Who Actually Does The Plea Bargaining In A Criminal Case?

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

The judge is prohibited from taking sides in a plea bargaining case. If done correctly, the judge can participate in plea bargaining to the extent of letting the parties know whether or not a proposed plea bargain would be accepted or rejected. In fact, every time the judge accepts a negotiated sentence recommendation, that actually is a moment for the judge to accept or reject the plea agreement. And that is about as far as it goes for the judge. Plea bargaining is done by an assistant state attorney on behalf of the state of Florida. Police officers and other law enforcement officers generally are not allowed to make enforceable plea bargains or settlement offers.

This is done intentionally so that they can lure people into a false sense of security when they do the whole you are not under arrest thing, and you are free to leave at any time, knock and talk scam. The knock and talk scam is to make people into basically blabbing their heads off and hurting their cases. Well likewise, law enforcement officers cannot promise anything, although they will frequently promise to put in a good word or claim that things will go easier. Instead of relying on assertions of law enforcement officers, or correction officers at the jail who offer “helpful advice” to people who have been arrested for the first time, or worse, from prosecutors prosecuting you, or worse, someone you love.

The best thing to do is to hire an experience criminal defense lawyer. Preferably someone with a trial reputation. You want someone with a very strong trial reputation because, in the back of that prosecutor’s mind, you want that prosecutor thinking wow, I really know that defense attorney is a pain in the rear end. I think on this one I will bend a little bit. You see where I am going with this? This is very important for plea bargaining. Generally, you have on one side the assistant state attorney, and when you are talking about the assistant state attorney doing the prosecuting in the division, you also have to remember you are talking with multiple state attorneys.

There is an office policy manual and all assistants have to follow it. The person in charge of making sure that misdemeanor assistant state attorneys follow the office policy manual is the misdemeanor supervisor. In some small counties, the misdemeanor supervisor is also the felony supervisor. Their job is basically to say no, and it is a very easy job simply because they do not have to try the case. I actually use this bit of knowledge to help my clients and make it clear to a lot of prosecutors that the time to be reasonable is upfront. Not when we are in the middle of a five-day jury trial. Because we both know who is going to try that case for the state.

It is not going to be the misdemeanor supervisor. It is not going to be the felony supervisor. And the final person in the chain of command is usually the chief assistant unless it is in a county where the elected state attorney lives. In a typical misdemeanor case, you have the divisional assistant, their misdemeanor supervisor, a felony supervisor on top of that, the chief assistant on top of that, and then finally, the elected prosecutor. That is five prosecutors you are really going through in some cases. That has been put in place to make sure that the political message of tough on crime is followed, that there is not a lot of compassion or mercy because those that mess up the conviction numbers, the public will reward prosecutors who are tough on crime.

When someone goes into the courtroom by themselves and they are negotiating with the prosecutor, they are actually negotiating with an entire chain of command. At the top of that command is someone who runs a very well-oiled machine that has a litigation system for criminal cases often spanning many counties. On the other side, you have the defendant and the defense team. Some defense teams will have one lawyer who does litigation with the litigation team and another lawyer who does mitigation of sentence with the settlement team. The more serious and complex the case, the larger the team. The smaller and less complex the case, the smaller the team. In some cases, it is possible where the lead council is handling litigation, the trial focus, as well as mitigation, negotiated dismissals or sentencings. Those are in small cases.

One of the things that I look for in every case is how to use neuroscience within the context of criminal law. And that is very rare and very specialized. But I often refer to is a secret weapon of criminal defense. When it comes to who does the plea bargaining, this is critical. Not too long ago somebody has a very favorable plea bargain in felony court that called for four years of probation. This was on a Thursday. During the plea colloquy, because the client did not control stress and the lawyer did not have a stress protocol, the client said something that resulted in the judge rejecting the plea agreement. The case was left on trial for Monday, the prosecutor missed her entire weekend with the kids, the 10k race she was planning to do, and she came armed to the teeth on Monday when the plea of no contest was successfully entered and the defendant was promptly sentenced to thirty-five years in prison.

Generally, in criminal court surprise equals bad. The mastery of one’s emotions while under criminal prosecution cannot be over emphasized. I could tell stories all day long about how well-meaning people lost control of their emotions and ended up getting severely hurt in criminal court. The best person to do plea bargaining for you or somebody you love if there has been an arrest is a very experienced criminal defense attorney.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

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