Pleading Guilty Is Overrated, Says Fairfax Criminal Lawyer

Pleading guilty must only come from a position of strength and trial readiness, says Fairfax criminal lawyer

Pleading guilty is overrated by too many Virginia criminal defendants and even by at least some criminal defense lawyers. As a Fairfax criminal lawyer, I have heard my share of colleagues express surprise that my client was not accepting the prosecutor's last plea offer (and few of them know such information if they do not hear it from the prosecutor. or from the judge's asking my case's status). As examples, one colleague shook his head at me for not advising my client to accept a plea offer that he seemed to think was Pavlovian to need to accept. In another instance, a colleague urged me to forego my idea of going to trial on such a beautiful Friday afternoon rather than encouraging my client to plead guilty. In both of the latter instances, I won my trial. In all instances, my role is to advise my client well so that my client may make his or her own informed decision about whether to proceed to trial or to enter a plea deal. Consequently, whether it is a beautiful afternoon or a rainy morning is irrelevant to how I advise my client, nor is the scorn of a colleague's improvident headshake at me.

Seeing pleading guilty as a dirty word and trial as a beautiful thing to prepare for like an Olympic athlete, for a lifetime

When I started doing criminal defense many years ago, I looked forward to trials and recognized that I would need to accept that settlement negotiations are a necessary part of criminal defense, including instances of pleading guilty. My strong conviction is not to recommend a guilty plea, no contest plea nor any other settlement to my client without first obtaining the essential discovery and evidence in my Virginia criminal defendant's case, fully analyzing my client's prospects of success and loss at trial and any sentencing, fully considering the impact of a conviction on a client's livelihood or reputation or pre-existing probation status, and fully discussing all essential matters about their case with my client. Praised be one of my great National Criminal Defense College Trial Practice Institute teacher who urged that lawyers were not taking enough cases to trial and confronting the evidence head on, including with drug cases risking mandatory minimum sentencing and rape cases risking worse sentencing (she included among her examples of finding a way to win at trial, to cross examine the alleged rape victim at the pretrial motions stage to draw inconsistencies between the complainant's description of the defendant's genitals and the actual physical properties thereof.)

Should I ask my potential Virginia criminal lawyer what s/he thinks about guilty and no contest pleas and about their ability and eagerness to proceed to trial?

I am a trial lawyer and love going to trial. As a Fairfax criminal lawyer, I know that calling oneself a trial lawyer does not automatically convey their ability, skill, experience and eagerness to defend the accused even in the most adverse and trying situations. I have those battle scars to show for the hundreds of cases I have successfully taken to trial, often with victories that I did not know would be the result. Nobody has a crystal ball about what cases will win or lose, and often the indicators of oncoming victory do not reveal themselves until the trial is underway. A Virginia criminal defendant is either going to address settlement negotiations from a hedge betting standpoint, an idealistic standpoint, or something in between. When a criminal defendant is confident in their lawyer's abilities and devotion to do a great job for them at trial, they will not feel cornered into a pleading guilty and will be better equipped to make an informed decision about whether or not to proceed to trial. (Yes, I think I do excellent work with settlement negotiations as well, but always from a position of strength and trial readiness.)

Settlement negotiations are not an either-or situation, but a continuum, and constant work to improve the negotiation

One day in a Fairfax satellite courthouse -- which meant the prosecutor was not going to change on the subsequent court date -- the prosecutor agreed to continuing my trial date (in accordance with the Fairfax General District Court written procedures that generally enable either side to continue the first DUI trial date), but assured to me that her plea offer for a standard first-time DWI plea with a dismissal of the refusal count was not going to change. As in many situations, the plea offer did get better. Here, I showed up on the next trial date, where the arresting police officer was very interested in chatting with me and learning about my criminal defense law practice. Not many minutes passed before the officer himself expressed to the prosecutor his comfort with proceeding with a wet reckless disposition. Granted, police do not call the shots with settlement negotiations nor with pleading guilty or no contest for the deal a defendant wants, but they typically consider what the police officer has to say, the officer's having spent substantial time with the defendant, and the prosecutor's having at most (when the defendant has a lawyer) seen the defendant through their incident video.

Settlement negotiations can improve on the heels of trial and even during trial

When a Virginia assistant commonwealth's attorney / prosecutor recognizes that the case is going to go to trial and not pleading guilty, the prosecutor may take a closer look at the case than otherwise and recognize that their case is weaker than they had thought, that they are missing an important or even essential witness or piece of evidence, or that the judge or jury are not likely to be favorable to their case. Time and time again I have obtained improved settlement negotiations after insisting the case was going to trial or even during trial.

Better resolutions than pleading guilty and no contest exist in Virginia law

The Virginia criminal lawyer or defendant seeking to be pleading guilty or no contest should assure that they are not overlooking the better resolutions of pursuing an immediate or eventual dismissal of the prosecution, for instance through restorative justice mediation, thorugh the Virginia Code § 19.2-151 satisfaction and discharge / accord and satisfaction statute, and through the Va. Cod  § 19.2-298.02 deferred disposition statute. Negotiating from the parties' goals rather than from dug-in positions enables each side to keep pursuing an agreed settlement with less trepidation about losing face nor about having traction with their future cases. 

Fairfax criminal lawyer Jonathan Katz is a true trial lawyer, having successfully tried hundreds of cases for criminal defendants. He never rests on his laurels, fully preparing each case for trial and repeatedly gathering with other highly-advanced criminal defense lawyers to develop his and their cases for trial. Call 703-383-1100 for your free in-person confidential initial consultation with Jon Katz about your court-pending case.