Negotiations from a position of strength are part of criminal defense, says Fairfax criminal attorney

Negotiations from a position of strength are part of criminal defense, says Fairfax criminal attorney

Negotiations are typically a critical part of criminal defense, always from a position of trial readiness. As a Fairfax criminal attorney, I know that negotiations are not always about seeking a guilty/ no contest/ Alford plea deal versus working to convince the prosecutor to dismiss the case with or without conditions.

Sometimes negotiations are about legal fictions, where perhaps the prosecutor’s allegations, even if true, do not satisfy all elements of the amended criminal count. For instance, in a theft case it is preferable to plead guilty to an amended count of disorderly conduct or trespassing than to get a theft conviction. In marijuana cases, a disorderly conduct or trespassing conviction can be more preferable than a 251 disposition.

Legal fiction pleas are permissible by law and are common

Sometimes some prosecutors will tell me that they do not offer to engage in legal fiction plea negotiations.  I can reply by providing them persuasive judicial authority that Virginia law allows legal fiction plea bargaining, in the form of Fairfax County, Virginia, Circuit Court Judge David Oblon’s well-reasoned opinion in Commonwealth v. Varela Ayala, No. FE-2018-541, 2018 WL 3543416 (Fairfax Cir., July 20, 2018) confirming that legal fiction pleas fully comport with the governing law. That is true, alone, when considering Alford v. North Carolina, which permits a criminal defendant to plead guilty without admitting guilt. Id.

Fairfax criminal lawyer warns about the difficulty enforcing finalized plea deals that the prosecutor withdraws or amends before the judge finds the defendant guilty

Virginia law is very weak about enforcing finalized plea negotiations when the prosecutor reneges on the deal or tries throwing in amendments to a done deal. Of course, prosecutors should feel compelled to honor their finalized plea deals, because otherwise their reputation will be mud with criminal defense lawyers.

The governing Virginia caselaw on enforcing plea deals requires that the defendant suffer significant detriment beyond merely losing the benefit of the bargain, as a result of the prosecutor’s withdrawing or changing the terms of the finalized deal. I very much disagree with Judge Oblon’s written opinion that waiving a preliminary hearing as a condition of a plea deal is not the type of detriment that allows enforcing a plea deal. Commonwealth v. Souphann Mao, No. FE-2018-167, 2018 WL 3309808 (Fairfax Cir., June 26, 2018). A prosecutor once did that to me, even after I left a thoroughly detailed email trail confirming our negotiations. As a result, his reputation is mud with me.

As a Fairfax criminal attorney, I know that I must be trial-ready at every turn. This way, plea negotiations come from a position of strength, and if plea negotiations fall through or if my client changes his or her mind about a plea deal, we remain ever-ready for trial.

Fairfax criminal lawyer Jonathan L. Katz pursues your best defense in every aspect of your criminal case alleging felony, misdemeanor, DUI and drug offenses. To discuss your case with Jon Katz, please call his staff at 703-383-1100 to schedule a confidential consultation.