Plea dealing needs to reveal no sweat nor blood to the prosecution, says Fairfax criminal lawyer

Plea dealing (PD) by your Virginia criminal defense attorney needs to reveal no sweat nor blood by you nor your lawyer. As a Fairfax criminal lawyer, I know that many defendants endure sleep deprivation with worry about their cases, (for which I have suggested remedies (which involves self help and knowing your lawyer is doing a great job for you)) but that the ideal is for the assistant commonwealth’s attorney / Virginia prosecutor in your case not to smell blood nor sense sweat in either you nor your attorney. This article follows up on my recent blogpost that PDs are overrated, by addressing important approaches to PDs, because a criminal defense lawyer owes their client informed decisionmaking for proceeding to trial or settling their prosecution, and excellence in settlement negotiations.

Why might my Virginia prosecutor not be eager to agree to favorable plea dealing (or any PD at all)?

What motivates a Virginia prosecutor to engage in plea dealing? For a felony case, PD enables the prosecutor to save their time and that of their witnesses, seeing that felony PD often takes place before the trial date, whereas misdemeanor PD for most of my cases in Fairfax court and elsewhere in Northern Virginia either start on the trial date or involve settlement offers left open through the trial date. For a misdemeanor case in General District Court or Juvenile and Domestic Relations District Court, the prosecutor might sometimes reason that if their essential witness(es) are present, that it might make little difference in time saving between going to trial and going back and forth for settlement negotiations. Sometimes prosecutors want the trial experience of refusing to engage in favorable PD, if at all. Common refrains I hear from many prosecutors on the Virginia District Court trial date include: “Why don’t we just put up the trial”, “I will seek a postponement because I am missing a witness”, “If you don’t accept my plea offer, I will nolle and direct indict”, “If I am denied a continuance, I will nolle and direct indict”, and in Fairfax “This is the first DWI trial date, so the judge will grant me a postponement due to my non-present witness”. Also, Virginia state law does not require funding prosecutors to handle misdemeanor prosecutions, which means a Virginia criminal defense lawyer should consider how much the prosecutor is invested in spending time and support staff resources in the prosecution. In counties in Northern Virginia and beyond, the county and local governments are providing funding for prosecutors to handle misdemeanor cases. Prosecutors know I come to court trial ready, which backs up my response about PD with “I can save the time of you, your prosecution office, and the police if we can settle this case today.” Furthermore, some of my most favorable settlements take place only after I proclaim “ready for trial” to the judge, and sometimes even in the middle of trial, when the prosecutor finally realizes that their case is not as strong as they had anticipated.

How can my Virginia criminal defense lawyer create discomfort in the prosecutor to convince them to engage in beneficial plea dealing?

As a Fairfax criminal lawyer, I do not use discomfort as a primary goal for beneficial plea dealing for my clients, but that discomfort may make the prosecutor think more carefully about the strengths and weaknesses of both sides cases for settlement negotiations, and think twice about how much time, human resources and witness schedules they wish to invest in a trial versus a PD. Know that aggressive, harsh and even heartless-sounding PD approaches by your prosecutor does not automatically mean the prosecutor is good at trials. For instance, in one of my trial victories, the prosecutor was her usual intransigent self in my effort to get a bawdyplace prosecution negotiated to a result that would not reflect as badly on my client and his career sitution. During my court argument about the absence of reasonable suspicion for police to detain my client on a Terry v. Ohio stop, the assistant commonwealth’s attorney tearfully begged the judge to rule the stop was lawful (the judge ruled in my favor instead). Begging is clearly not good trial lawyering. In a recent instance in another Northern Virginia courthouse, the prosecutor trotted out what he claimed was his office’s policy rarely to amend a Virginia DUI prosecution to a reckless driving plea. I won the trial with a judicial finding of no probable cause to arrest my client, when the prosecutor had little for countering my arguments that the police had unconstitutionally arrested my client, in breach of the Constitution’s Fourth Amendment. In another instance, a prosecutor in still another county declined to amend anything where my client was charged with an alleged second DWI defense within ten years (carrying a mandatory ten days in jail if proven)) with an alleged blood alcohol concentration (BAC) exceeding 0.15 (another ten days mandatory minimum jail if proven, for a total risk of twenty days mandatory minimum in jail). I won that trial where the judge excluded the breath testing results for the breath technician’s failure to inspect my client’s mouth for foreign substances (that might trap alcohol in the mouth, when the testing is supposed to be for deep lung alcohol), where I depicted that failure as amounting to an untruthful attestation clause in the BAC certificate of analysis result sheet, which claimed to have followed Virginia Department of Forensic Science breath testing procedures (which require such a mouth inspection). In the latter trial, I also successfully excluded the result of pre-arrest preliminary breath testing (PBT), where I told the judge the missing elements that are a predicate to offer such a result (only for purposes of making a probable cause to arrest decision), the judge told the prosecutor I had outlined the steps needed for the prosecutor to have sought to introduce the result (which to me sounded like improvident judicial coaching of the prosecutor), and the prosecutor still abandoned seeking to introduce the PBT evidence.

Should I ever underestimate the abilities of the Virginia prosecutor in my case?

Never underestimate the abilities of the prosecutor in your Virginia criminal prosecution. Even a lackluster and mediocre prosecutor can score devastating points against you. That means to obtain the right Virginia criminal defense lawyer for you, and to fully work with your attorney as a united front team, never taking your eyes off the prosecution, the police in your case, nor any other opposing witnesses.

Fairfax criminal lawyer Jonathan Katz approaches your defense against Virginia DUI, felony and misdemeanor prosecution as a proverbial gladiator fight, which can get messy, bloody, and be filled with unfairness. The courtroom is Jon Katz’s playground where his sole goal is to obtain as much justice for his clients as possible. Find out the great defense that Jon can deliver to you through your free in-person strictly confidential initial consultation about your court-pending Virginia prosecution. Jon and his staff will be delighted to schedule your meeting, by your contacting us at 703-383-1100, Info@KatzJustice.com and (text) 571-406-7268.