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Is it required to plead guilty beforehand in order to allow to argue to the judge for criminal charges?

Elkhorn, WI |

My son is charged with several crimes. The public defender wants my son to plead guilty 1st to allow an oral arguement before the judge. My son has multipe disabilties and some are related to why he is tempted to commit crimes. We are told the only other option would be to plead guilty to all crimes and allow the judge to decide commitment in an institution instead. I don't understand why the requirement to plead guilty. The public defender shows no interest in the psychological evaluations that would help the defense. I was asked to get additional written documentation from evaluator but can't get in time. PD doesn't want to reschedule oral arguement. I don't understand this. It doesn't make sense to me. The disabilities are the most important defense my son has and time is running out.

Attorney Answers 3

Posted

Your son's mental disabilities are not a defense in the sense you are using the term. Guilt or innocence depends on the State's ability to prove the elements of the offenses charged, period. An NGI defense is not a defense in that sense of the word, and only comes into play after a finding of factual guilt. At that point, if it can be established that at the time the offenses were committed he either did not know right from wrong, or was otherwise incapable of conforming his conduct to the requirements of law due to mental disease or defect, he could then be found not guilty by reason of said disease or defect, and committed to the mental health system instead of the criminal justice system. This is not a free pass, just a different form of supervision or confinement. If your son is competent to proceed legally, that choice is his, not yours or the lawyer's. There are many valid reasons a person in your son's shoes could choose to be in the criminal justice system over the mental health system. Hiring a private bar lawyer won't change this legal reality.

It sounds to me your son has been offered a plea agreement he wishes to take advantage of, on the recommendation of his lawyer. If he is factually guilty of more offenses than the State wishes him to plead to, his only viable choices may well be as described, unless he wants to go to trial. Once the other charges are dismissed pursuant to the plea agreement, his exposure on those charges is gone, and his lawyer can argue his mental disabilities as mitigating factors at sentencing on the remaining charge.

Your complaint, as I understand it, goes more to the law than the lawyer, and is therefore for the legislature, not the Judge. There is a reason at least half of the State's prison population has mental health problems, AODA issues, or a dual diagnosis.

This answer is provided for general information only. No legal advice can be given without a consult as to the specifics of the case.

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Nicholas C. Zales

Nicholas C. Zales

Posted

I agree with this eloquent answer. However, I also believe in second opinions. If you can get one for free why not try? Of course, Atty. Witt is an excellent private attorney and so I would consider what he says. When it comes to mental health issues, there often is no "right" answer. Going back to your original query, whatever you choose to do don't be pressured into something you don't understand. If a proposal is reasonable it should be easy to understand.

Posted

PDs are under a lot of pressure dealing with a lot of cases. If you can afford it, obtain your own attorney. It will cost some money but may well be worthwhile in the long run. Don't let anyone pressure you or your son into anything without fully explaining the options and why they are suggesting that course of action.

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Asker

Posted

Do we still have time to find another attorney? The oral arguement is set for 1-2-2013.

Nicholas C. Zales

Nicholas C. Zales

Posted

You do but it would be tight. There are a number of ways to approach this. Contact the PD, say you want a private attorney and ask him/her to obtain an adjournment. Another is to appear at the hearing and say you want new counsel. However, the judge may or may not want to freely grant an adjournment. You need to talk to a lawyer who practices criminal law in the area where the case is. I do not practice criminal law and so I do not know how freely your judge would grant an adjournment. You have time but not much. Some criminal defense lawyers often work weekends so that is another option. I suggest you get on this Friday morning starting with the PD assigned to the case. What he/she is suggesting may be a good outcome under the circumstances. But it may not be too. Try atty. John Schiro here: http://bullylawyer.com/ Good luck!

Asker

Posted

If I can't get the adjournment before Wednesday, will it be too late to change attorneys?

Nicholas C. Zales

Nicholas C. Zales

Posted

No, you can change at any time. However, the court may or may not be happy about it. If you have a good reason, and really believe another attorney would help, go to the hearing and say so. If the judge asks why you waited to make the request, just say you did not know what to do and you are doing your best. Good luck.

Posted

The criminal justice system lags behind social science research and cannot cope well with offenders who have disabilities. The Public Defender probably show no interest in the psychological evaluations at the guilt phase because the judge will likely not admit them as evidence until the sentencing phase of the criminal justice process.

This is not intended as legal advice. It is only provided for educational purposes and cannot be relied upon as legal advice. Further no attorney client relationship is or has been formed by answering this question.

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