How Does A Criminal Defense Lawyer Negotiate A Plea Agreement?
The vast majority of criminal cases in Colorado are resolved by a plea agreement. In
federal court 97 percent of defendants enter a plea of guilty and in state court 94
percent of defendants reach a plea deal with the prosecutor. The Defendant agrees to
enter a plea guilty because he or she receives a benefit from the Government in
exchange for that plea.
Why Would A Criminal Defendant Choose To Plead Guilty?
Defendants often plead guilty to crimes that carry much less serious penalties than the
original charge. The prosecutor may agree to make a specific sentencing
recommendation to the court. In cases that involve charges to low level felonies a
defendant is often highly motivated to plead to a misdemeanor charge. A felony is a
serious criminal charge that carries a potential prison sentence. Misdemeanors are far
less serious charges that are handled by the county court. Misdemeanors do not carry
the danger of a prison sentence. A misdemeanor plea may not affect rights of
citizenship such as the right to vote. A misdemeanor plea may also allow a defendant to
continue possessing firearms.
What Does A Criminal Defense Lawyer Have To Do Before Negotiating With The Prosecutor?
In almost all felony cases in Colorado the prosecutor will at some point make a plea
offer to the defendant through his or her lawyer. It is incredibly important that the
criminal defense lawyer understand every aspect of the case before engaging in that
negotiation. The defense lawyer must know the following:
- All the facts of the prosecutor’s case;
- The client’s complete criminal history;
- Whether there are witnesses favorable to the defense that have not been contacted;
- The sentencing practices of the judge who is handling the case;
- The general office policies of the district attorney’s office;
- How the district attorney has handled similar cases;
- The outcome of similar cases in the court that will hear the case;
- Whether the client would qualify for a sentence to probation;
- Whether the client would qualify for a sentence to community corrections;
- Whether the client is facing other charges in other counties.
- The client must make sure he or she is available to discuss all the aspects that go into forming a defense strategy.
The client must make sure he or she is available to discuss all the aspects that go into
forming a defense strategy. A criminal defense lawyer is constantly dealing with an
endless list of deadlines, court appearances, client conferences, jury trial preparations
and jury trials. At times there will be unexpected events that cause cancelations in a
lawyer’s schedule of client meetings. Every defense lawyer has seen his or her
schedule of court appearances torn to pieces by an unexpected court order. However, it
is absolutely crucial that the lawyer and the client work as a team. The lawyer must
make time to know both the case and the client’s history.
How Does The Client Know If He Can Get Probation?
Often a client wants to know from the beginning of the case if there is a danger that he
or she will go to prison. During the first appearance before a judge after being arrested,
a defendant is told directly what the maximum penalty is for the charged offense. That
maximum penalty always involves a range of years in the state penitentiary. Most
people charged with felonies in Colorado are eligible for probation. A person can apply
for probation after being convicted of a felony or pleading guilty to a felony. However, a
convicted felon is not eligible for probation if he or she has two or more prior felony
convictions. Additionally, a person will not be eligible for probation if he is convicted of a
felony that specifically requires a sentence to prison.
How Difficult Is It To Determine If A Defendant Is Eligible For Probation?
Normally, a criminal defense lawyer will be able to advise his or her client as to probation
eligibility at the beginning of the case. The Government is required to provide the defense
with the criminal history of the defendant. However, those reports can be incomplete. It may
also be difficult to determine what convictions actually are for felonies, particularly if the
records contain convictions from states other than Colorado. The Colorado Judicial Branch
maintains a website with extensive information about being on parole in Colorado at Colorado
Judicial Branch – Probation – FAQs (state.co.us)
Communication Between Defense Lawyer And Client Is Crucial In Properly Negotiating A Case
During my career I have representing many individuals who have had very bad
experiences with their previous lawyers. There are two common themes that run
through these stories. First, the defense lawyer didn’t spend enough time to understand
the case. Second, the defense lawyer didn’t properly prepare his or her client for the
sentencing hearing. If the defense lawyer is not working diligently from the beginning to
gain a working knowledge of the case, it is crucial that the client communicate his or her
concerns well in advance of any court appearance.