REACHING A GREAT PLEA AGREEMENT
Reputation Arguably the most important thing for any attorney, but especially a criminal defense attorney, is your reputation. The very first thing I learned in law school was to protect your reputation. The very first thing I learned as a lawyer was to protect your reputation. The people who passed that knowledge onto me could…
Criminal defendants tend to be confused about the burden of proof just as much as our jurors, and, honestly, many criminal defense attorneys. If you are charged with a crime in Texas, or anywhere in the United States, it is the government’s (prosecutor’s) to prove your guilt. It is their burden only, and it doesn’t…
Not Guilty in Brazoria County Trials are a rare thing. Not guilty verdicts are an even rare thing. The statistics vary between state and federal court, misdemeanors and felonies, and the type of crimes charged. They obviously vary between counties and between lawyers. The numbers don’t scare me. This year alone, I have tried 5…
ACCEPTING A PLEA DEAL
I need to be frank. I have not written a blog post in a long time. Too long of a time. Most of my blog posts have been about my successes, and while this post is a story about a success, at least according to my client and from an objective viewpoint, it sure feels like a loss. If you were to ask anyone I ever played competitive soccer with, they would tell you that I hate losing. I hate losing with a passion. That might explain why I went to the racquetball court after work yesterday to kick the soccer ball as hard I could while simultaneously expressing my hate for certain people, places, and things.
I had a client referred to me by one of my very close friends from Gideon’s Promise. That friend lives in Mississippi, he could have referred this case to any number of our classmates, so I was very grateful that he trusted me with his friend’s life. My client was charged with assault family violence second offender. Having previously been convicted of aggravated assault with a deadly weapon and assault family violence, my client was facing 2 to 20 in the Texas Department of Criminal Justice – a.k.a. The Texas State Penitentiary – a.k.a. Prison.
The Allegation: Complainant (CW) arrives to baby daddy’s (Client) grandmother’s house to pick up her 15-month year old. CW claims she knocks on the door, thinking Client was not there, yet he brings the child to her car. They then get in a shouting match that turns into client assaulting her. She calls 911 and takes 2 minutes and 40 seconds to tell the 911 operator that she was assaulted. She doesn’t describe the assault. She just describes a theft. She claims that client took her money, her ID, her phone, her car keys, and her baby. I found it so strange that I heard her baby giggling during the 911 call. CW then tells the cop that Client took her phone and she called 911 from a neighbor’s phone – one of the two boys that were playing basketball while this assault supposedly occurred. (I am getting more and more upset as I write this). She claims my client pushed her and dragged her out of the car by her jacket onto the ground then dragged her some more. The next day, she calls a family violence investigator and give another version of the story with different facts. She then gives a recorded statement to another investigator with different facts. She then gives written statement to another officer with even more different facts. This time she claims she was hit in the face.
The Facts: She gave her number as the call back number to 911. She had no marks, no bruises, no bleeding, no redness, no swelling, no stiffness. The State had no proof whatsoever that she was assaulted.
Our Version: As a criminal defense attorney, especially in Houston, I don’t accept the State’s version of the facts – EVER – especially when the complainant is telling multiple different stories. In our version, the complainant walks into client’s grandmother’s house, as she always does, and finds client’s girlfriend holding her baby. CW yanks the baby away and storms outside where she yells at Client – telling him to tell his girlfriend to stop hitting the baby. At this point, client doesn’t give CW $60 for daycare and goes inside his grandmother’s house, so she calls the cops from the boy’s phone – having dropped hers on the ground underneath her car. Client is inside while CW is having an imaginary conversation with client. Cop shows up and sees no proof. Same goes for paternal and maternal grandmothers of the baby.
That is it. Yet in this day and age – a man – especially a man with a criminal history including assault – can be crucified by the mere allegation – no matter how baseless – of a girlfriend, wife, family member, or baby mamma. It is sickening what an accused has to go thru. The pressures on an accused to plea are incomprehensible to someone who has never been there before. I, for example, thought this was as close to a surefire not guilty verdict. I put around 100 hours into preparing for this trial. I had the angles, I had the legal arguments, I had the cross, I had the jury selection questions. I had a “Plan A” incase CW did not show up to testify. I had “Plan B” in case CW did show up to testify. I had “Plan C” incase CW did not show up, but the Harris County Judge made the wrong evidentiary rulings and let in CW’s statements to the police officers.
I don’t enjoy negotiating plea agreements. That is probably why so many of my cases are dismissed on trial day. I have a strong feeling that this case would have been dismissed at we gotten to point where we were actually putting 12 in the box for a felony assault trial. I will admit negotiating can be fun. It can be fun listening to the prosecutor’s puffery – to his air of false confidence – to his attempts to bully you and your client to plea. None of that scares me. I makes my blood pump, but it doesn’t scare me. I don’t like plea negotiations because you have to tread a fine line between disclosing problems with the state’s case and keeping your cards to your chest. I prefer to keep my cards very close to my chest. I did so in this case because I did not think it was likely that my client would plea. I hardly told the prosecutor anything – but it was enough to bring him down from 5 years to time served. I love when they laugh at my answer to a question they ask – that shows their weakness.
In the end, my client was facing 2 to 20 years in prison. The last offer from the state was 5 years TDC. They have this feeling in Harris County, Texas that a defendant should never do less time on a prison trip than his last trip to prison. I ended up working out a plea agreement where my client plead guilty to Class A misdemeanor assault for time served with no fees. Looking at the big picture – this is a great deal that will hopefully allow my client to get a job and remove the uncertainty of showing up to court for who-knows-how-many-weeks-in-a-row for a trial. Personally, it is a huge bummer to work so hard and not get to hear the sweetest two words in the English language – “Not Guilty.” But at the end of the day, I am a “client centered lawyer.” I don’t make plea or trial decisions for my clients because I don’t live their life and I don’t live with the consequences if it doesn’t work out like planned. I assess, I advise, I let you decide. My client is happy, and that’s what matters most.
Until next time, my friends – Here is to Not Guilty Verdicts, Dismissals, and Great Plea Deals!