Today we will begin a series that a prosecutor friend of mine was kind enough to provide. From the outset, please understand that these rules are simply her ideas on the subject and are not intended to apply globally.
Let's begin with #10:
When a defendant on TV or in a movie settles his criminal case, we hear that he accepted a "plea bargain." However, most jurisdictions don't use the term "bargain." Rather, as practitioners of criminal law, we use "negotiation." Plea negotiation. Why do I point out the difference? Because The term "negotiation" is a more accurate portrayal of what actually occurs in courthouses across Texas everyday - a process where two parties become involved in the negotiation of liberty and justice (for y'all). One side represents the State and the other the defendant, but both parties are equally interested in justice. We "bargain" for a good deal on used cars. We "negotiate" the penalties for crimes.
Now, if we negotiate criminal cases, what is needed to effectively defend your client's rights? Well, negotiation skills, of course. Some have a knack for negotiating while others learn the art of negotiation in law school. There are, however, essential rules to follow when negotiating with Texas prosecutors criminal cases. I've compiled a top ten list of the ones I feel most important. They might, at first glance, seem obvious and elementary. But often, it's the most obvious and elementary things we overlook by becoming accustomed to our own, unique practice of law. Basically, lawyers are naturally inclined to become creatures of habit. Consider making a habit of the following.
10. Do NOT Try to Negotiate a Plea at YOUR Convenience.
On nearly every case, you will get a notice from the court coordinator informing you that your client is set for a PNC (plea negotiation conference). During a PNC you and the prosecution come together to negotiate. It is a predetermined time at a predetermined location where both sides are set to meet and discuss the case in hopes of resolving it without a trial. 1000th District Court at 2:00pm on Jan. 1st, 2100. The prosecutor is scheduled to be there. You are scheduled to be there. It is a special time set aside for your very own personal attention from the prosecutor on the case. Most of the time, the prosecutor, knowing he is set for PNC on the case, will look over the case in advance in preparation for the negotiation. PNC's are for plea negotiations. Pretty simple, right? Not for some defense attorneys. That's why I present the following.
The following are NOT times for plea negotiations:
"Lucky me, I got to the courthouse first thing this morning and got all of my guilty pleas done. I have an extra minute or two. I think I'll swing by the DA's office and talk to the prosecutor on that one case. He's probably there."
"Dang it! I've got trial next week and am in no way ready. This stupid trial is gonna take up all my time and attention the rest of the week. It's Monday and while I've got a second, I'm gonna ring up the prosecutor on cases I have set for PNC in the 1000th District Court on Friday morning and see if we can go ahead and get that out of the way. He's probably got a sec."
"Oops. My PNC was set at 1:30pm and it's now 3:30pm. I bet she's still in court. She has to wait on me anyway. I know the court makes her stay until all attorneys have shown up. Who cares if I'm 2 hours late. She's probably been dealing with other attorneys anyway and won't even notice I'm late. Besides, I hate standing in the stinking PNC line."
Finally, my favorite:
"Woo-hoo! Vegas, baby! Can't wait to get there Wed. night. Oh wait, I've got PNC's Thursday afternoon. Eh, no biggie. I'll just swing by the DA's office tomorrow after lunch and see if the prosecutor has some free time."
Bottom line is this. The prosecutor does NOT have any free time, ever! She has a thousand cases and is working on any twenty of them at one time. If you step back from the situation, you should easily be able to see her response to your random call, tardiness, or unannounced drop-in. It's not a good one - far from it. You have been given an appointment to negotiate the case. Keep it. The prosecutor must keep it. The above examples (and similar variations) will land you straight in the doghouse. Do you see any success negotiating from a doghouse? Don't put yourself in that situation. Make it a habit to negotiate the case at the PNC at the scheduled time.
Disclaimer: There will be those emergency times when you must break this rule. Save it for emergencies! Also, keep in mind this rule does NOT apply to the prosecutor. Obviously, she's not going to just pop into your office to discuss the case. But, if she calls to discuss it, set an appointment and go and see her. She's calling you. Oblige her. There's a reason she wants to see you. It'll pay off for your client (and future clients) in the end.