Blog

Posted in life

Criminal Plea Bargains Have Alternative Motives

Advertisements

Plea Bargains

You are here: Information Center >> Criminal Law >>

Plea bargains are voluntary agreements and are made as a result of negotiations between prosecutors and defendants. To avoid a trial in exchange for a certain sentence.

At least 90 percent of criminal cases in the United States are disposed of through plea bargaining.

The prosecutor avoids the time and expense of a trial and the defendant is getting something less than the worst punishment a jury could give. Both sides avoid the uncertainty of a jury verdict.

The court must approve plea bargains. Because judges often work with the same prosecutors in their court on a daily basis, it is not common for a judge to refuse a plea bargain.

A plea bargain requires the defendant to plead guilty or nolo contendere, meaning “no contest.” Plea bargains can result in a variety of dispositions-a lighter sentence, dismissal of additional charges against the defendant or reduction of the charge from a felony to misdemeanor.

Duties of Defense Counsel

The Sixth Amendment to the U.S. Constitution guarantees every defendant the right to an attorney and adequate representation. Under this standard, your attorney in a criminal case must always communicate and discuss with you any plea bargain offers from the prosecution.

If you are not kept informed of potential pleas, go to trial and are then convicted, it is possible that you have been “prejudiced” or treated unfairly and deserve a new trial because your attorney did not adequately represent you.

To determine if your representation was inadequate, courts use the Strickland test. In the Strickland case, the U.S. Supreme Court required the defendant to show two things:

  1. The attorney’s errors were so serious he was not functioning as effective counsel; and
  2. There is more than a reasonable probability the outcome would have been different if the attorney had not made errors.

In plea bargain situations, this requires a showing that the defendant would have, in fact, pleaded guilty if he had known about the plea bargain offer and the court would have accepted the plea.

Duties of the Court

The judge has the duty to have you sworn in and ask you if you understand the consequences of your plea bargain.

Under the Federal Rules of Criminal Procedure and in most state courts, you are addressed personally by the judge and asked if you understand:

  • you can be prosecuted for perjury if you give false statements under oath;
  • your right to plead “not guilty”;
  • right to a jury trial;
  • represented by counsel-and if necessary have the court appoint counsel-at trial and at every other stage of the proceeding;
  • confront and cross-examine adverse witnesses and you are to be protected from compelled self-incrimination, to testify and present evidence, and to compel the attendance of witnesses;
  • that you are waiving these trial rights if the court accepts a plea of “guilty” or nolo contendere (“no contest”);
  • charges to which you are pleading;
  • possible maximum penalty, including imprisonment, fine and term of supervised release;
  • any existence of mandatory minimum penalty; and
  • the court’s authority to order restitution (payment to the victim).

You should know that the judge does not automatically have to honor the plea bargain offered by the prosecutor.

Factors in Plea Bargains

The primary factor in any plea bargaining negotiation is the strength of the prosecution’s case. Is the case against the defendant a strong one? Is there sufficient evidence? Are witnesses available? Did the police perform legally?

For a defendant, the question of how a jury would vote and what makeup of jurors he would get is a prime consideration. Another important factor is the experience of the criminal defense lawyer and her ability to obtain acquittals.

Former prosecutors that become defense attorneys are a big bargaining chip for a defendant, as they know the ins and outs of criminal trials from the government’s point of view and often know the prosecutor.

The victim is also a factor in plea bargains. If the victim is traumatized and unwilling to testify, the prosecution’s case is not as strong. Sometimes the victim simply does not want a trial and acquiesces to a plea bargain with the defendant. On the other hand, a sympathetic victim will be difficult for the defense to counter, strengthening the prosecution’s case and chances for a conviction.

Additionally, public outcry is important.

District attorneys are elected officials and their unwillingness to take a high-profile case to trial by plea bargaining it away can affect their job security.

Does the prosecutor have to offer a plea bargain?

No, a defendant is not entitled to a plea bargain.

The prosecutor “threatened” me with a trial if I did not plead guilty in exchange for a lighter sentence. Is this coercion?

No. Although your plea must be entered voluntarily, the prosecutor is not threatening you. She is merely informing you of what will happen if a plea bargain agreement cannot be agreed upon.

My attorney wants to go to trial but I would like to try to plea bargain. Does he have to tell me if the prosecution offers a deal?

Yes. If your attorney does not communicate a plea offer to you, your constitutional right to adequate representation by an attorney has been violated.

You have reason to complain of “ineffective assistance of counsel” if you are convicted and later learn that a plea bargain was possible.

SIDEBAR: Courts require criminal defense attorneys to inform the defendant client of any plea offer. Furthermore, an attorney for the defendant has a constitutional duty to give his client professional advice concerning the plea so that the defendant clearly understands the consequences of his decision.

I have been convicted of a crime that I would have pleaded guilty to if I had had a better understanding of the consequences. Is there anything I can do to overturn this conviction?

Yes. If you were ineffectively represented and can show that you were prejudiced by your attorney’s poor performance in explaining the plea bargain, the court may dismiss your conviction and order a new trial. The judge might also impose the sentence that the prosecution offered if you had pleaded guilty.

I have agreed to plead guilty to a charge and the prosecution has agreed to some concessions. How do I know the prosecution will keep their end of the bargain?

The terms of the plea agreement will be read to the judge in open court, putting the plea bargain “on the record.” You will have the chance to listen and make sure it is accurate before you plead guilty.

Courts require that the prosecution keep its promises to the defendant or the plea bargain agreement will be invalidated. However, the broken promise must be a material breach, such as promising not to recommend a certain sentence to the judge and then doing so in open court.

TIP: Any items of property you want to recover should be identified in the plea agreement, with a time and place of return. For example, if documents were taken from your home during a search, they should be listed in the plea agreement and read by the judge.

If you will not be able to receive the property because you are serving time, then designate someone to go to the prosecutor’s office and pick up the items.

I have agreed to plead guilty in exchange for a lighter sentence and the agreement is in writing, signed by the prosecutor and myself. Does the judge have to abide by the terms of the plea bargain agreement?

No. Although you have made an agreement in writing, the court is under no duty to accept it. The judge, after accepting your guilty plea, has the discretion to impose any sentence within the guidelines of punishment for your crime.

The judge may be required to set forth her reasons for rejecting the plea agreement. In federal court, the judge is required to advise the defendant personally that she is rejecting the plea agreement and that the defendant is permitted to withdraw his plea.

Does pleading guilty mean I have been convicted of that crime?

Yes. Once you have pleaded guilty and been sentenced, the matter of your guilt or innocence has been concluded. A guilty plea is not merely a confession; it is the basis for a conviction.

After pleading guilty, the judge sentenced me to a longer time in jail than I expected. Can I withdraw my plea?

No, not if this is your only grounds for withdrawal and if you were informed by the court that there was a range of possible sentences.

TIP: Courts use pre-sentencing reports to help determine the punishment that will be imposed. After a plea is made in court, judges will often defer sentencing until the report is made. If you find out that the report recommends a greater punishment than you expected, you will not be able to withdraw your plea, although the court has not yet imposed a sentence. If you can, delay making your plea until the pre-sentencing report is completed and you have seen it.

Can a plea of guilty made pursuant to a plea agreement be withdrawn?

Yes, if you do so before the court accepts it or a sentence is imposed.

After the court sentences you, based on your guilty plea, you will have to prove that facts exist that show a fair and just reason for the withdrawal of the plea. If such facts exist, the court will hold an evidentiary hearing. If a fair and just reason for your plea withdrawal is proved, you will be allowed to withdraw it. For example, if new evidence has been found tending to show your innocence, you may be allowed to withdraw your guilty plea and plead not guilty.

You do not have the right to a hearing on the matter of withdrawing a guilty plea just by bringing it up to the court. Furthermore, you do not have an inherent right to withdraw your guilty plea, although federal and state laws give you the right anytime before acceptance or sentencing.

What factors show that there is a fair and just reason for withdrawing from my agreement to plea guilty?

Primarily, the court determines if your prior plea was voluntary, intelligent and made with knowledge of the consequences. If it was not, such as the failure of your attorney to properly explain the consequences, the court may permit you to withdraw your plea.

Permitting a guilty plea to be withdrawn is solely in the judge’s discretion. In addition to determining whether your plea was knowing and voluntary, expect the court to inquire whether:

  • you are now asserting your innocence;
  • you have delayed in filing the motion;
  • court inconvenienced;
  • judicial resources wasted;
  • the prosecution is prejudiced; and
  • your representation by an attorney was adequate.

I made a guilty plea and the judge is taking the case “under advisement.” I have not been sentenced, am I still entitled to withdraw my plea?

No. Taking the case “under advisement” is tantamount to accepting your plea and you cannot withdraw it unless you have reason.

My lawyer told me that my photo would not be published if I pleaded guilty, and it is now on the Internet.

Am I entitled to withdraw my plea?

Yes. In Florida, a court ruled that an attorney’s mistaken assurances that his client’s photo would not be published were “measurably deficient” and the defendant was entitled to withdraw his plea after sentencing.

My sister suffers from several forms of mental illness, yet pleaded guilty to a crime. Can the plea be withdrawn on the grounds she is incompetent?

No. A diagnosis of mental illness does not make her incompetent to enter a plea. A defendant is presumed to be competent. A guilty plea cannot be withdrawn based on the existence of mental condition alone. Competency should have been raised prior to the plea so a hearing can be held to determine whether she understands the proceedings.

Although the court may impose a prison sentence when commitment to a mental hospital is expected, the guilty plea cannot be withdrawn. Typically, the judge has informed the defendant of the range of punishments, including a prison sentence, before accepting the guilty plea.

The judge permitted me to withdraw my guilty plea. What happens next?

You may proceed to trial by pleading “not guilty” or you can negotiate another plea bargain with the prosecution.

After I have pleaded guilty, can I be charged with a different offense?

Not if the new charge arises from the original criminal episode. In fact, once the court accepts your guilty plea, the rule against double jeopardy, or trying you twice for the same crime, goes into immediate effect.

SIDEBAR: Some state constitutions and laws do allow additional charges arising out of the same episode up until actual sentencing. Others allow the prosecutor to charge the defendant with additional crimes until some of the sentence is actually served.

The Long Haul

Advertisements

The Long Haul Has Its Advantages

Here are encouraging words from last Thursday please stick it out over the long haul.

Praise Report

Mike and Pat gave me several hugs and with tears said he couldn’t have made it without our help! Praise the Lord. He and Pat are getting married. Then, another fellow last week said he thought Jesus could leave him but, I assured him that Jesus says He will never leave us or forsake us. He needed that assurance! God Bless praying for you – John and Linda

Attached to her sweet message above was a message from Jesus Lives Victorious Living

Stick It Out Over The Long Haul

Receive my glory strength when ongoing problems require you to stick it out over the long haul, your faith sometimes falters. That’s when you resort to grimly gritting your teeth – simply passing time in a negative frame of mind. This is not the way I want you to deal with difficulties. We pray that you’ll have the strength to stick it out over the long haul-not the grim strength of gritting your teeth but the glory-strength God gives.

It is strength that endures the unendurable and spills over into joy. Colossians 1:11

I am sovereign over the circumstances of your life, so there are always opportunities to be found in them. Sometimes those opportunities to be found in them. Sometimes those opportunities are so obvious you can’t miss seeing them. See, the sovereign Lord comes with power…and his recompense accompanies him. Isiah 40:10

Journey’s Long Haul

At other times-especially when the journey is hard and seems endless-you have to search for hidden treasure. Do not be like the man who hid his master’s talent in the ground because he was disgruntled with his circumstances. And I was afraid, and went and hid your talent in the ground. Look, there you have what is yours. Matthew 25:25 He gave up and took the easy way out; blaming his hard situation, the more treasure there is for you to discover in it. I gladly give you glory-strength; it is limitless and freely available to each of my follower. It is exceedingly potent, because the spirit himself empowers you strengthening you with Power in your inner being moreover, glory-strength enables you to keep on enduring the unendurable. Since this strength has no limits there is more than enough of it to spill over into Joy!

I pray that out of his glorious riches he may strengthen you with power through his Spirit in your inner being, so that Christ may dwell in your hearts through faith.

Bullying and Harassment

Advertisements

Bullying and Harassment

Here’s another important fact that people often miss when it comes to bullying and harassment of a target. Bullying is a pattern with highs and lows with breaks or lulls. These peaceful little reprieves can last for up to several months. What does this mean? This pattern of highs and lows feels like a roller-coaster […]

When You’re Bullied, Sometimes There Will Be Lulls in The Bullying You Suffer. So, What Does It Mean?
Posted in Faith In God, life

Baker’s Daughters Journey

Advertisements

Before I can get to where I need to be I must learn what it takes to get there.

So I ask you…who are you and what are you meant to fulfill during your lifetime?

I want you to think long and hard about the following:

  • Think about a specific baking ingredient.
  • How many uses do you or does your baking ingredient have?
  • What purpose do you have or does your baking ingredient have?
  • How versatile can you be or what can your baking ingredient become?
I will give you a synopsis of my story, because, like you or someone you know. We’ve experienced one form of abuse at some point. I’ve been used, abused and attacked all because of nuts in and out of my life.After countless trials and errors on my part. I’ve become a new creation where I can stand stronger knowing God has my back and I can and will seek him in all that I do now.

I want to be __________ (choose a specific baking ingredient).

I want you to use this same perception in your life (what you choose – your own baking ingredient).

That will develop into something worth making. All because of the vast amount of variations that this baking ingredient provides.

Creation

We are all uniquely created!

How would you feel if God did not create you?

Your Worth

We all have worth and we are worth it!

Is it all worth it? Yes! Do you have everything you need? Do you have more than you need? Is all the hard work and labor that you put into to things worth it? Yes!

Memories

Please create some amazing memories that your children will want to hold on to. Causing a trickle effect to future generations.

I truly hope the outcomes from the trials I had in my life will give you hope and strength.

We all have a purpose to fulfill while we are on this earth in this body we call a human being.

I know during hard times you have thought often… but, I didn’t ask to be born. Knowing that we must move past that because, we cannot change that.

We must realize it’s time to accept what we cannot change and ask God directly so, why am I here? Why am I going through this or that?

Gods Plan

You were chosen by God. His plan of your birth took place prior to you being conceived. You might as well consider yourself the chosen one and that you have a purpose to fulfill.

So, let’s live it out the best way we can. We need to stop all the bad things that have manifested in our families. We need to take our eyes off ourselves and think about the less fortunate. We need to set the example for others and be an example for others to follow.

During our difficult times that will happen during our lifetime, we must know that we are here to fulfill a mission, we need to figure out our purpose and that means we must have faith and know that GOD has our best interest at heart.

God knows where our destination will be. But, we need to trust Him in all and what we do. We need to pray during our daily trials because they will continue to transpire. And that is because, the devil is amongst us. He’s prowling around ya.

So, how do you keep the devil away?

Pickup your bible!

Start reading and praying like there is no tomorrow. The bible is our answer to everything. Live by it and in it.
In spite of this, you did not trust in the Lord your God Duet. 1:32

I hope you are ready to hear about some of the trials that took place in my life. I call them trials because, you never will know the verdict till you go to trial and sometimes when you come out of the trial you still do not know. When you are in trial you are either innocent or guilty.

My feeling now is you are guilty till proven innocent, that is why you are in a courtroom. Imagine Judgment Day, when God says I don’t know you.

I know firsthand if we made good choices we wouldn’t be questioning ourselves as much. We are human beings living in a sinful world, we need to wear our armor each and everyday. The devil looks for our vulnerabilities.

We may be committing sin and not even think much about it till you walk away or something bad happens.
In all this you greatly rejoice, though now for a little while you may have had to suffer grief in all kinds of trials. 1 Peter 2:9

If this is so, then the Lord knows how to rescue the Godly from trials and to hold the unrighteous for punishment on the day of judgment.

Job 19:29

It is said, God stores up the punishment of the wicked for their children.

Let him repay the wicked, so that they themselves will experience it Job 21:19

Should you trust others? Do you have all the facts? Is it circumstantial evidence? Is it hearsay?

Do you keep your thoughts in your head for a bit, pray about it, then speak up?

Do you gossip?

Do you put yourself in vulnerable situations?

Does everyone have all the facts?

There are people that watch, listen and hear what they are being told and not even know if it’s true or not.

I persecuted the followers of this Way to their death, arresting both men and women and throwing them into prison, as the high priest and all the councils can themselves testify. I even obtained letters from them to their associates in Damascus, and went there to bring these people as prisoners to Jerusalem to be punished. Acts 22:4-5

You never know when your life will start over but, it does start over, it starts over all the time.

Why?

Because, we choose to repent and ask for forgiveness. We must try and keep a positive attitude, by thinking today is a new day, all things are new in it! Amen!

It’s a new day, it’s a fresh do over or start over! Everyday, is a fresh new start, because you can never say it is tomorrow, because in reality it is today.

You can also choose to look and live your life in the rear view mirror, which means you won’t be moving forward. We must move forward in life seeking and walking.

We will not be running, because hastiness will cause havoc, I know that all too well. My father had a nickname for me, he would say to me slow down ‘hurricane’. I’d never do anything slow!

Why follow directions?

I had to learn how to slow down, although it took till my late 40’s to understand why. If you don’t take things slow you may miss the turn you were supposed to take. You may even lose direction, or your focus may have gone away to the path you are not supposed to follow.

If you have no direction, or you choose to not stay on the right path your life may turn out like doorathee from whiz-herd of awhz. Maybe that is why my life has been what it has been.

I know the older I get I tend to have a mentally thought process of saying “I should of” or “could’ve” which is pure misery. If only I would have listened to my parents.

Your parents are telling you this because of their life experiences your parents are trying to save you from the pain your going to experience.

You will make many mistakes; causing you to make u-turns, hit bumps, even hit chuckholes, which leads to more damage and all because you didn’t want to listen to their advice.

Advice is knowledge from experience!

Knowledge

Gain more of it! How do I get the strength to gain more knowledge? Where do I obtain knowledge? I recommend going on a mission trip where you can be a blessing to others.Having a vast amount of knowledge can go a long way our past started from scratch it’s never too late to start from scratch (start over) fresh new thoughts can and will become great things. Give it a try!

Experience

Do you need experience? Yes! If you have no experience you may need to seek it out through volunteering. Be unique try something different. Why hold out on learning more? What are the advantages and disadvantages?