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 reason there is plea bargaining is a direct result of politics. We have fifty states that have created fifty sets of state law, and fifty sets of legislators that have determined what a crime is and what is not. They have appropriated a lot of money to law enforcement officers to basically go around looking for criminal acts. Some of these criminal acts are completely manufactured and have nothing to do with public safety. The war against marijuana is a prime example. This is a political crime more than it is a public safety crime, yet our politicians in Florida have determined marijuana to be so dangerous that it is actually written into the law that marijuana cannot even be used safely.

I have practiced criminal law a long time, and I have never seen a fact pattern that goes like this. A man smokes a marijuana cigarette, head explodes. You will never see something like that. Nevertheless, our legislators have made a lot of things against the law. So much so that if we did not have plea bargaining the sheer volume of cases would break the system within about a month. I was talking to an assistant state attorney the other day, and I said “I know you’ve been busy and have a high case load. I’m curious, what is your case load now, 300 cases a month?” It turned out the case load was four-hundred and fifty plus.

The next day I was speaking with another prosecutor about a case and I said “Oh, by the way, I understand your case load’s grown quite a bit over the last few years. I was talking to your colleague who was doing over 450 cases a cycle.” That prosecutor started laughing. I said, “I have a feeling you have a few more than 450 cases a cycle”. The prosecutor replied “Over 600”. So that is why we have plea bargaining. From the defense point of view, if every single case went to trial a lot of people would be doing maximum sentences. In theory and in law, a judge cannot punish someone for exercising their constitutional right to a trial by jury.

In reality, people who have probation plea offers before trial get maximum sentences if they lose trials. How does the judge get away with it? Simply because the judge does not say why, and if pressed, the judge will say that the evidence during the trial brought to light facts and information the judge would not have had beforehand. This is very important from the defense’s perspective. From the Hippocratic Oath, it is a good idea to do no harm. What has happened though is instead of providing a legally fair resolution where there is no issue of guilt because a lot of times people just want to plead no contest or guilty and get it over with. They did wrong. They recognized it. They want to be fairly treated.

Unfortunately, it has dissolved into a combination of being a money maker for some parts of the government, and a waste of tax dollars generally. How does that work? It is a waste of tax dollars simply because the legislature has chosen to make so many crimes mandatory prison sentence categories. Put things in mandatory prison categories. That costs taxpayers a lot of money. When it comes to the fines, court costs, and probation fees, something interesting happens. Instead of that money being kept within the criminal justice system, it is spread all over through state government and amounts to a tax on a vulnerable population, and there are questions as to whether this tax is legal.

Finally, plea bargaining done correctly can be one of the best aspects of the criminal justice system. We can use this as an opportunity to solve the problems of crime. Unfortunately, as long as prosecutors are elected officials along with sheriffs, we are going to have a real problem with politics coming before people, and reelection is always more important than solving the problems of crime.

When Is Plea Bargaining Generally Done?

The best time to start plea bargaining is immediate. Think of it like that old movie they remade. I do not know how many times at this point. Usually, by the time they kill Godzilla, Godzilla has rampaged through Tokyo and several other cities causing great loss of life and damage. What if they could have nailed Godzilla while Godzilla was still in the egg? A lot of damage would not have occurred. This is why when someone has that first contact with police and there is an investigation of any kind, the first thing they should say is “I would like to speak with an attorney”. The response may be very rude, it may be bullying, and in some cases has been threatening.

Saying “I would like to speak to an attorney” will certainly not talk a police officer from giving someone the ride to the county jail if they believe a crime has been committed. But that is the first opportunity someone has to help with their plea bargaining, and that is not to make a statement. The second best time is after that initial contact and before being charged. When someone is arrested the police have made a criminal complaint, yet the police do not have the legal authority to formally charge someone with a crime.

In some counties that are called a plea day, which is technically inaccurate. It does not matter what they call it as a practical matter, but technically the correct name is the arraignment. Arraignment is the process by which a judge calls someone’s name out, and then the state of Florida files a charging document and formally notifies the defendant of the legal charge. Someone might be arrested for say, three counts, but by the time they are charged they might only be charged formally with one count, or they could be charged with more than three counts. This catches a lot of people by a surprise because they think whatever the police arrested them for, that would be it. They cannot be charged with anything else.

Actually, this is not true. The best time to talk to the prosecutor about a settlement, whether someone is looking for a negotiated dismissal or something else, is after the arrest, but before that first court date. Because once that assistant state attorney files a charging document, we have twenty office policy manuals in twenty circuits across Florida, one for each state attorney’s office, and they all say essentially the same thing. Any reductions in charge and substitutions in charge, any transfers from circuit felony to county misdemeanors must be approved by the felony supervisor once information of the indictment has been filed. Formal charging in Florida does not involve a grand jury unless it is a murder case.

Formal charging is completed when the assistant state attorney swears an oath and signs an information of indictment which has been filed with the clerk of the circuit court. Once that is done it makes it more difficult to settle quickly. Reductions, substitutions, and other types of things as the plea bargaining process will still come into play, but the best time is before an arrest, which almost never happens. So then the next best time is after the arrest but before the first court date. Generally speaking, plea bargaining begins and continues throughout the life of a criminal case. Some assistant state attorneys want to be approached in court while they are in other cases. Most hate that, just because of the case volume they have. Other assistant state attorneys prefer a phone call. Still, others prefer email, and some prefer text.

There are very few in the modern era that prefers an office visit. Office visits still happen, but they happen a lot less frequently than they did twenty years ago. All plea bargaining should result in a written agreement, and in misdemeanor cases, it is often possible to complete a plea bargain, reduce it to writing, and do what is known as a plea in accession. I do this routinely for clients, especially if they are out of state, and no court appearance is required. Plea bargaining should start early and continue until a final deal is handed out, or got to trial.

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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