The only time an attorney can absolutely stop charges from being filed is when they do one of several things that affects the collection and preservation of evidence. For example, someone may be tempted to make their case better by talking to the police yet because they are not skilled at giving interrogation interviews, they could say something that could be interpreted to mean something that was not intended. This can be disastrous if later on it has to be corrected by in court, in trial testimony because that exposes the criminal defense client to a great deal of risk.
An attorney can however stop charges from being filed by gathering evidence and pointing out flaws in the state’s case to the state attorney, which intern does them a favor simply because they really don’t want to be filing charges that later on they would have to seek administrative approval to either substitute for lesser included offenses, substitute for other offenses, or just not file completely and if they are not in a position where they can take care of that upfront and they have to go through the supervisor chain of command, that can result in a word back from the higher ups that says, “No, you have to go forward with this”. By early intervention, a criminal defense attorney can potentially reduce or eliminate certain charges from being filed.
Why Is It Critical To Have An Experienced Attorney To Pre-Empt Charges From Being Filed?
That is an excellent question and the answer is because of the politics that surround law. The criminal justice system is nothing more than applied political power. Each county sheriff all across the state of Florida, in 67 counties, is an elected politician. Likewise, each state attorney for the 20 judicial circuits in the state of Florida is an elected official. Elected officials such as sheriffs and prosecutors, elected state attorneys have a vested interest in very high conviction rate. Anytime these charges are filed and then later dismissed, that looks bad in their eyes. So if a criminal defense attorney gets involved early, points out evidentiary problems that could lead to problems to trial, possible suppression of evidence, and other evidentiary matters, then this can cause the divisional assistant state attorney who will actually be prosecuting the case not to file some or all counts.
In many cases, this has worked when we have been able to get into a case early enough to where there was a finding of no probable cause and it never even made it to the office of the state attorney. When charges have been filed, the problem we run into time and time again is political pressure to keep those charges alive and force somebody to go to a jury trial in order to gain an acquittal. The problem with that is very simple. A charge dismissed upfront and never even filed upon is not a charge where someone is risking 6 months, a year, 5 years or even more if, for some reason, they lose at a jury trial. One of the safest and smartest things that a criminal defendant can do is hire the best legal team you possibly can, do so as early as possible and then have them try to preempt charges, so that they are not filed in order to prevent the problems I described earlier.
What Factors Does An Attorney Consider When Negotiating Pleas Or Charges?
The number one factor that I consider when deciding to recommend a plea offer dismissal or trial is what the client wants as an outcome. This is a conversation we have at the initial consultation when I ask people basically “What do you want as an outcome?” After this number of years of practicing law, I think that I know what the answer is going to be. Nevertheless, it’s critically important to listen to what the client wants to do. At the same time, criminal defense counsel often have to be the agent of reality. Sometimes, people don’t get the whole love, they might only get half a love and it’s in their best interest to take a felony plea offer. The problem you run into in some cases are where you run the risk of 7 years in prison if a person takes the plea offer and a risk of 15 if they lose at trial.
We do everything possible to prevent those types of second degree felony disasters from occurring because that truly is the harms of a dilemma for a client. Each case is going to be different in terms of facts and applicable law so the decision whether or not to go for a negotiated dismissal, a motion to dismiss the rules of criminal procedure, a plea offer, that’s a plea of no contest but without an agreed upon sentence and a sentencing hearing, that can be used in some cases, there are number of different choices but the most important consideration by far, in my opinion, are the wishes of the client because the client is the person who ultimately bares the benefit and any consequence of any plea bargain or win or loss at trial.
Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is a slightly edited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.
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