Written by attorney Jonathan Andrew Paul

BE CREATIVE: deliver results for your criminal defense clients when the prosecutor says "NO DEAL"

As a former prosecutor, I was in the middle of 1000's of negotiations with defense attorneys both in New York City and in Michigan. The majority of defense lawyers would just throw out requests without justification; many times if their client had no criminal record, their request would happen by default and procedure. No record? Sure, let's make a deal on most charges.

The challenging cases were the cases where the defendant has a prior criminal record and were not good fits for "dismissal programs". No defense lawyer wants to sheepishly walk over to their client and say "no deal, you need to plead guilty". Sure, a lot of benefit can come from having a lawyer for sentencing (but majority of defense lawyers have no idea how to properly leverage sentencing), but the main reason why someone is hired by a client is to "work something out". When you can't, a client says WHY DID I HIRE YOUR SORRY ASS!

Now, that client in that position has the right to go to a trial, but most of the time, more harm can be done by going to trial in this situation. If you're guilty and the evidence is strong, you're just going to piss off the judge (judge will never and cannot admit this) by setting a trial where you probably should just step-up and take responsibility for your actions. I would never tell a client they have to plead guilty in this situation, but should a client just go to trial on a case where the evidence is strong and they don't have a defense, or is there another way to handle a case like this?

When my client has a criminal history and the prosecutor won't budge or can't budge due to lack of eligibility, it's time to get creative and rely on our proactive approach.

I've written articles and books on being proactive, so I won't touch on it much here, but every one of my clients is working on 4-5 different things during the case to take responsibility from day one, and get themselves heading in the right direction; classes, counseling, community service, proactive testing etc.

Here are three ways this type of case can play out:

  1. No deal - client pleads as charged with no deal in place and moves to sentencing.
  2. No deal - client goes to trial on a strong case, is found guilty, is sentenced after jamming the court up.
  3. No deal - call a timeout, maybe set for a bench trial, have client keep up proactive work for another month

Now deal #3 works because it's a compromise with the prosecutor. You're not setting for a jury trial, hauling in people from the community, forcing a prosecutor to prepare for trial and making the court invest an entire day for a trial that is not going to go in your favor.

By setting it for bench trial, you're asking a prosecutor and judge to sprint down the road vs running a marathon. Maybe you tell the prosecutor that if all the witnesses show, your client will plead guilty, but ask the prosecutor to keep an open mind with your request and there is more good work to be done by the client.

By not kicking down the prosecutor's door on a jury trial that is just silly to set, but still exercising your client's right to a trial, this is a happy medium of sorts. My client continues their proactive work for another month then when you return with the prosecutor, you were that reasonable person who is trying to work with everyone, and there's no running for what happened.

I tell prosecutors on a regular basis, YES my client is super guilty - the client is comfortable with that, because why run from something? There's an opportunity to work on yourself and use this as a learning experience. Once we get over that hurdle of "fighting" guilt vs innocence, we can rely on solid relationships, common sense and merit. And in this scenario, we rely on time and continued progress. Once a guilty client gets over the hump of feeling the need to "defend themselves" we can get to work on great outcomes. Some cases have real defenses and constitutional issues to explore, but the majority of cases do not.

Using this strategy, I have turned "no deal" into "well, your client has done X, Y and Z, and well it seems reasonable, OK, I will agree"

In no part of this scenario did I have to pull my sword - I knew had nothing to fight over in the evidence, but I had common sense, merit and time on my side. I believe all prosecutors have a reasonable side to them, and I rely on my experience as a prosecutor to bring that out of them. My client needs to back up my requests with an impressive track record of proactive accomplishments, but if they do, I have the tools needed to be creative.

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