Law Office of Tim Powers
95% of all cases end in a plea-bargain. Plea-bargaining is an excellent way to avoid a potential stiff conviction in favor of an agreed upon lighter conviction. For instance, in a drug possession case, a judge may be convinced to dismiss the charges in return for the defendant's successful completion of a rehabilitation program. Some judges and prosecutors are amenable to plea-bargaining, whereas others are not. Plea-bargaining enables the judges to move cases through the legal process, and prosecutors to rack up convictions.
Five things to ponder when considering a plea bargain:
- A judge-approved guilty or no contest plea bargain may result in a criminal conviction. The conviction will show up as a criminal record.
- The defendant may lose rights and privileges as if the defendant were convicted after trial.
- A no contest plea says, "I don't choose to contest the charges".
- A guilty plea serves as an admission of guilt.
- A plea bargain may result in a lighter sentence and completes the matter quickly.
How to plea-bargain a good deal:
- The defense must show responsibility for the crime is minimal.
- The defense must show the impact of the crime elicited little damage.
- The defense must explain mitigating circumstances that led to the crime.
- The defense must establish weaknesses in the prosecutions case, such as lack of evidence or lack of witnesses or factual inconsistencies.
- The defense must establish good character on the part of the defendant. The crime was a departure from normal conduct.
- The prosecution and defense must mutually desire a reasonable settlement.
- The impact on the defendant's family or dependents would be a hardship.
The prosecutor carries the burden of proof. The defendant is innocent until proven guilty. During the trial, the prosecutor must present a case that convinces the judge or jury beyond a reasonable doubt that the defendant is guilty.
The charges filed against the defendant at arraignment may be different from those originally filed by the arresting police officers. The defendant must be certain to understand the charges filed, and to confirm if they are different from what they were at the time of arrest.
It is critical that the attorney and defendant manage the details. Cases are won and lost in the details.
In many cases it is advisable to hire an investigator to design and implement a sound strategy to put the details on the defendant's side.
The appeals process works differently state-by-state. However, in most states, an appeal goes from the Criminal Court to the State Court Of Appeals to the State Supreme Court.
The defendant must manage his attorney. The defendant must make sure he understands what the attorney is doing, and why he is doing it, before it is done. The defendant can't wait until after the attorney presents the defense to inquire as to the course of action.
Misdemeanor cases are usually heard in lower court. Felony cases are usually heard in upper court.
The defendant's attorney has several motions he can utilize through the criminal process.
A motion to dismiss evidence can be filed at the preliminary hearing if the defense attorney believes the evidence is insufficient. The motion to suppress evidence can be filed by the defense attorney when there may be grounds to suppress physical evidence taken from the defendant or statements made by the defendant.
Bail is a method to get the defendant home during the trial proceedings. It is not a period of time to argue the merits of the case. Bail is an amount of money used by the court to ensure the defendant comes back to court when required to do so. There are typically two factors the judge considers before setting bail. Any bail argument by the defense attorney must address both parts:
- Is the defendant a danger to the community?
- What is the likelihood the defendant will flee?
In order to get bail reduced the defense attorney should do the following:
- Demonstrate the potential crime is not one that the defendant would do again
- Demonstrate the defendant is not a danger to the community
- Demonstrate the defendant presents no likelihood to flee. The defense attorney can present this in various ways: – Character references – Community support – Stable employment history – Memberships in religious or civic organizations – Surrendering the defendant's passport – Agree to electronic monitoring
The court can present several bail release options. These may include:
- Cash Bail. The defendant is responsible for paying the entire amount of bail to be released. The defendant will receive his bail back at the completion of all court appearances.
- Release On Own Recognizance. If the judge is convinced the defendant is not a risk, he may release the defendant on his own recognizance.
- Surety Bond. The bail agent guarantees to the court that they are responsible for the bond if the defendant fails to appear.
- Property Bond. The court records a lien on the property of the defendant to secure the bail amount.
If the defendant is involved in a case with co-defendants, the defense attorney for the defendant may chose to make a motion to sever ties from the co-defendants.
The defense attorney can use the preliminary hearing as a strategy session. The standard of proof is lower during the preliminary hearing than the trial. The preliminary hearing is utilized by the judge to ensure there is sufficient evidence to review the case. The preliminary hearing assesses reasonable doubt and the facts of the case.
The pre-trial conference is used to introduce evidence, submit motions, and identify procedural issues, exchange witness lists, and plea bargain. Most cases that do not reach trial are plea-bargained at the pre-trial conference.
An appeal occurs after the court has rendered its decision. The goal of an appeal is to have a higher court review and change the decision of the lower court, or send the case back to re-trial. There are two key types of appeals. One attempts to overturn the court's decision. The second attempts to overturn the courts sentencing decision.
Unlike a plea-bargained settlement, which completes the case prior to trial, a trial introduces risk for both the prosecution and defense. Neither side knows which side will win. Plea-bargaining eliminates the risk for both sides.
Plea-bargaining consists of two types: sentence bargaining and charge bargaining. In exchange for a plea of guilty or no contest by the defendant, the prosecutor may recommend a lighter sentence or may drop charges to a less serious offense.
The trial judge completes the sentencing. The judge will look at the defendants past background, nature of the crime, and other factors in order to weigh a decision. Many courts require the probation department to prepare a full investigation, so that the judge may consider its determinations when sentencing the defendant.
The defendant may ask the court to appoint a public defender at the time of the arraignment. The defendant should be ready to demonstrate financial need. If the defendant does not qualify financially, the court may still appoint an attorney.
The defendant has a constitutional right not to testify.
The timeline for the appeals process varies by state. The defendant should check with an attorney on these timelines.
The vast majority of convictions result from a guilty plea by the defendant.
Motions available to the defense attorney prior to trial consist of excluding evidence, including evidence, dismissing the case, suppressing evidence.
The federal government does not have to honor expungements. Individuals whose cases have been expunged must still disclose the convictions when qualifying for professional licenses or filing to hold public office.
The defendant should ask his defense attorney to thoroughly review a transcript of the entire trial prior to preparing an appeal. In an appeal, no new witnesses and no new evidence will be available. Each party prepares briefs that the judges review prior to rendering a decision.
In some states the defense decides whether a trial will be by judge or jury. The defendant should confer with his attorney about the benefits of each in order to determine what will be in the defendant's best interest.
If the defendant receives a guilty verdict from the jury, the defense attorney can immediately begin a series of post-trial motions in the hope the judge will grant a new trial or make a judgment notwithstanding the verdict and acquit the defendant.
The burden of proving guilt rests at all times on the prosecution.
In discovery, the prosecutor must provide the defendant with information about the defendant's case. The defendant is entitled to receive copies of the arresting officers statements and filed reports and the defendant may review evidence the prosecution might submit at trial.
If you are seeking aggressive criminal representation by an experienced criminal defense attorney for your Denton County criminal case or arrest in Denton County, contact the offices of Tim Powers today. There is no charge or obligation for the initial consultation. 940.580.2899.
*Tim Powers is an attorney licensed to practice law by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any specific legal question you should directly consult an attorney.