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What is a plea bargain? Why are so many cases plea bargained?

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Joe Goodguy is charged with aggravated assault with a deadly weapon, a second degree felony.

The criminal case against Joe has problems.

The "victim," Bob Badguy, is a felon who was high on crack during the offense.

Joe is a decorated elementary school teacher with a clean record.

Finally, the prosecutor has a murder trial next week and 100 other serious felony cases to work on.

The prosecutor offers a plea bargain.

If Joe will plead guilty the prosecutor will reduce the charge to a misdemeanor and put Joe on probation.

Joe speaks with his defense lawyer and accepts the plea bargain.

Plea bargaining is the process in which the state and defendant reach an agreement on punishment in exchange for the defendant’s guilty plea.

Plea bargains are reality in every court in Texas.

In my experience, more than 90 percent of criminal cases are resolved via plea bargain.

Why are plea bargains so popular?

First, because prosecutors have a lot of cases to move.

Blame the war on drugs for this one.

The sheer volume of criminal cases (especially felony drug cases) means it would be impossible to have a trial in every case, or even prepare every case for trial.

Dallas County has more than 24,000 felony cases pending.

Those cases cannot all be tried.

Second, many cases have problems.

As a defense attorney I often raise perceived shortcomings in a case to the prosecutor.

Instead of dismissal most prosecutors will extend a better plea offer.

In our example, Joe escaped a serious felony charge (and jail time) and received misdemeanor probation.

Reduced charges, less probation/jail time, dismissal of companion cases etc, are all options when plea bargaining.

Finally plea bargains offer certainty and finality.

Jury trials are the best way to avoid wrongful convictions.

However, jury trials carry an inherent unpredictability.

Plea bargaining allows a defendant to control the outcome.

Fatigue is also a factor.

Fighting the state can wear down many defendants.

Attorney fees, numerous court appearances, missed work days and the stress of being a criminal defendant can make pleading guilty seem like a relief.

While plea bargains are voluntary (no defendant has to accept any plea offer), the state has a clear advantage in bargaining power.

The state has multiple attorneys, investigators and a limitless supply of time and funds for any one case.

Defendants can not always afford to pay the attorney or expert fees needed to fight the state.

Texas law also works against defendants.

Prosecutors have unlimited power to decide if a set of facts is a misdemeanor or a serious felony.

Discovery in Texas is very limited so defendants can not access all the evidence against them.

Texas law also prevents some defendants from making bail.

Put a defendant in jail, offer her freedom for a guilty plea and you will get a lot of guilty pleas.

Which leads me to my final point on plea bargain.

Plea bargains carry a great potential to convict the innocent.

Remember our first example?

Let’s switch the defendant and victim.

Bob Badguy is the defendant charge with aggravated assault against Joe Goodguy.

Now pretend Bob Badguy is 100 percent innocent, Joe made the whole thing up.

The prosecutor offers 10 years felony probation.

Bob doesn’t want to risk a lengthy jail sentence and pleads guilty.

Most people would say they would never plead guilty to a crime they didn’t commit.

However, most people are not facing decades in prison.


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Nelson Propane

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