Let’s Talk About Plea Negotiations

A Plea Negotiation is Not the Same as a Plea Agreement

We need to talk about plea negotiations. It’s not a popular subject on most criminal defense attorney websites where attorneys normally tout the cases they ‘won’ in court . . . it is, however, a reality in every criminal law court across the country.

How real? This: 98% of all federal criminal cases are disposed of via a plea agreement. It’s estimated that about 95% of Washington State criminal matters are also disposed of with some kind of plea agreement. That does not include cases that are dismissed and have no adjudication, that’s estimated at around 24%.

I suspect that the vast majority of those dismissals began with a plea negotiation.

A Real-Life Plea Negotiation

Let’s first look at an actual plea negotiation discussion between an attorney and client.

This is from an upcoming book by a friend of the Knauss Law Firm. The case was a federal matter, the charges were financially related. Tom was a federal defender – basically a public defender in the federal system. The man telling the story was in pre-trail detention.

“Let’s talk about our options,” Tom started. We were sitting in a windowless room off the main visiting area. Tom had come to visit with a thick file, a bunch of notes scribbled over a yellow legal pad, and a workmanlike attitude that fit me fine after months of pure legal haze.

“Let’s,”

“Okay, you haven’t been indicted, so the best deal you’ll ever get is now.”

“Okay.”

“If you want a deal.”

“Okay.”

“This will go better if you do more than say ‘‘okay’ to everything.”

“Sorry,” I exhaled, “let’s start with what are our chances at trial?”

“Decent.”

“Define decent.”

“I can rip [the victims] up one side and down the other, I don’t think any of them are credible once we talk about trying to cash in on the security fund. That’s if they don’t lie to the grand jury and give me more ammo.”

“Okay -”

“We destroy [victim] . . . by the way, he emailed everyone that he had been enlisted by the [authorities] to help investigate you.”

“C’mon, he’s a [jerk] but -”

“I saw the email.”

“[Gosh]”

“Yeah,” he agreed, “and none of the other [victims] are sympathetic.”

“Uh-huh,” I was numb, the room seemed to be tilting, “so what are the odds?”

“Seventy percent chance we get an acquittal.”

“Really?” I perked up.

“Yeah, it’d be higher if [long discussion of some facts].”

“Seventy percent,” I repeated, “that’s, um, enticing.”

“Yes,” he agreed, “but the trial doesn’t happen in a vacuum, there are other considerations before we get there.”

“Such as?”

“Here’s the reality,” he endeavored to educate me. The case would, of course, go in stages up to and, theoretically, through trial. Each stage had its own parameters. It broke down like this:

1. Waive indictment and agree to a plea bargain, one count of ‘mail fraud’, anticipated sentence: 24-36 months, max.

2. Wait for grand jury. Odds of indictment, “Well, if they can indict a ham sandwich, they can certainly indict you.” Look to plead now and the offer is 32-48 months.

3. Head for trial, start the discovery process and gauge how the wind’s blowing, decide to plea before trial starts: 52-70 months.

4. Start trial. Decide before jury instructions to bag it: 70-90 months with an added bonus – the possibility of multiple counts and consecutive sentences, i.e., doubling the time.

5. Lose trial: 92-120 months.

6. Consider this: for every month served a federal inmate receives 4.5 days good time. That means a sentence is reduced by 15%. In addition, inmates are eligible for a halfway house/home confinement 3-6 months before release. The effect: a 36-month sentence equals slightly over 30 reduced to 24-27 with that early release.

This does an excellent job of describing the complexities of plea negotiations from the viewpoint of the defendant. He’s been given all the available information and the possible repercussions through each step. Our friend – he may have a chapter heading for it – compares it to solving a quadratic equation.

He accepted the deal, by the way. Oh, and he was and is an attorney.

How Knauss Law Conducts Plea Negotiations

Yes, Knauss Law lays it out for our clients. It’s important. When they are first brought into the system after an arrest, they have no control over, well, anything. The more we tell them, the more we explain, the more we lay things out, the more we help them gain some control over the situation, more control over their lives.

What is equally important is that we also lay it out for the prosecution during plea negotiations. We’re not there to just listen, we’re there to advocate for our client. To get the best possible result for our client.