Q: I have been charged with criminal battery and I am innocent. I was simply defending myself. My lawyer, a public defender, is telling me a plea bargain being offered by the prosecutor should be given serious consideration. It requires me to plead to a lesser offense and pay a fine, but I don’t see why I should agree, given the fact the other guy was the aggressor. What are your thoughts?
R.W., Carson
Ron SokolA: The choice to continue fighting the case or “make a deal” can be complex and challenging. Plea bargains are frequent in the criminal justice system. Trials typically are described as “crap shoots.” You say you are innocent, and I presume you are, but how will the jurors decide? What evidence is there, who are the witnesses, how will the presentations by each side come across?
You have a public defender, so my guess is you are not paying for your defense. The cost of going to and through trial is one factor in those instances where the defendant is responsible for paying the lawyer and the out-of-pocket costs.
Has the lawyer talked out an Alford plea with you? This comes from a 1970 Supreme Court case, which allows a defendant to maintain his or her innocence while formally pleading guilty. You accept the plea bargain because it is in your best interests (such as to avoid a potentially harsher sentence if you are found guilty). The judge has criteria to consider to assess if such a plea is acceptable.
Other considerations that come into focus as to whether to accept a plea bargain are how you are dealing with the stress of the case, and what impact it has on your family; if you are found guilty, will it affect your employability? Are you in custody? (I presume not at this time.) While the lawyer likely told you he or she cannot predict the outcome, or certainly cannot guarantee the verdict, has the lawyer shared with you that the case is weak, or that the case could, in fact, be proven against you?
Bottom line, after carefully weighing the pros and cons, the decision is yours to make. Listen carefully to your attorney, assess what is discussed with you, talk things out, ask your questions and if you feel it could help, then reach out to others who you trust or who you feel will be straight with you.
All I can finally say here is that I hope you make a decision that winds up being the best choice. It is certainly understandable to refuse a plea bargain, if you feel very strongly you can establish that you are not guilty; by the same token, if the “deal” is such you get your life back with modest impact only, it might be a sensible bargain.
Q: We are three months to trial. Our civil case is strong, but it has some pockmarks. The monetary offer by the defendants is OK, but not anything to write home about. At mediation, which we attended recently, the mediator told us several times why settlement would be really smart, and we should resolve the matter. Isn’t settlement a kind of surrender?
S.A., Lancaster
A: To a degree, the comments made with regard to the above question about a plea bargain have applicability here. Once again, trial outcome is difficult to impossible to predict.
Hence, some say “a bird in the hand is worth two in the bush.” Is the settlement proposal to you further negotiable? You mention your case has some pockmarks — how much impact will they have on what you may recover at trial?
It is possible as you get even closer to trial, the other side might up the ante, but I have also seen the opposite, a kind of “hard ball” where they then offer less.
If you go to trial and do not fare well — compared to what you could obtain today — what impact will that have? Will you owe money to any third parties (such as health care professionals), but have limited funds to pay? Are you at any risk of being hit with some costs?
Most civil cases settle. One factor is that settlement is certain — this is what you are going to get. Trial is “could be this, could be that, can’t predict.” Are you sufficiently gung ho about your chances that taking the risk of going to trial is prudent?
The decision is yours to make, but it is not enough to simply say “trust your instincts.” Has your lawyer told you about the judge who is presiding over your case? Is he or she considered fair, or a problem for you? Are witnesses you are counting on actually going to testify, going to show up? If you prevail, and do very well, will you be able to collect compared to receiving a certain sum now if you resolve the case?
You have time still to make a sound decision. I find letting things “stew” a bit can be helpful. You can process the situation better, gain a perspective that can be helpful, if you take time to make your decision.
Ron Sokol has been a practicing attorney for more than 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.
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