Getting to yes to eliminate a mandatory minimum sentence
Negotiations are best pursued by negotiating on and discussing goals rather than positions, as underlined by Fisher and Ury in Getting to Yes. In criminal defense, I negotiate on a position when telling a prosecutor that my client offers a take-it-or-leave-it deal to plead guilty to an amended charge of drug paraphernalia from an original charge of marijuana possession. I negotiate on a goal when telling the prosecutor that my client is flexible about finding a disposition that avoids a marijuana conviction, telling the prosecutor that a marijuana conviction will deep six my client’s federal student financial aid.
Negotiations are best pursued from a position of strength. Fully, skillfully and fearlessly preparing a case for trial — including investing the necessary funds into expert witnesses, serving subpoenas, and other necessary expenses — is more likely to lead to a settlement than not preparing, and preparing a case to settle makes the case more likely to go to trial.
Recently, I went to a nearby Virginia courthouse where my client’s blood draw in his DWI case yielded a 0.20 blood alcohol content at the state lab, and a close confirmation of the result from the independent lab that I use. In Virginia, when the prosecutor proves beyond a reasonable doubt a blood alcohol content of 0.15-0.20 at the time of testing in a DWI case, the judge must impose a sentence of at least five days in jail, with none of that suspended. (The defendant gets a one-day credit against the five days for his or her arrest date.) My client and I were fully prepared for trial battle. I had already subpoenaed the Department of Forensic Science’s notations and other data on the blood analysis, was armed with the relevant law and field sobriety testing guidelines, had my trial flowchart, and was fully prepared for any sentencing in the event of a conviction.
i did not expect that this particular county’s prosecutor’s office would offer a deal involving no jail. However, that never prevents me from recognizing that old patterns can sometimes be broken to my client’s advantage. In this instance, I sat down with the prosecutor the morning of trial, and learned that the blood technician was present, but was in a state of health that made it better that he not need to go through a trial that day. The prosecutor suggested I make a reasonable settlement offer. He had his necessary witnesses. We were before a judge who was not going to be a pushover on my motion to suppress evidence, and, if he denied my suppression motion, was likely to find guilt of a blood alcohol content over 0.15.
After speaking with my client, I told the prosecutor that my client was willing to plead guilty to an amended charge that listed a blood alcohol content below 0.15, to avoid mandatory jail time. The prosecutor knows I enjoy going to trial, and that he would have his time taken up on a trial with me that morning if my client did not get a settlement that he wanted. The prosecutor agreed to my offer, and my client entered a guilty plea whereby he received a suspended sentence rather than any active jail time, and paid a fine higher than usual for such cases.
Lesson learned: Never say never to convincing prosecutors and judges about things they "never do." The worst outcome is for the prosecutor or judge to say no. Always be fully prepared for trial, so that no "aw sh*t" reaction comes from not being able to settle the case.