I recently got a case that was originally handled by someone else. Part of the plea that was priviously offered asked for a affidavit describing the events of that day. The defense attorney submitted an affidavit in compliance that indicated no assault occurred.

I have just reviewed the 911 tape were the crying victum clearly stated she was assaulted. (in fact you can hear her screamming at the begining of the tape). After a little more investigation I belive I have a winnable case, that was more serious than it first appeared.

I am uncomfortable about precedding with the plea, has agreed to by the earlier prosecutor. I also want defense counsel to feal that our office is good on its word in handling pleas. Any Advice?

Explain to the defense attorney that you've re-evaluated the case based on a more thorough listening of the 9-11 tape. Then, explain the insufficiencies of the affidavit. If the defendant wants to plea but swears that he didn't do anything wrong in the affidavit, pull the plea on that basis. I'm not sure how the affidavit was to be used, but if it is disingenuous, explain to defense counsel that the defendant did not keep the bargain, and as such you think a trial is needed.

If he doesn't admit it now, he's not going to admit anything while on probation, and he's going to be an enormous pain the the watoosie to his probation officer.

I've found (in my limited few years of experience) that generally if you explain your reasons to the defense attorney, a reasonable attorney will not have a problem. An unreasonable attorney would have had some sort of problem one way or another, on this case or the next one.

An offer was extended by your office, offer accepted. That is how this works. You state that you cannot tell what the prior prosecutor was thinking? Call that person!! Unless they are dead, you should be able to find the attorney.

As a matter of course, most people will not trust an attorney who tries to pull an offer after it is accepted, unless you can prove that offer was based on some lie, deception, partial reveal of facts, etc....

I agree that is often how it works. But it is interesting to me how there is really a double standard at work. Defendants change their mind all the time, often at the last moment and for any reason. Yet, defense counsel insist that once they have presented the proposed resolution to the client that a deal is a deal. Yet, both parties know that the deal is not complete or enforceable until approved by the court. Furthermore, I see nothing wrong with the State making its offer conditioned on certain assumptions. Obviously, no one benefits if the whole discussion is merely a series of trial balloons. (Pardon the pun) But, I am not sure the whole system breaks down if the prosecution occasionally demands to switch horses in midstream. Is not that really the only way we can see that justice is done? The argument heard is that counsel loses the confidence of his client if he has to return and say "they changed their mind" or that the prosecutor can no longer be trusted. Trusted to do what?

Anyone negotiating contracts knows the importance of getting the signatures on the dotted line regardless of how much effort has been devoted to the process to that point.

In an earlier set of posts about guilty pleas, it was said the prosecutor likes the defendant to begin the negotiations by an acknowledgement of guilt. Almost all my discussions begin with defense counsel simply saying "what's your offer". There is no honest discussion of the strengths and weaknesses of each side's position or the likely testimony. If the prosecutor discovers more information during the process he should be free to adjust his evaluation of the case. The real issue is when does the process end. Of course where the defendant benefits (perhaps unjustly) his attorney demands that the stone has been carved.

I admit that as an appellate specialist, the plea bargain process if largely a mystery to me. But if the plea agreement was predicated on an affidavit from the defendant and the one he gave you is a clear pack of lies that does not match the evidence, then hasn't he already violated the terms of the agreement?

Plus, it seems like the defendant is setting up for a no evidence or actual innocence writ.

Isn't a lawyer that allows a client to plead while protesting innocence under oath guilty of malpractice, ineffective assistance, ethical misconduct and general skullduggery? Isn't a prosecutor that stands by and lets it happen violating their oath to do justice. Does the court not have a legal and ethical duty to reject a plea not volunarily made. Would a truely voluntary plea not raise an issue of perjury? Would the attorney not be a party to that offense, with the court and prosecutor implicated as well?

Sounds like the court needs to weigh in on this one.

Of course my ivory tower may make me dense.

Plea bargains are not a one sided event.

I have a similar circumstance right now. You better believe that the defendant and the defense attorney know that if they don't provide the affidavit snitching out the home owner, I won't dismiss the meth charge and allow the defendant to plea to the cocaine charge and get his ten years.

If the affidavit is inadequate, based on the terms which were clearly described, no plea - trial. Period. It's that simple, that's my agreement.

Same thing with deadlines given to plea. We tell each defendant that they have a month, sometimes two, to accept the bargain offered. After the deadline, it is a very rare case that is offered a plea of any kind.

As a matter of course, most people will not trust an attorney who tries to pull an offer after it is accepted, unless you can prove that offer was based on some lie, deception, partial reveal of facts,

How about not keeping your end of the bargain? (see the description of the affidavit as provided in the original question of this thread)

[This message was edited by Philip D Ray on 12-12-05 at .]

I appriciate the advice on all sides of the issue. I decided to write a nice letter to D counsel and explain my decision to pull the offer.

Bottom line his guy was less than honest, and I can not reward him for that.