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Plea Bargaining

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When To Go to Trial and When to Take a Deal

Believe it or not, deciding whether to go to trial or whether to take a deal is never an easy question to answer. The decision requires a risk assessment to determine whether going to trial actually makes sense. Many of those newly charged into the criminal justice system have the mistaken belief that the prosecutors offices are too busy to handle their case and in turn plea bargain cases because of so called court congestion. Nothing could be further from the truth! Your attorney earns good deals through preparation and aggressive representation of you, the criminal defendant.

Deals in this business are earned from the reputation of the attorney and his ability to go to trial and win. Those attorneys command the best of the deals. Deals are also earned by proper and thorough investigation and proper follow through by the attorney who may, in turn, end up going to trial because the prosecutor wants you to plead guilty as charged!

To decide whether to go to trial, or whether to explore a possible deal on a case, you first have to know what will happen (how much time you will get) if you go to trial and lose and what will happen (how much time you will get) if you accept a deal. If the percentage difference in the two is not very much, you always go to trial no matter how good or how bad the facts of the case are. This is what we mean when we tell the client we will make a risk analysis in assisting the client in coming to his or her decision as to which of these two options (plea bargain or trial) to select. We know that this sounds like a simple concept but time and again, we find out that an attorney has pleaded their clients guilty to charges that should have been decided by the jury not the prosecutor.

To determine the amount of risk is involved in your case (and therefore to help you decide whether to go to trial or accept a deal), we compare the amount of time you would get if he goes to trial and lose with how much time you will get if he accepts a deal. If there is not a really substantial difference in the amount of time that you, the client will get, the answer then is go to trial, regardless of how good or bad the facts of the case are. The real live scenarios described below illustrate how to decide what goal to set in the handling of your case, that is, whether you should aim for a settlement or a trial.

Drug Offenses

The analysis of whether to go to trial or to accept a deal in any case is difficult. The problem is frequently more dramatic in drug cases, however, because the prosecution may have facts making him or her be able to leverage you into pleading guilty. This can happen because the possible draconian results of a sentence after a jury conviction will make you too scared to go to trial.

Whether the alleged offense is a federal or state offense makes a very substantial difference in the amount of time you may receive if convicted. Look at these examples below and you will understand the need to hire experienced attorneys such as provided by The Crowley Law Firm, PLLC.

Drug offenses in Federal Court: Take for example the situation where the client is charged with the typical federal drug offense - Conspiracy to Distribute a Controlled Substance. Generally in this type of case, the US Attorney has used an informant (snitch) to enter into an agreement with you, the client, (and thus, a conspiracy) to sell, for example, powdered cocaine.

This time, however, it is not local police but the DEA and FBI who set-up the client and then make the arrest after tape recording the conversation. Now it is time to see the real cruelty of the system and the mandatory minimums that may be imposed in the federal system.

Assume that client A agreed via telephone to buy 2 kilos of powder cocaine at $15,000.00 per kilo but refuses to inform against anybody (including himself) as part of the plea bargain process. Client B committed the same offense that client A did (agrees to buy 2-kilos) but agrees to inform the US Attorney as part of the plea bargaining process.

Their possible sentence ranges are described below:

A B
Conspiracy 2 Kilos: 120-months (10-years) 120-months (10-years)
Snitch Credit: ---------- 60-months (5-years)
Minimum sentence 10 years 60-months (5-years)


These are real sentencing options for a federal judge. Now you can see why you need a true fighter working on your side. But the sentencing in state courts is substantially harsh also. Please consider the possible sentencing options below in deciding why you should hire an attorney who will fight for your interests.

Drug Offenses in State Court: Lets say that the client is accused of selling an ounce of cocaine or a pound of marijuana to an undercover agent. Assume also that the sale was within 1000 feet of a school bus stop and within 2000 feet of a grade school and that when arrested, the client also had a handgun in his possession.

In this case, assume the prosecutor charges client A with delivery of a controlled substance and adds both a school zone and bus zone enhancement to the charges. The possible sentence range should convince the person to go to trial because the prosecutor has offered nothing (a frequent occurrence) as he may have as he did in charging client B with only the delivery.

A B
Delivery 15-20 months 15-20 months
Gun enhancement 36 months -------------
Bus zone 24 months -------------
School zone 24 months ------------
Total time served 101 months (8 years) 17 months



Sex Offenses

In Washington as in most states, a person accused of committing a single sex offense against a child under the age of 14 will, if convicted, be sentenced to a very substantial amount of prison time. There are treatment alternatives to the person who commits these offenses and if he admits this prior to trial but those alternatives are almost never available if the client goes to trial an is convicted.

The following is the result assuming person A commits a sex offense against a 12 year old child. On the left side of the column, defendant A accepts a deal but on the right, person B rejects the deal and goes to trial with the possibility that a jury will convict him.

A B
Sentence range 78 months - life 78 months - life
Deal w/treatment option: 6 months jail ---------------
Total jail time served: 6 months 78 months - life

This is the decision problem for the person charged with a sex offense. Factor in the possibility that the client may not have committed the offense and the inherent unfairness of the system is blatantly clear.

That is, if the client committed the offense and admits it, his downside (jail/prison time) is possibly only 6-months on this offense. If he didn't do it and denies it by going to trial, he risks at a minimum 6 years and a maximum of life in prison if convicted!

Now you can see why you need a knowledgeable lawyer to understand and communicate to you the sentencing risks. You can also see why you need a very strong trial lawyer if you decide to fight and go to trial.

The principal to remember is this - there is only one reason to accept a deal. If you substantially benefit by the deal, consider accepting it. If you do not substantially benefit, make sure you have hired a serious criminal trial lawyer such as our firms and fight it out to the end!



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