the facts of the case including an assessment of the probable outcome of a jury trial.
I often use the bird cliche when I discuss plea deals with clients because it really captures the essence of a plea negotiation. This expression means that it is better to keep the advantage of a “sure thing” rather than taking risk of pursuing the uncertain result. “A bird in the hand,” is in your grasp, and you are not going to lose it unless you choose to let it go. On the other hand, if you chase the “two in the bush,” you are not guaranteed that you will get them. You may in fact end up with nothing. Essentially, do not risk making a poor decision especially when the outcome is unknown. So it is with criminal cases.
If I told you that I could negotiate your attempted murder case and reduce the charge to a misdemeanor offense – it would be unwise to risk a trial on the hopes twelve people will find you not guilty. Of course, every case is different and the decisions are based on the evidence. Again, you always have your constitutional right to go to trial, but as a criminal defense attorney I want to explain why plea deals can be good for you. We have done many felony and misdemeanor trials and sometimes there is no choice but to go to trial. For example, if the prosecution wants the defendant to plead guilty as charged to a felony, sometimes, the defendant is in no worse position if he or she went to trial. Specifically, why not go to trial if the prosecution is not offering any deal on a very serious case?
Yes, the system is supposed to be based on the principle that a defendant is innocent until proven guilty. Yes, in our system innocent people will plead guilty to avoid the risk of a serious conviction. That is the truth that not many will talk about.
I have been doing criminal defense work for nearly 15 years. I do not believe the system always works the way it should. The system is unfair. That is why a trial is always involves risk. The outcome largely depends on a good jury and the facts of the case. Guilty people are found not guilty and innocent people are convicted. Our legal system is not perfect.
Consider that prosecutors sometimes overcharge defendants in order to induce a plea. Not all prosecutors do this. In fact, most prosecutors are quite fair. Scholars have noted though, that by overcharging defendants, the prosecutors engage in immoral and corrupt behavior. Even the former ultra-conservative United States Supreme Court Justice Antonin Scalia stated that overcharging is a negative aspect of the plea bargaining process. Specifically, if the prosecutor knows that the defendant actually committed an assault and battery but overcharges the defendant with felonious assault in order to induce a plea deal, the overcharging is blatantly wrong. So, as you can see, the plea process can be complicated and more than just “my attorney wants me to cop a plea.” As defense attorneys we strive to get you out of the legal system quickly. We want to minimize your risk and exposure.
As stated earlier, very few criminal cases actually go to trial. The last time I checked the data, only 3%-5% of the criminal cases actually go to trial. I want to tell you a valuable lesson I learned. While in law school, I had interned at the Michigan Federal Defender’s Office. They are a great group of attorneys. When I started there I kept asking where are all the trials? The chief deputy defender told me that their primary function is as sentencing attorneys because most cases are resolved via plea deal. I was shocked.
The question you might be asking is – why?
A trial is a risky proposition. There is a risk reward analysis. Neither side can predict the outcome. The prosecution may lose and irritate the alleged victim. The prosecution does not want to take a loss. The defendant may lose and be convicted of higher offense and face certain jail time. Because our justice system is not perfect, a jury can find innocent people guilty. This is not supposed to happen. We know this happens because we see stories on the news where innocent people have been let out of prison after DNA evidence reveals he or she did not commit the crime. When you leave your fate to a judge or jury you are taking the risk that they will ignore critical evidence or a weak case and still find you guilty.
I do not want to discourage people from going to a trial. That is not the point of this article. Personally, I like jury trials. That is why I became an attorney. Our office does not shy away from trials like most attorneys do. However, I always tell clients to use caution when he or she demands a trial and nothing else. When I ask them, “what if I can get you the same result without going to trial, what would you think then?” I can tell you 99% of the time the clients want that option. The point is that you should never rush a decision in your legal case.
This is what I tell our clients: “When you go to a doctor’s office for a stomach problem, you do not tell the doctor to immediately cut you open with a surgery. First, you want the doctor to see if other methods can remedy your illness. If you could be treated with medicine and avoid a surgery you would choose that option all of the time. This is because complications can occur if you go to surgery. The longer a surgery goes, the riskier it becomes. That is why doctor’s have you sign release forms.
The legal process is not that different. When you approach a lawyer with a criminal case, he or she should find out if there is some way to solve your legal issues without a trial. Because again, “a bird in hand is worth two in the bush,” or as I stated, the longer you are in surgery (trial) the riskier it becomes.
A good lawyer, like a doctor, can treat your legal issue by doing something other than a trial. Like a surgery, a trial should be a last resort when all else fails. A good lawyer can sometimes resolve your case with motions, evidentiary hearings, preliminary examinations and plea negotiations. Sometimes we can keep a conviction off of your record through a great plea deal. Think about that for a moment. You can get the benefit of winning a trial without the risk that a jury would find you guilty. The reward in this scenario far exceeds the risk of a trial. So, a decision to go trial would not be a wise one. As attorneys we want to manage the risk that you face.
If none of the legal options work you can always exercise your right to a trial. I just want you to know there is process that must be followed in a criminal case. This process serves your best interest. At our office we never rush into a trial but diligently explore all avenues that you may find acceptable. We give you many options to choose from because as I was taught in law school, “if you lose a trial, your client goes to prison and you go to lunch.” What this means is that all risks should be carefully weighed because your client in the only one who must face the consequences. As attorneys we must see the case from the client’s perspective as well as the legal perspective.
A plea deal then, is a resolution reached through compromise between the prosecutor and the defense. It takes the risk and the unknown out of the equation. Yes, we know that you want all of the charges dismissed. We also know that the prosecutor would like a conviction on all the charges. A plea deal is a mutual agreement that avoids the extremes. Essentially, both parties are happy with the outcome. So, you can see a plea deal can work in your best interests because risk can be reduced or even eliminated.
B. THE ART OF THE PLEA DEAL PROCESS
Negotiating a good plea deal is an art. It does take skill and creativity. In our experience, many attorneys do not have good negotiation techniques. In the end, their client loses. Some attorneys are unreasonable. When the other side believes that someone is unreasonable the negotiating process breaks down.
If your attorney can reach a reasonable plea deal, based on fairness and correctness, then you the client will benefit. Entrepreneur magazine lists “5 Steps to Master the Art of Negotiation.” I will adapt these steps to highlight the path to a good plea deal negotiation process:
1. Establish a good relationship with the other side
A good criminal defense negotiator establishes a positive working relationship with the prosecutor. If you have hired an experienced/veteran attorney, he or she has hopefully established an excellent professional relationship with the prosecutor. This does not mean your attorney is working for the prosecutor. Your attorney is working for you. A good relationship helps achieve your goals. You should trust the notion that you do not want an attorney who the prosecutors dislike. How would that do you a good service? When the parties have a good relationship there is a level of trust. This feeling of honesty and integrity lends credibility to the defense attorney’s position. If the defense attorney or prosecutor are being less than open, the process is off to a bad start. When there is mutual respect between the parties, the parties can negotiate in good faith.
2. Do not force your will on the other side. A wise attorney does not try to manipulate the prosecution. Think about this. You know when a person is being honest or manipulative. In a negotiation, the other side knows this as well. If the attorney is trying to be manipulative or dishonest – the prosecutor can sense that fact. Again, the negotiation is off to a bad start.
3. Everyone wins.
Your attorney must understand what the other side wants because there are two sides to a negotiation. If the attorney does not take the other side into consideration then the parties will never reach a mutual understanding. A pure black and white approach to negotiating seldom works. The goal is to have everyone on the same side of the fence. An attorney cannot do so when he or she does not understand the other side. The goal is to reach an agreement where all the parties are happy and can accept the outcome.
4. Be professional.
Your attorney must never adopt an immature stance or resort to being unprofessional. How can you get a good plea deal if your attorney is disliked. If your attorney aggravates the police and prosecutors, guess who pays the price in the end? That is right, you do.
5. Respect the negotiating process.
In a plea deal negotiation, things may not immediately get resolved. If that happens, your attorney should not rush the negotiation process. Cases frequently get adjourned for ongoing plea deal discussions. Cases often get adjourned so the attorney and prosecutor can discuss the case further. Sometimes not saying anything and just listening to the other side can help your position.
There are of course many other philosophies and strategies that come into play during a plea deal negotiation. However, the 5 points are a good things to keep in mind during a plea negotiation. It helps if your attorney has built up a good working relationship with the prosecutors in different counties. It takes years to develop a good reputation as an attorney but only a short time to create a long-lasting bad one. I will use an example.
There was an attorney who, other attorneys would joke, would talk the prosecutor into increasing the charges against his clients. For discussion purposes we will call him “20 year Tony” because, no matter the charge, say misdemeanor, he pushed the prosecutors into arguing for a 20 year life offense. Yes, that is an exaggeration, but that nickname stuck and his reputation as a bad negotiator was real.
At CZARNECKI & TAYLOR we have spent a great deal of time building good relationships with the prosecutors in numerous counties by being honest, upfront, and fair. That is not to say that we do not get into disputes or arguments because, of course, this is an adversarial process. The saying goes, “we are adversaries not enemies.” This means that although we do aggressively fight for our clients at trial and during a plea deal, the fight is done with professionalism and with integrity. Think about this, if your attorney spent all of his time making the prosecutors angry, would you ever expect to get a fair plea deal from the prosecutor? So, as you can see there is more to the plea negotiating process than the myth “my attorney just wants me to take a plea deal.” If your attorney suggests that you accept a plea deal it may be the right thing to do.
At this point I hope I have shown that the myth that attorneys “just” want their clients to accept a plea deal to quickly wrap up a case is blatantly false. Of course, as I have explained sometimes a trial is in your best interest and sometimes a plea deal is as well.
C. What knowledge should your criminal defense attorney possess?
Your attorney’s knowledge is critical, especially during a plea discussion. Your criminal defense lawyer should know, at a minimum, the following:
1. The facts of the case backwards and forwards
2. Your perspective as to what occurred
3. The relevant law
4. The strength and weakness of the prosecutor’s case
5. The strength and weakness of the defense case
Even though knowledge is important, there is more to criminal defense and plea discussions. Your attorney must know how to process and analyze the law and facts based on experience. You want your attorney to be able to make accurate predictions so you can get good solid legal advice. If the defense attorney knows the prosecutor has a weak case, that can help his or her plea negotiating position.
As I stated at the beginning, the “innocent until proven guilty” standard does not always ring true. A trial is often is a contest as to what each side can prove. This is not the way it should be. You want the honest truth so like it or not, our trial system is not about what is true but is instead about what the attorney can prove. For example, If the evidence supports a guilty verdict more than an innocent verdict, then you and your attorney are in a weak position to negotiate. If, on the other hand, the evidence strongly supports the defense theory of the case, you and your attorney can negotiate from a position of strength.
Only an experienced attorney who has done trials and plea deals can properly evaluate the evidence. At our office, we have done many trials, motions, evidentiary hearings, appeals, and negotiated pleas for our clients. The work we have done has provided us with a case from many perspectives. Before your attorney can properly advise you to take a plea deal, your attorney has to assess:
1. the evidence
3. predict witness testimony
4. predict arguments as to the introduction of evidence
5. predict arguments against the introduction of evidence
6. predict the prosecutor’s arguments
7. predict the judge’s rulings
8. determine what evidence is clearly inadmissible
9. determine the strength of the case from each side
10. see any holes in the prosecutor’s case
11. seen any holes in the defense
12. predict what arguments a jury of your peers will accept and reject
13. what evidence helps other evidence
14. what witnesses will show or not show for trial
15. rules of evidence
16. case law
Your criminal defense attorney should also know the audience. This means that your attorney should know the judges, police and prosecutors that he or she will deal with on your behalf. You might ask why does this matter? Well, some individual prosecutors respond differently than others. Just like defense attorneys, some are more difficult to deal with than others. As with any individual, a prosecutor will have his or her own beliefs, strength and weaknesses. The prosecutor may have some discretion to offer an outstanding deal on a case. If the prosecutor does not posses the discretion to negotiate a particular case for some reason, the supervisors will certainly possess that ability. It helps to know what arguments they accept or reject.
Knowing the prosecutor is important but familiarity does not end there. Police officers can also help your attorney negotiate with the prosecutor if they agree with your attorney. We have had police officers agree that the charges against our client should be dismissed or reduced.
Your attorney should also be familiar with the judges. Judges have different personalities. This is important because an experienced attorney will know how the judge tends to rule on particular issues and legal arguments. Your attorney better know what each judge expects and be able to predict how that judge thinks and rules.
Some judges sentence differently than others. Knowledge as to how a judge will rule on legal issues and how he or she will sentence a defendant after a trial is critical and cannot be understated. These factors impact a defendant’s percentage to win at a trial, especially if it is a bench trial, that is, tried before the court and not the jury. You also want to know what happens if you lose a trial. If you win – congratulations. If you lose, you would like to know what a particular judge will do at sentencing. For example, after a trial one judge might give you probation while another judge will send you to prison for the very same offense.
I tell clients while there is no official policy enunciated by the courts, some judges adopt the philosophy of “if you play, you pay.” Is it fair? No. I cannot even begin to argue that it is fair to punish someone more harshly because he or she decided to exercise the constitutional right to a trial. You want honesty from an attorney and I am being as open about the legal process as I can.
TYPES OF PLEAS
1. Guilty Plea. A guilty plea is where a person accepts responsibility for committing a crime. A person can plead “as-charged.” This means the plea will not contain any reduction in charges. There is no plea deal. A person can also plead guilty to a lesser charge in exchange for a dismissal of the original more serious charge. Pursuant to MCR 6.302, the plea must be knowing and voluntary. The person must also establish a factual basis for the crime. Specifically, the defendant must admit facts sufficient to sustain a conviction for that particular offense. If the person cannot make out a factual basis, the judge cannot accept the plea deal.
2. No Contest Plea (“Nolo Contendre”). In a plea of “no contest” the defendant neither admits guilt nor innocence. Instead her or she accepts responsibility for the case. How is this different from a guilty plea? First, a no contest plea prevents the alleged victim from using what you say against you in a civil trial. For example, if you admit to an assault and battery pursuant to a no contest plea, the complainant cannot use that against you in a civil suit for damages from any alleged injuries. Second, unlike a guilty plea you do not have to admit to certain facts or state the facts on the record. Usually, the parties will stipulate to the police report or the warrant request as the the factual basis of the crime charged.
3. Delayed sentencing (MCL 771.1). Under this statute you plead guilty to an offense. You are then “sentenced.” If you complete the terms of the “sentence” the prosecutor will agree to dismiss your case on a review date. This avoids a conviction on your record.
4. HYTA. This is called the Holmes Youthful Trainee Act. This is a great deal. HYTA allows for dismissal of eligible criminal offenses committed by youthful offenders due to immaturity. This statute only applies only to offenders that are age 17 but before age 24. A judge has total discretion to grant HYTA status to a person until the age of 21. If the individual is 21 to 24, the prosecutor must agree to the HYTA status.
HYTA is great because the case file is invisible to the public. You will not have a conviction on your record. An individual seeking HYTA must plead guilty to the offense. At sentencing, however, if the court grants HYTA status, the court does not enter the conviction on the person’s record. This is important because the court and Michigan State Police records become sealed and closed to the public view. The records remain closed unless the person violates probation thereby putting at risk his or her HYTA status.
A person can receive HYTA and still go to jail or even prison. It is called HYTA prison. While this is rare, it does occasionally happen on very serious cases. In the end, there will be no record of the prison stay or conviction. Courts may review the case in 6 months to see if the individual is able to be released early.
A person placed on HYTA must be placed on probation. If the individual violates a term of probation, the HYTA status can be revoked and the offense will be put on the person’s criminal history thereby being open to public view. However, if the person successfully completes the term of probation, the record remains sealed and closed to everyone except the courts and law enforcement. HYTA can be granted for a variety of offenses, but it does not cover all of them
5. “7411” – This is short for MCL 333.7411. This statute allows a person to plea guilty to a possession of a drug offense. If the person complies with the terms of probation, the case will be dismissed. In Michigan a drug offense is reported on the criminal history and the driving record. 7411, if completed successfully, keeps the offense off of both records. This is different from HYTA because while HTYA keeps everything invisible from the public, 7411 will show a dismissal on a criminal background check. In the end, though, there is no conviction on the record.
6. MCL 769.4a. This plea is available, if the prosecutor agrees, for cases involving domestic violence. If the person completes the terms of probation successfully, then the conviction will not be on the person’s record.
7. Negotiated pleas: This is a very broad category. in this category I will place pleas that are creatively reached between the prosecutor and defense attorney.
8. No plea offer/Prosecutor Policy Cases – Deviation requests
Unfortunately, plea offers are not always offered by the prosecutor due to police considerations. For example, in Macomb County, the prosecutor’s office current policy is that no plea offers can be made to a defendant with prior felony conviction. In Macomb County these are called “policy cases.” In addition to a prior felony record, the prosecutor may not make offers on criminal sexual conduct crimes, crimes that have caused injury or death, crimes against children, gun crimes, and crimes against seniors. Even though these cases are usually stamped “policy case” there may be an opportunity to request a plea offer. This process is known as a deviation request. Essentially, we request in writing, that the supervisors deviate from the no plea stance and offer a plea on the case. We present facts, evidence, evaluations, etc. to help argue on our client’s behalf.
THE PROSECUTOR’S ROLE
It must be noted that the prosecutor is not obligated to make a plea offer. However, in most instances they do. I have seen prosecutors refuse to make plea offers only in the most serious of cases. These usually involve murder and criminal sexual conduct. With that said, I have seen pleas offered where a first—degree murder charge is reduced to second-degree murder. In criminal sexual conduct cases, the prosecutor may agree to a plea deal so that the victim does not have to go through a trial and relive the alleged experience. I have negotiated cases involving the most serious of crimes.
Prosecutors can make a plea offer and if it is not accepted the deal can be taken “off the table.” In essence, it is a one time offer. Also, a prosecutor can ask that a person plead guilty as charged and, if he or she does not, the prosecutor can increase the charges if the facts support a legal basis for doing so. Other times, a prosecutor can agree to charge the person with other uncharged acts that could have been included in the original case if a plea is not accepted.
Plea deal can be made at any time. I have had plea deal offered to my client on the day of trial. While pushing a case to trial can be a negotiating technique, it has its risks. Essentially, if the case is pushed to a trial date, you just may have to go through a trial without a plea deal ever being made.
THE JUDGE’S ROLE
While the judge does not participate directly in plea discussions, the judge does still have a role to play. Even if the parties reach an agreement, the judge does not have to accept the plea. In most cases, the judges do accept the plea. They do want to keep their docket moving. Also, In Michigan, the judge can participate by predicting what sentence her or she may impose. This is called a Cobbs agreement. The judge will usually give an idea as to what sentence will be given. If, on the day of sentencing, the judge does not follow the Cobbs agreement, the defendant has the right to withdraw the plea and go to trial.
THE BENEFIT OF AN EXPERIENCED CRIMINAL DEFENSE ATTORNEY AT YOUR SIDE
As you can see from this article, plea negotiations are very complicated. As discussed, a veteran defense attorney will be knowledgable about a great many things. He or she must know the facts, law, judges, police, prosecutors, and the client. The attorney must be ethical, professional, honest and possess integrity. If the plea process fails, he or she must be willing to go to trial and defend the client to the best of his or her ability.
Most of our clients want their cases resolved as quickly as possible. The stress of a case is sometimes too much to handle. The risk of the unknown causes anxiety. Most people want to avoid convictions on their record and avoid jail. We have been very successful in achieving those goals by either trial or plea discussions. Although no attorney can guarantee an outcome of any case, the majority of the time, we have been able to negotiate a plea that avoids serious criminal consequences. At times, we can negotiate a plea deal where the client avoids a criminal conviction. His or her record remains clean.
CZARNECKI & TAYLOR CAN HELP YOU
If you are charged with a felony or misdemeanor we can help you. People who call our office with serious questions often tell us that they are more relaxed after we have explained the legal process and possible outcomes to them. They are often relieved because they know they have someone who is willing to fight for them either with a plea bargain or at trial.
We will fight for you at trial. We will negotiate the best plea deal for you if you do not want to go to trial. You will always be informed so you can make the best decision for your future, with our dedicated assistance.
Anxiety of the unknown no doubt causes a lot of stress to the defendant and his or her family. I cannot give you an absolute guarantee about the outcome of any case. No lawyer can. If you talk to any attorney who says otherwise is not being ethical. You should run away or get that guarantee in writing.
If you want to call us to discuss your case we are more than willing to take the time to talk to you. We will be able to assess your case and tell you what we predict the most likely outcome will be. Our legal opinions are based on our wealth of experience appearing in trials, appeals, and many successful plea deals. We have been in the circuit courts for the counties of Macomb, Oakland, Wayne, St. Clair, Sanilac, and Washtenaw, among others. We have been in all of the district courts for Macomb, Oakland, Wayne and Saint Clair Counties. We know what to expect. We will give you straight and honest answers. If you are charged with a crime in Michigan, you can contact us today.
James E. Czarnecki II (586) 718-2345.
or Genevieve L. Taylor (586) 350-6044
Visit our website: Czarnecki & Taylor PLLC
We offer free consultations.
We take calls and emails on nights, weekends, and even the holidays, so do not ever hesitate to contact us. You will see that we treat people differently than most attorneys. We care about the outcome of all of our cases.