Thursday, December 15, 2016

To Plea Or Not To Plea? That Is The Question (Part 1)


I touched on this point a bit last week, it is worth expounding on it as almost every defendant, whether innocent, guilty, or somewhere in between, will be faced with the decision of whether to take a plea or defend himself at trial. Let me clear, there is no uniform, right answer and every situation is different. One thing that is clear however is that in deciding to take a plea, issues relating to guilt or innocence are largely irrelevant. You will have to take responsibility.  A defendant who pleads guilty will have to tell the judge that he understands the charges that he is pleading to and will have to affirm that he understands the statutory maximum to which the judge can sentence him. If the judge does not believe that a defendant believes himself to be guilty, there is a chance he will reject the plea.
To review, there are two separate factors at play when it comes to sentencing; the maximum per count and the sentencing guidelines. For example, a count may carry a maximum prison term of five years, but the sentencing guideline range can, and often will come in below that. The judge, as he himself will tell you, is not bound by these guidelines; the judge can and often has gone above the guidelines.
The judge will tell you at the change of plea to guilty that he has that right and that guidelines are merely "advisory".
But before we get ahead of ourselves, I think it is important to go over some of the considerations that one must consider. Today I will focus on two of these factors.
The most obvious consideration is really one that only the defendant can answer. Did you do it? Are you guilty and do you believe they have the evidence against you? Do you believe that because of this you will definitely lose at trial? Essentially, they got you and you do not have a leg to stand on. In this case all you have to do is look at the downside. All you have to look at is what will you get when you are convicted and get you do materially better by taking a plea. If the plea is not worse than what you will face when you lose then you might as well roll the dice and go to trial. If it is much better, then yes, take the deal.
Outside of that situation the primary factor that any defendant must consider is his family. Most white-collar defendants have families. This is a good thing. A strong support system is important when going through this process as well as when you are released, should you go to prison. At the same time, it is important to realize that while going through a trial will be grueling for you, it will be complete torture for your family. They will have to sit there in court and listen to the prosecution throw everything they can against you. You have to ascertain if you want to put your family through the horrific experience that is a criminal trial. This can go on for weeks. For some defendants this is reason enough to not go to trial. Remember, that if you decide to go to trial you better have the full support of your spouse if you have one. It is important for the jury to see that you have familial support and it does not take a genius to tell you what a jury thinks of a defendant who does not have familial support during a trial.
There is another reason to realize that family has to be involved. If you go to prison, it is not only you who are going to prison. Your family is going as well. Aside from the fact that their lives will be disrupted by your absence, they will be visiting you in prison as well. Should you decide to go to trial, make sure your spouse supports you unconditionally in this decision. I have met may inmates who, against their spouse's wishes decided to go to trial and lost. Do you think a spouse, who advises you to take a plea which would have you out of prison in a fraction of what you get when you lose will be there waiting when you get out? You cannot blame your spouse. By completely disregarding your partner's wishes you acted selfishly. You left your spouse to care for your children for say 10 years when it could have been two. If your spouse does support your decision to go to trial, then he or she must be prepared for what happens if you lose.
Another issue with regards to your family involves children. If you are a responsible parent, you know that there is nothing more important than being with your children and caring for them. You want to be there at every event, be there for the milestones and watch them turn into responsible adults. Any time you miss with them is time you will never get back. At the same time, we want our children to look up to us. We want them to learn from us. We want our children to not be embarrassed by us. We do not want our children to have to come to prison to see us; we want to see them every day. As a defendant, you will wonder how your guilty plea will affect the way you are viewed by your children. You may ask yourself if it is better that you maintain your innocence even if you lose at trial rather than admit to a crime that you may or may not have committed. At the same time, you must consider the risks. As I mentioned last week, an indictment with the potential to call for a 20-year sentence per count should you lose can magically become a plea deal with a five-year maximum. This 60-month sentence can easily become 13 months of actual prison with a cooperation reduction. Are you comfortable taking the risk of missing your children’s' entire childhoods when you can only miss a small part of it? Even if you are, in-fact comfortable with that risk, is it fair to your children to take that risk? As hard as it would be for you to miss out on their childhoods, it is infinitely harder for them to grow up without a parent. As with your spouse, your children's' needs need to be as well. The reality is that children are resilient and when laid out for them they will not think any less of you for taking a plea. But what will they think of you if you decide to embark on a risky trial depriving them of a much-needed parent at home?
As I mentioned there is usually no right answer. But these are perhaps the two most important issues to consider. When you choose to have a family, that comes with responsibilities to be there for that family. A defendant is in an unenviable situation because there are now other people who will be affected by his decision Sometimes guilt and innocence are just irrelevant.

Next week costs, lawyers, and odds.

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