Friday, February 5, 2010

Rules #9 and #8 for Negotiating with Prosecutors

More from our Texas prosecutor friend.  Picking up where we left off yesterday, here are rules 9 and 8 for defense counsel to remember when negotiating a criminal case with a Texas prosecutor.

#9        Make Sure to Relay the Plea Offer to Your Client.

One of two things will happen when you get your first setting for a plea negotiation conference (PNC): (1) either the prosecutor will relay the offer to you ahead of time or (2) she will have it ready when you show up at the PNC.  (There might be third option where you show up for the PNC and the prosecutor doesn’t have an offer.  Not your fault.  Be courteous and polite if she doesn’t.  Don’t force her into making an offer on the spot!)  

Regardless of when you get the offer, the first thing you do before beginning negotiations is relay it to your client.  It may be an absurd offer for 50 years in the pen - relay it to your client.  It may be very close to being acceptable, needing a simple alteration of this or that – relay it to your client.  You have an obligation to relay any and all offers to your client.  The prosecutor expects that.  Don’t show up ready to negotiate first.

You may have all the information you need for a dismissal or mitigating facts the prosecutor must hear about.  In fact, you know as soon as she hears this information she will immediately lower her offer.  Wait anway.  Go talk to your client.  It’s a great opportunity to look good in front of your client by showing the client how you are going to tell that prosecutor to take that deal and and shove it.  The client will appreciate seeing your gameplan and the prosecutor will appreciate you involving your client in this important aspect of the case.  Discuss the offer with your client and then come back and begin negotiating.  Or, of course, discuss the offer ahead of time if you receive the offer before the PNC (this is ideal because it saves everybody time.)

#8        Come to the PNC Prepared.

Since the PNC is your special one-on-one time with the prosecutor, this one should seem obvious.  However, this rule is often taken for granted.  The average criminal case is going to have multiple PNC settings.  It is inevitable.  Believe me, the prosecutor hates it.  She hates seeing a case for the 6th time.  How did it get to the 6th PNC?  The answer?  Somebody along the way was unprepared.  The prosecutor is not going to care about the time she was unprepared (remember, in her mind she’s busier than you and gets more slack because of that).  She remembers all those times you showed up without relaying the offer first (“Can we just reset it?”) or didn’t have the affidavit you needed (“Can we just reset it?”) or needed to look over some of the evidence (“I need to watch the video. Can we just reset it?”) and so on.

Generally, prosecutors will let the defense slide on the first and maybe second PNC.  She’ll understand you still need time to review discovery, talk to your client, and find mitigating information.  When that second or third PNC rolls around, however, it is time to really negotiate the case.  Be prepared.  Do your homework.  Don’t show up arguing this fact or that point of law on a whim.  Although the prosecutor does have a thousand cases, it doesn’t mean she’s not very familiar with your case.  Don’t take that chance.  You may be the best defense attorney around, with a mastery of criminal law, but he first time you try argue something on the fly, the prosecutor will see your lack of preparation.   What happens?  Usually, you’ll lose ground on your case, as well as credibility with the prosecutor.

Know the facts and areas of law applicable to the case.  Show the prosecution you know what it is you’re arguing and thereby gain credibility in the argument.  I can’t stress how much it will open up the negotiations.  If you’ve found a case that applies to your client’s case, have a copy ready for the prosecutor.  If the indictment can be quashed, bring your copy of the code and show the prosecutor where it’s lacking.  Don’t just throw out, “Well, there’s a case that says law enforcement can’t do this!” or “I don’t think the elements are there for the crime…”  Know exactly what it is you’re going to argue before you approach the negotiating table and be prepared to back up your argument with the specific case or provision in the law.  A little preparation is not too much to ask, and it's what you client expects.