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Colorado Criminal Law Guide – Taking A Plea Or Going To Trial – The Decision To Plea Bargain Or Not To Plea Bargain

By H. Michael Steinberg Colorado Criminal Defense Lawyer

Colorado Criminal Law Guide – Taking A Plea Or Going To Trial – The Decision To Plea Bargain Or Not To Plea Bargain – Experienced Colorado criminal defense lawyers know that the decision to take a plea bargain or go to trial is one of the most difficult decisions one can make in life.

The decision has many components to it – this article addresses the major – or most important factors of the decision and may give the reader some insight into those components.

The Terror Of The Colorado Criminal Justice System

For most not familiar with Colorado state or Federal criminal prosecutions – an arrest and subsequent prosecution – can be one of the most confusing, terrifying and stressful experiences there is. Some individuals may have had cases in the civil justice system and for them – part of the confusion is how much faster criminal cases proceed compared to their civil counterparts.

Along with the speedy nature of criminal cases – another part of the chaos is that criminal law can be very complicated, hard to understand and it is nearly impossible to know who to trust, what to do, or who to turn to.

It’s About Not Taking The First Plea Bargain Offer

While the criminal process can be a nightmare – the results – jail or prison, loss of a career, loss of family contact, and many other freedoms, are all too real. Decisions made in the throes of this nightmare scenario are often made without fully understanding the long short and long term consequences of those decisions.

For example – many defendant’s arrested and held in custody in Colorado domestic violence “fast track” cases often will jump at the first plea offer made by the prosecutor because of the stress of the moment suffering a permanent conviction for a crime they did not commit and not understanding the collateral consequences of their decision such as a permanent conviction on their record or the loss of the right to bear arms.

Every decision of any import in life must be made with all of the facts. Whether it ultimately proves to be wise to accept a plea bargain or not – the best advice is this – temporarily reject the offer – at least until you have spoken to and – or retained a Colorado criminal defense lawyer.

If a DA or city prosecutor tells you he or she will withdraw the offer if you seek the advice of a lawyer – report that lawyer’s unethical conduct to his supervisor. Again – as with all negotiations – in any context – it is not until you have all of the facts that you are in a position to make certain you are getting the best result.

Is This The Best Offer? Is This Offer In My Best Interests?

The temptation to “make the suffering stop” will be very real. When I hear clients or callers tell me how “nice” the police were or how the DA appeared concerned about them – as an ex-prosecutor I cringe. I quickly and bluntly remind these people that prosecutors and law enforcement – are not “your friends.”

THEIR interests are not YOUR interests.

When the police are nice to you – often – not always – they are trying to obtain a statement to use against your interests to bolster the strength of their case. When a DA tries to convince you it is in your best interest to accept the plea bargain on the DA’s terms or they will “up the charges” or “seek jail” or somehow punish you much more harshly if you don’t accept the deal then and there, you should know that asking for time to retain a lawyer should never endanger the fairness of an offer and that you should not have to make such a critical decision under these inherently coercive circumstances.

Deciding Whether to Plead – Your Options

In the face of a plea bargain offer – you have 3 possible options – you can:

• Accept a plea now – plead guilty now,

•Accept a plea later – plead guilty later, or

• Refuse to plead guilty under any circumstances and go to trial.

The consequences of each option must be thoroughly discussed with your lawyer at every opportunity until you understand your options.

Some thoughts you will have:

Will I get a better deal if I plea bargain closer to the trial date?
If I do that – will the offer be withdrawn – will I lose the opportunity – and if, so when will that happen?
If I am convicted at trial – is there a mandatory minimum or other “enhancer” that would take away the judge’s discretion in how to sentence my case?
Along those same lines – what sentence am I likely to receive if I go to trial?
What are the collateral “impacts” of taking the plea bargain – how will this effect my life? For example am I likely to lose my job ?

Are You “Punished” For Taking A Case To Trial? – The Decision To Reject A Plea Bargain And The So Called “Trial Tax”

It is a well known fact that if a plea bargain is in any way fair and just – a defendant who rejects that offer and goes to trial and is convicted may face a sentence worse and sometimes – much worse – than the plea bargain.

Judges protest that they do not “punish” people for exercising their right to trial. But some judges may, either deliberately ,or subconsciously, increase a defendant’s sentence and end up “punishing” that person for taking a strong case to a jury trial.

Those of us in the system every day – call this a “trial tax” and while everyone in the system knows that the law does not allow for a longer sentence for someone who has exercised their right to trial, we also know there are ways that judge’s impose that “tax.” The way it is couched usually sounds something like this – “a person is not being punished for going to trial – another person in the same shoes is being rewarded for not going to trial.” Not much of a difference from where I stand.

Not only do judges impose the “trial tax” if the accused rejects a plea bargain – DA’s often add charges to the cases of defendants who reject plea deals.

The Impact Of Mandatory Minimum Sentencing Laws

Judge John L. Kane Jr of the U.S. District Court – a plain speaking and well respected federal judge – has said this about mandatory minimum sentencing – “How many times is a mandatory sentence used as a chip in order to coerce a plea? ” Judge Kane believes that prosecutors have become much more powerful than the judges. He is correct, of course.

The widely held belief that juries determine guilt or innocence and judge determines the proper sentence is not true where a case involves mandatory minimum sentences. In these cases – such as in Colorado Crimes of Violence jurors are unaware that they are unwittingly imposing a mandatory sentence by returning verdicts of guilty. Under these draconian sentencing laws – mandatory minimums and other sentencing enhancements, allow prosecutors to dictate the sentence that is ultimately imposed.

What IS A Plea Bargain And What Are The Kinds of Plea Bargains?

At its core – a plea bargain is a contract between the DA and the defense. As with all contracts – there are obligations on both sides – each side gives up something and each side gets something.

The prosecution forfeits it’s right to take the case to verdict and to seek the most punitive consequence under the criminal law or laws violated. In weak cases for example – the DA by “pleaing out a case” – is guaranteed a conviction. Few District Attorneys care as much about a case as the person charged. To most prosecutors one case is just like another and tomorrow’s docket has dozens of new cases and plea bargaining makes sense in all but the most serious cases.

On the other hand – to the accused – the decision to plead guilty means giving up one of the most precious rights accorded by the Constitution – the right to a jury trial. In making the decision to plead guilty the benefit of a plea bargain includes some leniency or favorable treatment in the case.

Sometimes plea bargains – even in the weakest cases – become the only alternative. Judges recognize that because of Colorado’s mandatory sentencing laws in some crimes – the decision to go to trial instead of taking a plea bargain can result in the very real harm of a conviction on more the serious criminal counts – and / or a much more severe sentence.

Relying On “The Bad Advice” Of Your Lawyer – Some Recent United States Supreme Court Decisions Have Changed The Calculation

It is obvious that defendants have the right to rely on the advice of their criminal defense lawyers. But when that advice is negligent – as a result of some recent United States Supreme Court cases, LINK – a defendant may be able to reverse the tragic consequences of accepting that bad or incomplete advice but it is tough to fall within this exception to the finality of plea bargains.

If a defendant can show that they:

would have accepted a plea bargain offer if not for bad legal advice and,
there is a reasonable probability that prosecutors would not have withdrawn the offer before trial, and
that a judge would have accepted the plea bargain –
… then that defendant may be able to “unwind” the jury verdict and reverse the decision to reject that plea bargain offer.

Follow this LINK to the case of Missouri v. Frye for more information about this decision.

The Criminal Defense Lawyer’s Duty To Convey Plea Bargain Offers

Your Colorado criminal defense attorney is required by law to communicate to you all plea offers made in your case. More importantly the final decision to accept or reject that offer is YOUR decision. The decision of whether or not to plead guilty belongs to you – NOT your criminal defense attorney. The law here is clear – you are the one who must live with the decision and only YOU can make that decision after weighing all of your options.

Criminal defense lawyers are charged with the responsibility to offer advice as to why one plea bargain offer or another is the better option – however the final decision remains the defendant’s to make unless a defendant cannot make a choice as a result of because of mental illness or is not competent to stand trial.

A defendant can always instruct his or her lawyer to tell the D.A. “no deal.” Contrary to many calls I receive yearly alleging their lawyers made them take the offer – Colorado criminal lawyers have no power to make a deal without their client’s consent. If the client rejects the offer against their lawyers advice, the lawyer may write a letter to their client outlining the deal in it’s entirety and reviewing the client’s reasoning for rejecting it against the lawyer’s recommendations which are also outlined.

The purpose of this “CYA letter” is to make the situation crystal clear – to explore what’s “at stake” – and to make certain the defendant cannot later claim that the plea offer was never communicated or explained.

A lawyer is considered the defendant’s lawful agent and he or she must either carry out the defendant’s decision or – if the lawyer feels strongly about the defendant’s decision which is contrary to the lawyer’s advice – may withdraw from the case.

It must be said that defendants who “obstinately” refuse a lawyer’s sound advice do so at their own risk. It is always wise – under these circumstances to make certain of the wisdom of that decision by getting a second opinion.

What If My Criminal Defense Lawyer And I Strenuously Disagree? – When A Lawyer Withdraws From A Case

While it is rare – lawyers and defendants may have such strongly opposing views that the criminal defense lawyer may not be able to effectively carry out the defense of the case.

When this happens – the lawyer must seek to withdraw from the case. This can only occur with a judge’s permission and that decision by the trial judge will turn on whether the prosecution of the case would be damaged or the proceedings will be unnecessarily delayed or otherwise seriously impacted.

The Duty To Communicate Plea Bargain Offers Both Ways

Not only is it clear that defendants are entitled to decide whether to offer or accept plea bargains. defense attorneys are ethically required to:

I. Make certain ALL offers are related and explained to their clients and

II. Make certain all counter offers are related and explained to the prosecutor.

It is irrelevant that the defense attorney believes that a defendant’s offer won’t be accepted by the prosecutor or that the prosecutor’s offer is not acceptable to the defendant.

It Is Your Decision And Your Decision Alone To Take A Plea Bargain Offer – Make Your Decision As Unemotionally As Possible

Making this important decision is often a matter of pure numbers. It is critical to make an unemotional decision and to keep your head above ground at this critical time. The consequences of the wrong decision can be lifelong.

Often the decision is all about the numbers.

One example -lies in the Federal Criminal Justice System. There the average sentence in 2012 for federal drug offenders who “took a plea” was five years, four months.

For those taking their case to trial? – the average sentence was 16 years

Some Common Plea Bargain Situations

As noted – making the decision to accept or reject a plea bargain is sometimes all about the numbers.

Your lawyer tells you have a 10 % chance of acquittal – a plea will net a five-year sentence – a guilty verdict after trial means 15 years.

Your lawyer tells you have a 50% chance of an acquittal, is a plea to 15 years a better option than a mandatory 25 years after a loss at trial?

Its all about your tolerance for risk. Factors here are – your age, your ability to suffer a trial, those dependant upon you for financial and emotional support such as your family, your tolerance to incarceration

Less than 1 in 40 felony cases now make it to trial according to recent studies. In the 1970s the ratio was 1 in 12. The vast majority of cases do not go to trial. Only a small percentage of cases are decided by a jury.

Kinds Of Plea Bargain Agreements

Plea Agreements – Charge Bargaining

In charge bargaining the DA – has the authority to let the defendant plead guilty to a less serious crime and / or to totally drop some of the charges in the original case.

Plea Agreements – Sentence Bargaining

In Colorado many of the judicial districts do not permit “sentence bargaining” limiting the DA to charge bargaining. However, where it is allowed – the DA can agree to a specific sentence such as probation – no jail – public service hours – treatment and other conditions. Judge’s must approve the deal – but usually they do since both sides have agreed to it.

Plea Agreements – Combination Bargaining

Many jurisdictions approve a combination of charge and sentencing plea bargains. In this situation – the DA agrees to reduce the charge and also agrees to a stipulated sentence.

The “Blind Plea”

A blind plea means a guilty plea to all of the original charges. There is no plea bargain but there is also no trial. This is a last resort decision when the case against you is very strong but the DA’s plea offer is unreasonably harsh. It is only chosen if there is a strong belief that a particular judge is likely to impose a less severe sentence than what is offered by the DA.

What Does A Plea Bargaining “Negotiation” Look Like

Negotiations – no matter field is involved – are all very similar. Two experienced negotiators – in this case a DA and a Criminal Defense Lawyer – usually begin the process with diverging views of the case. As the case evolves weaknesses of the prosecutor’s case such as missing or improperly obtained evidence, witnesses with poorly developed or internally or externally inconsistent statements – all come to light. At the same time – the defendant becomes more “human” to the prosecutor and the defendant may come to understand the harm they have caused and accept more accountability for their actions and their impact.

The process of negotiating a final plea bargain may take days, weeks, months – and in some of the most serious cases – years. The process takes time and patience here is critically important.

Judge’s CAN Reject A Proposed Plea Agreement – But That Is Rare – There Are Very Few “Do-Overs”

While a trial judge does not have to agree to a plea agreement proposed settlement of a case which includes sentencing “concessions” the judge cannot hamper or otherwise interfere with “charge bargaining” -( the addition or dismissal of criminal charges). But of these two types of plea bargains – all realize that the “sentencing phase” is the key stage in any criminal case.

The reality in the criminal courtrooms of Colorado is prosecutors have the trust of the judges and the defense lawyers that regularly appear in their courtrooms and they will almost always accept the proposed “deal.” While I have witnessed instances of a judge rejecting a deal because of “bad facts” (a very violent or destructive crime or a victim’s objection to the plea deal) this is a very rare occurrence.

How To Make The Hardest Of Decisions – Consulting With Those Who Love You

Making the decision to accept or reject a plea bargain offer should involve long discussions with family and friends. The psychological dynamic of consulting with family and friends often involve the fear of “disappointing” these people by conveying the impression of giving up or “giving in” and admitting guilt. While this is true – these family and friends constitute your support system and may have the kind of objectivity that you lack under the circumstances of your case.

You will be surprised when you find out that they will continue to love and respect you if you decide to take the plea offer… that they are only concerned for your well-being and they giving up the fight at that point may be the right thing to do so that you can reduce your risks – be sentenced – and return home as soon as possible.

Consulting With A Colorado Criminal Defense Lawyer

Having a Colorado criminal defense lawyer on your side – someone very experienced and very familiar with the legal process – the many issues in the case – and the risks and benefits of any one offer – places you in a position to determine whether the offer you are receiving is the last, best, or final offer – or whether the offer is even a good one.

The most important piece of advice there is then is communicate thoroughly with your Colorado criminal defense lawyer.

Why Trust The Advice Of Your Colorado Criminal Defense Lawyer?

A very experienced Colorado criminal defense lawyer has seen and handled thousands of cases such as yours. He or she will understand current prosecution trends, possible criminal sentences under the law and will analyze the evidence against you to determine if the case is “defensible” – meaning are there defenses that can be used to win the case at trial.

A Colorado criminal defense attorney is not emotionally attached to you and has your best interests at heart. They are your champion and they are the only person in a position to help you truly objectively weigh the risks and benefits involved in the decision of whether you should take that plea bargain or not. Draw on your criminal defense attorney’s experience and knowledge. If he or she is local to the case – he or she will know the kind of jury you can expect, know the judges and will be in the best position to predict the verdict that will result from the evidence.

It is easy to be cynical about lawyers – I have heard it all – but my experience has been that the bond formed between a client and a truly ethical lawyer is unbreakable in nearly every case. There are lawyers who communicate well with their clients and there are some who “treat” the client as a surgeon may treat the patient.. My recommendation – bed side manner in this context – where the decision is often life long – is very important.. ASK QUESTIONS- GET ANSWERS.

Why Are They Making This Offer?- Analyzing Your Position

DA’s will plea bargain for multiple reasons. At times it is because their case has issues that may prove problematic at trial and a plea bargain removes the possibility of losing the a case at trial. At other times the decision to plea bargain will turn on how much the case is “worth” in comparison to other cases on their caseload.

An experienced Colorado criminal defense lawyer -(especially an ex-prosecutor) will always counsel patience in the pursuit of getting the best and final offer from the prosecutor. Time is on the side of the defense. As I note above – given time – many prosecutors become more familiar with what I call the “equities and evidence” in the case and the offer may change over time.

No Monday Morning Quarter-Backing

There is no “right” decision in most cases. Often, there is only a choice between two or sometimes three difficult options. There is no certainty – no foresight that will tell you now what a jury would do with the evidence in the case.

The result of a trial depends on so many factors – the evidence – the jury’s composition – the judge – the law – the way any one witness testifies on any given day and much more. Predicting jury verdicts – to all of those in the system – is nearly impossible. In short, juries are unpredictable.

There is not a lawyer who has tried tough cases that does not have a war story about a jury reaching an unexpected decision…. good and bad. Juries can convict in weak prosecution cases and acquit when the evidence is very strong.

Making a good decision in any case will often turn on the faith and trust you place in your experienced Colorado criminal defense lawyer, the sound love and advice of your family and friends, and your own innate ability to weigh your options carefully, logically and unemotionally.