CRIMINAL DEFENSE NEGOTIATIONS INVOLVE RISK

Negotiating criminal cases can be like a game of chicken. Variations of the game of chicken include riding one’s bicycle towards the opponent, to see if the bike rider or pedestrian will move out of the way first. Another variation is throwing a knife at the other’s feet, to see who will flinch first.

For all the skill, magic and drama involved in winning a criminal trial, the good criminal defense lawyer does not reach the beginning of a trial without first seeking a non-trial resolution of the case, whether through a dismissal, negotiated plea deal or otherwise.

A common denominator in all good criminal defense case negotiations is to come to negotiations fully ready for trial in the event negotiations fail or the client insists on a trial even when the criminal defense lawyer advises otherwise. I am not going to advise my client to enter a negotiated settlement if I do not think the prosecutor will be able to prove his or her case, and a prosecutor has less incentive to agree to a defense-favorable settlement offer if the prosecutor does not think the defense is up to snuff to do well at trial.

Many of my clients have committed the crime for which they are accused. That does not always mean that the prosecutor has enough evidence to prove the case beyond a reasonable doubt.

Settlement negotiations sometimes go to the point of brinksmanship, where the criminal defense side does not always know whether the prosecutor will make a better settlement offer if the defense will hold out, or whether instead the prosecutor will make a worse offer after any prosecutor guilty plea offer deadline has passed. The best I can do is to provide the client a forecast, and determine how much risk my client is willing to take with settlement negotiations and a trial.

My client’s own life and liberty — not mine — is what is on the line, so my job is to help my client make an informed decision in settlement negotiations, and to advise what to do, but to abide by my client’s decision to go to trial even when I have recommended entering a negotiated settlement instead.

THE CRIMINAL DEFENSE SIDE MUST ALWAYS BE BATTLE READY

Sometimes the best settlement comes when I tell the prosecutor that the case is going to trial, and sometimes even during trial. Sometimes the defendant’s insistence on a trial leads to a permanent dismissal of the case.

My clients need to understand that the law governing negotiating means that when I make a counteroffer to the prosecutor’s settlement offer, that extinguishes the prosecutor’s last offer unless the prosecutor renews it.

The way I look at it, if my client did commit the charged crime, s/he took a risk at being caught by committing the crime, and now needs to take risks in negotiating settlements. The whole process often is like an exhilarating free fall, but a free fall can involve harm in the end. My job includes to work to avoid or minimize that harm.