I have been asked to speak to defense attorneys next month about issues that influence plea bargains. Thinking from the prosecutor's point of view, what sorts of information can a defense attorney bring you that would influence your recommendation on the disposition of a case?

Personally, I like for the defense attorney to begin by acknowledging the guilt of the defendant.

Like you I prefer that a defense lawyer initiate the negotiations with a statement that his client wishes to plead guilty and he is guilty and what can I offer. I rarely, if ever, initiate the process. Some defense lawyers have asked me why I didn't make an offer, and I tell them why - you didn't ask the magic question and I like jury trials.

There are many positive things that a defense lawyer can bring to the table.

If his client is guilty of a lesser included charge but not the one alleged, evidence is nice -affidavits, lab test, etc.

I am always interested in what his client can do for my client, the State of Texas - where is Judge Crater or or the second gunman on the grassy knoll or Jimmy Hoffa or Osama bin Laden for the ride out of it? Pounds of controlled substances? Etc. Testimony in another case? I often asked what he wants to throw on the table besides a plea of guilty in a case I almost certainly can prove.

I am alway interested in being given a hope that I will never hear the client's name again. Defense lawyer, give me some good news! If he is transferring his probation/parole to somewhere north of the Mason-Dixon and east of the Mississippi that is a positive. Does he have a relative to go live with and start over without his bad friends. If there is trouble, I know I can always decide not to extradite and leave on TCIC if that is the best thing for my client. I have options. While "transportation" cannot be ordered - see Texas Constitution and Tx.C.C.P. - all rights can be waived except jury punishment is a capital case (QUERY JOHN: I have drafted an 8th amendment waiver and have waited years for the right case - can a defense lawyer offer flogging, branding, breaking on the wheel, ...etc. The voluntary castration cases don't seem to offer hope, but times change ... )

Sometimes, an offer to plead to additional charges on informations is a plus if he has uncharged offenses extraneous to the charged offense. Throwing a couple of Section 12.44(a), Tx.P.C. convictions for 1 day in jail into the mix can be a force to give fewer years on a 3rd degree or higher offense. If the client gets back in the system with a State Jail, they can be used to enhance. With some 12.44(a) convictions, maybe probation for the main offense is back on the table. If the client commits a new felony, no probation from the jury with a 12.44(a) conviction and they are available for impeachment, etc.

Defense Lawyers should deep think strategies and if your client will sign off on it, then claim the moral high ground - his relatives have raised the money for up front restitution, so you go to the prosecutor and say no $ if no probation - NO, not automatically! I respect and try to help lawyers who come to me and hand me the certified check for the victim and then ask what can I do in return for a guilty plea. Put the client through rehab, bring me the paper work, and then ask what the prosecutor can recommend. Most prosecutors seem to react badly to an attempt to extort a favorable plea bargain out of them although, unfortunately, there may be some prosecutors who have earned that treatment - they take the money or information and then stab you in the back - hopefully a breed on the way to extinction. Sometimes I have to tell the defense to tell the judge they've done the right thing and I'll stipulate to it, but I always try to encourage a defense lawyer to avoid the macho approach ... most prosecutors will react badly and aggressively to such a challenge.

Some obvious things, but maybe it'll get your discussion on this topic started.

Good luck.

P. S. Tell them I have a presentation that I have given to good reviews that can be given the catchy title "Defense Lawyers - How to Appear Competent, even if you are not". It is a serious lecture I have given to groups for CLE credit that is geared to what we as prosecutors need from a defense lawyer when the writ alleging ineffective assistance of counsel is dropped in the box. It is how to protect their license, their reputation and the system.

If I can find it, I will try to mail/fax you a check list for defense lawyers when approaching a prosecutor - you'll like it if you haven't seen it before. I have had it for 20 odd years.

In addition to what Stephen says, I would add that I am always impressed when a crook's employer takes time off to visit me about their man. I'm not sure how germain this is to your question, however, because in thinking back on cases where this made a difference, the employer came to see me on his own without first communicating with the crook's attorney. But if an attorney was to get his crook's employer to come visit me, I'd still be impressed.

Employers have a more business-like, and less emotional view of the defendant than do family members who come to see me about their relative. Most of my crooks are not great workers; they drift in and out of employment, and establish no lasting relationship with their boss. When a man has worked hard for another long enough, and well enough for the boss to come see me, I figure that is worth something.

Recruiting sgts. are under pressure to enlist men, so they have a personal biase in favor of getting the crook into the military (which won't accept them if they have even a deferred adjudication on them). When a recruiting sgt. calls me about a crook, I usually suggest that if the def. is that gung ho to be a soldier, he always has the option of enlisting into the French Foreign Legion. But on one occassion a visit from the crook's recruiting sgt. made all the difference. In that case, the sgt. had known the kid for 2 years--that's how long he'd been coming by his post to talk about the Army. He seemed to really know the kid well, and thought he'd make a good soldier. I dismissed, and never had any regrets.

Another big factor are real efforts to make restitution. If a defendant is working 2 jobs so he can pay off the restitution, that is very impressive to me.

I had a case where the def's atty advised his crook to be honest and tell the cops everything when she called from the S/O after her arrest. She did, and her cooperation was a heavy factor in my plea offer. In fact, I always try to take into consideration the degree of cooperation a crook has given the police (such as giving a statement) when deciding on a plea offer. (However, if I was a defense attorney, I would not give that kind of advise unless I knew and trusted the DA's Office in that jurisdiction. In a large jurisdiction you have no idea which prosecutor will end up with the case, and some may not give a hoot about the def's earlier cooperation.)

Things that help: Pointing out legitimate weaknesses with my case or with my witnesses. A sincere willingness by the defendant to accept responsibility. And as already mentioned, paying a lump sum of restitution up front.

Things that don't help at all: A letter from the defendant's preacher. A letter from the defendant's mother, father, sister, grandma, etc. A letter from an employer in a sex offender case. (Most child molesters are not molesting kids at work, in full view of their employers.) Telling me that the defendant has kids, and trying to make me feel guilty for sending a poor parent to prison. Whining about INS consequences.

I always found that plea bargains worked best when you're dealing with a defense attorney who knows from the get go what the case is worth (often ex-prosecutors). So I guess the best thing they can bring to the table is some experience and empathy with the prosecutor's goal to seek justice.

I like to have more information as follows:
1. Is he/she a long-term, stable employee or an unemployed bum?
2. Are there other witnesses not interviewed by the police who have a different slant on the facts?
3. Is there a counter-offer? I do not want to make an offer and then listen to the whining reasons why it should be less without a counter-offer. I refuse to bid against myself.
4. Citations to cases that reveal any search, arrest, or sufficiency of the evidence problems.
5. The realization by the defense attoreny that mere words spoken by him/her will not provide a reason to deviate from the normal plea recommendation. I want data for my file to justify a deviation.
6. A pre-sentence investigation report prepared by the defense prior to the plea has been helpful in a close case when I am deciding between recommending probation or prison.

[This message was edited by Ken Sparks on 11-04-02 at .]

John,

I faxed the check list I promised. If you need a mailed copy, let me know.

Stephen

I got the list, and it is amusing but true.