(These news items covered our criminal defense partner Jon Katz's legal analyses of  the Washington sniper trial, the Sami al-Arian trial, the Kobe Bryant trial, drug defense, child pornography defense, and obscenity defense; and Jon Katz's defense of the Plowshares case.)

An often unpleasant part of representing criminal defendants is proceeding with guilty pleas, particularly when the defendant appears to be innocent. Many criminal defendants feel pressure to plead guilty to lesser charges or a recommendation of a particular sentence -- especially in the draconian federal prosecution system that penalizes people for going to trial if they are then found guilty -- when the risks look high of being found guilty, anyway, and being sentenced harshly for a not guilty plea versus a guilty plea.

When a criminal defendant has competent counsel, It is generally wise to plead not guilty when the sentence is unlikely to be more adverse whether the defendant is found guilty through a trial or through a guilty plea. When the criminal defense lawyer recommends a guilty plea to a client, it must be with the intent of reducing harm, and must come from a position of strength, including readiness to proceed to trial. 

Whenever plea negotiations proceed, the defense attorney should simultaneously be preparing for trial. A critical guide to effective negotiations for criminal clients is Fisher and Ury's Getting to Yes: Negotiating Agreement Without Giving In. (Although I first heard author Roger Fisher in 1981 lecture about this negotiating approach, it did not take on sufficient relevance until ten years later when I began representing criminal defendants).  

Vital to effective negotiating is to replace position negotiation with goal negotiation, as follows: "1) separate the people from the problem; 2) focus on interests rather than positions; 3) generate a variety of options before settling on an agreement; and 4) insist that the agreement be based on objective criteria." Tanya Glaser, Book Summary of Getting to Yes. 

Unfortunately, it appears that some line prosecutors are instructed by their superiors to proceed with take-it-or-leave it plea offers, rather than with real negotiations that consider the unique circumstances of the defendant's case. Some prosecutors sometimes get downright unpleasant and nasty in response to reasonable and credible counter-offers from the defense, even when the counter-offers are presented in a polite and professional fashion. Sometimes prosecutors do this to try to intimidate the defendant or defense counsel, sometimes to the point of being nasty in front of the represented defendant, which violates the ethical guidelines against attorneys communicating with opposing parties about the subject of the matter without opposing counsel's consent. I insist that a prosecutor not do a direct-run or end-run around this rule. Once I am out of my client's listening distance, I remind the prosecutor that we are best served by focusing on our goals, agreeing to disagree, and leaving our personalities out of it. 

Sometimes the line prosecutor does not believe s/he has authority to agree to a creative settlement proposal presented by me. In that situation, I ask how I can help move the negotiation along, including finding out the people the prosecutor and/or I might speak with to arrive at a settlement. Sometimes the complaining witness is exasperated with a prosecutor's intransigence or simple delay in moving along negotiations; when that happens, I try to offer the complainant assistance in achieving the overlapping goals of my client and the complainant. Sometimes all that is needed is for me to inform the complainant that the prosecutor might be more likely to be receptive to the complainant's recommendation of my settlement proposal rather than hearing me re-visit the proposal. 

Sometimes nothing will move negotiations further forward other than the ticking clock bringing the case closer to trial. As the trial approaches, one or both parties may better realize that a negotiation impasse does not serve their objectives. Sometimes the impasse never is overcome, which is why the criminal defense lawyer must always be ready to deliver a strong trial performance. 

Nothing beats true calmness in negotiating. When the opponent smells blood, s/he has less reason to help close the negotiation gap. When the negotiator is calm, respectful and effective, the opponent is less concerned about losing face in the negotiating process, and can become better empowered to reach a settlement. 

Following are a few examples of my past successful negotiations by being fully prepared for trial, by being calm, by maintaining credibility, and by focusing on goals rather than positions:

Felony burglary reduced to misdemeanor breaking and entering.

In one instance, my client was being prosecuted for felony burglary. The prosecutor thought my client would be delighted to agree to plead guilty to theft with the prosecutor's recommendation of no executed jail time. I explained that my client might still be a green card holder rather than a United States citizen, because it was unclear if his father's successful application for citizenship included the defendant, and that a theft conviction would jeopardize my client's immigration status. (Beware prosecutors who will rat such information to the immigration authorities; this particular prosecutor was known not to do so). To assist the prosecutor in agreeing to my counterproposal of a plea to simple breaking and entering (my client was not likely to beat a breaking and entering charge, and had a significant risk of a felony burglary conviction), our immigration law partner, Jay Marks, got on the speakerphone with me, and we convinced the prosecutor about my explanation of the immigration exposure. The prosecutor then agreed to my counterproposal, after I underlined my client's goal of minimizing adverse immigration consequences. 

Marijuana possession resolved with stet agreement. 

In another instance, one of my clients was charged in Maryland with possessing 0.9 grams of marijuana, which would have yielded no more than one marijuana cigarette. The prosecutor offered for my client to plead guilty to possessing drug paraphernalia, which would have exposed him to a fine in the first instance. However, through my advance homework, I knew that a pot pipe conviction was likely to lead to jail for a probation violation with the particular judge in a neighboring state just as much as a pot possession conviction. I explained to the prosecutor that I practice in the neighboring state, as well (the prosecutor has no experience in the neighboring state), and that my client's goal was to avoid a probation violation. I explained to the prosecutor that my client was consistently testing negative for drugs for his then-pending prosecution, and, therefore, recommended putting my client's case on the inactive stet docket. The prosecutor told me he would talk with the case's police officers, which was a signal he was about to accept my counter-proposal, which he did. 

Mandatory minimum removed on drunk driving charge.

For my final example, a client was charged with driving while intoxicated in Virginia with a blood alcohol level over 0.20 after having been previously charged with drunk driving in a neighboring county. My client faced a mandatory minimum of ten days in jail if convicted for a blood alcohol level over 0.20. Because his appeal in the neighboring county was pending, fortunately, he did not face any enhanced sentencing from that case. Va. Code Ann. § 18.2-270. 

My client had wisely invested significant funds to hire an expert witness to challenge the reliability of the breath test of my client. In advance of trial, I convinced a judge to issue a subpoena for the breath technician's file (such requests are not always granted in Virginia), got a subpoena issued for the breath technician's testimony (otherwise, the breath test results are deemed admissible into evidence without necessitating the breath technician's testimony), and obtained documentation about the breath testing equipment from the Virginia Department of Forensic Science. On the trial date, the breath technician was nowhere to be seen, nor was his subpoenaed file. The prosecutor asked me if there was anything unusual to need the breath technician's presence, and I told him the following with our expert witness present: (1) the breath testing equipment had previous repair work performed without recertifying the equipment, which rendered the breath test results inadmissible both based on our expected expert witness testimony and also based on governing statutes and regulations governing such testing equipment; (2) it was unusual that the two results of the person tested before my client were identical to the hundredths decimal place to my client's breath tests; and (3) even when such equipment is properly certified, a twenty percent margin of error exists (which is why the two Intoxylizer results of my client and so many arrestees do not match each other). 

The prosecutor likely would not have had a problem obtaining a postponement to have the breath technician re-subpoenaed to court had we not had an expert present, who would have had to be paid for another out-of-state court visit in the event of a trial continuance. I showed the prosecutor how my client had already paid his dues by having served a five-day mandatory minimum jail sentence in the neighboring county for a DWI conviction with over a 0.18 blood alcohol level, Va. Code Ann. § 18.2-270, and how he caused little problem to the police officer. Moreover, the officer was exhausted, having served a midnight policing shift. It did not hurt, either, that the sole courtroom was still bursting at its seams less than one hour from the ordinary lunch hour. 

I explained to the prosecutor that my client's goal was to avoid executed jail time. The prosecutor tried to compromise by offering a five-day executed sentence, without applying the statutory mandatory period, which was significant in that his offer would have kicked in the legal provision allowing my client to serve half of the executed jail time, whereas the statutory minimum would have had to been served day for day. With my client standing firm that he would not enter a plea agreement involving executed jail time, the prosecutor finally offered a settlement involving no executed jail time, but increasing the suspended sentence length. This overlapped the defendant's goal of no executed jail time with the prosecutor's goal not to make it look like he had merely slapped my client on the wrist.

The Getting to Yes negotiation approach works. I would like all my opponents to read this book. (July 31, 2006).

How We Bill/Contact Us:

MONTGOMERY COUNTY

jon[at]katzjustice[dot]com

lawyer best attorney drug attorney drug lawyer drug defense lawyer federal court state court

Who is the best criminal lawyer lawyers attorney attorneys who's

Visit our homepage at www.katzjustice.com.  Copyright 1999-2007 JON KATZ, P.C..