Fake Plea Bargaining

Your case is set for jury trial. The ADA makes a final plea offer (Offer A) to your defense lawyer.Your defense lawyer informs you that the offer was Offer B (Offer B is Offer A plus more fines, jail time, etc) but that he/she had worked the ADA down to Offer A.

I’ll call this practice fake plea bargaining. I heard a story of an an alleged FPB incident. I lack personal knowledge of this event. All would agree this practice would be unethical. For this post let us examine motivation.

Why would a defense lawyer fake plea bargain? Allow me to speculate.

I would guess the primary motivation would be to get the client to take the deal. Rational choice theory tells us that defense lawyers, and defendants look to maximize utility and minimize costs. Trial has costs (time/stress) for lawyers. Also, a plea bargain saves an unprepared lawyer from being exposed.

Second, defense lawyers want to show value. Offer A may suck. But if the client thinks that their attorney helped them narrowly avoid Offer B, and that Offer A will soon disappear, then they are more inclined to not only take offer A, but leave satisfied with their attorney’s work.

Every criminal defense lawyer has tirelessly worked a case that ended with the client accepting a plea offer close to the original offer.

Why? Sometimes our hard work uncovers that our clients have bad cases. Also, many DAs have strict guidelines for plea offers. Defendants may see this process as “I received this initial plea offer, and accepted this final plea offer, and I paid my lawyer $$$ for that?” This in no way justifies misrepresenting plea negotiations to a client. Pressure and disappointing outcomes are part of criminal defense practice. If you can’t handle it, go into probate, don’t fake plea bargain.

jimbo says:

March 25, 2009 at 5:59 pm

What about this alternative, that I (as a prosecutor) have personally experienced.

Defense attorney asks me what the offer is. I tell him/her what my offer is. For the sake of argument, the State’s offer is 36 months prison (which is reasonable under the circumstances). Defense attorney tells me, “No, say your offer is 48 months, but I’ll tell my client I can probably talk the prosecutor down to 36 months.”

I say, “OK, the offer is 48 months.”

Defense attorney speaks with client and he accepts 36 months.

Unethical?

I have had several public defenders tell me that they would prefer for me to inflate the State Offer, knowing that they can “talk me down” to a reasonable offer, so that it appears that the defense attorney has “cut a good deal” that the client should accept.

Is it unethical for me as a prosecutor to play along with this silliness?

The Team says:

December 31, 2009 at 1:30 pm

Mr. Guest,
We just discovered this Post while searching related topics. Thank you for letting lawyers know that it isn’t nice to play with peoples lives. The movie “Cape Fear” ring a bell?

The project’s very first case to tackle involved a Houston area robbery that went to trial in 1984. The defendant was on probation and had 2 yrs. to go when arrested. The victim originally reported within minutes that the gunman had straight blk. hair, no mustache & a blk. .22 or .25 cal. revolver.

Our client’s D.L., the HPD Mugshot & Defendants Description Sheet, clearly shows him with wavy sun streaked brown hair & mustache. Despite there being no charge of possession of firearm while on probation anywhere on the planet, the ADA listed a .38 cal. Rohm as a State’s Exhibits. HPD Property Room has no records of this “Mystery Gun”.

We found Two State’s Exhibits docs. with a total of three number twos. One was typed up and the other was handwritten, dated 7 yrs. apart. Three out of the 5 Motions created including (Motion for Discovery & Inspection) have Order sheets that contain no info. not agreed or denied. Nothing, not even a date stamp.

During lunch recess the defendant’s hired attorney, returned to the holding cell no less than 5 times. He openly discussed the game in the presence of other inmates.

The game continued until he finally told him that his probation had been already revoked & that he should take the 10 yrs. because he was going to prison for the full 5 yrs. of probation, innocent or not.

We second your plea to lawyers to “don’t fake plea bargains” but we also believe that if you take a case and don’t investigate and plea away the innocent, then God have mercy on your soul. You lawyers & ADAs that have done so, can thank the very same God for projects like ours that intervene on the behalf of the innocent, for what they may have in mind most likely isn’t a full pardon. Thank you.