Defending the Accused in Criminal and Traffic Courts Across Virginia Since 2012

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Plea Bargaining Hurts Innocent People

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I came across an article in the Washington Post about plea bargains. It does an excellent job of explaining why innocent people sometimes accept a plea bargain even though they did nothing wrong. You can read the article at https://www.washingtonpost.com/news/in-theory/wp/2016/01/20/americans-are-bargaining-away-their-innocence/?postshare=7491453676162835&tid=ss_mail. As a defense attorney, I have seen everything they describe happen in real life. It is unfair to defendants.

It is very rare that a case I handle does not have at least one offer for a plea bargain, regardless of whether the case is a traffic infraction, misdemeanor, or felony. Prosecutors tell me what their evidence is. Clients often tell me the police officer is exaggerating, sometimes grossly exaggerating. In a few cases, they get upset and insist the officer has crossed the line of exaggeration and is just plain lying. Witnesses who are not police officers also exaggerate and lie, more so than police officers.

Hearing what the evidence is going to be at trial and what the plea offer is puts a lot of pressure on someone who is already scared. Sometimes, the plea offer is what the judge would do anyway if convicted and can be easily rejected. Sometimes, the plea offer is one that would protect the defendant’s fear of things that could happen to him if he is convicted. For example, an immigrant facing a felony is far more likely to be deported than one who is convicted of the misdemeanor version of that same crime. And, if that offer is no jail on a misdemeanor or risk a felony conviction, many innocent people will take the misdemeanor conviction even if they are innocent.

But, people who plead not guilty and get convicted anyway sometimes get harsher consequences. Virginia sentencing guidelines do not officially penalize a person for pleading not guilty and exercising their right to have a trial. Nevertheless, I have seen judges refuse to place people who plead not guilty into a diversion program because the person is not accepting responsibility for what they did.

In Virginia, juries recommend a defendant’s sentence to the judge if the jury finds the person guilty. Juries are told to sentence within a range of possibilities depending on what the crime is. In some felony cases, the jury is required to recommend YEARS in prison. Judges almost always do exactly what the jury recommends, even if they would have suspended some or all of that time for the person who pled guilty to the same charge and even if it is more than what is recommended by the sentencing guidelines.

Plea bargains, however, are not always a bad thing.   While I do have experience helping people who are not guilty of a crime, I also have experience helping people who did what they are accused of.   We defense lawyers are quick to look for and emphasize any mistakes or misconduct that may happen during a police investigation, but in most cases officers tell the truth, especially as dashboard cameras and body cameras are becoming more common. They also bring evidence like written or verbal statements from the client or the “smoking gun” they need to make the case. When that happens, a plea bargain can be very helpful to a client who wants to keep his job, security clearance, immigration status, or just avoid or minimize jail time. This is a decision that needs to be made on a case by case basis.

Facing criminal charges is not for the weak of heart. I routinely explain to my clients I am happy to go to trial on any case and aggressively defend you against the charge. It is often the only way to make the case go away since prosecutors don’t like to “drop” charges without a good reason. If you’re told a person intends to lie or exaggerate about what happened, you might still be convicted and may or may not face a worse punishment than the plea offer. So, it’s a gamble and the final decision about whether to take that chance is the client’s. Many people are afraid of trial and take the plea offer because it tells them what they can expect to see happen in court and feels safer to them.

 

 

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