If I Don’t Like My Plea Bargain, Should I Just Go 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.

Welcome back to casual Friday at Florida Criminal Law TV. My name is Stephen Cobb, the host of Florida Criminal Law TV since the 1990s. And I am really enjoying answering viewer questions today and people who also read things on the website, who followed my videos, I’m very grateful. Thank you very much. And so, let’s go to the next question in the series because I have run into this question since the very beginning of my career and it led to a creation of the top 10 defenses that will not work. And we are going to cover one of those 10 by answering a question.

So, a viewer writes a very good question and the question is simply this. “I do not like my plea bargain; should I go to trial?” Now, a lot of people believe that if you do not like your plea bargain, you set your case for trial, some lawyers believe this. And magically on the day of trial, the plea bargain is going to get better. Here is the truth. Yes, that is true in some cases. What also can happen is it can blow up in your face like a thermonuclear bomb and destroy your life because one of the top 10 defenses that will not work is that’s too much time, or “I don’t like the plea bargain, I am going to trial”. Now, can you imagine me standing in front of a jury with a straight face going, “Ladies and gentlemen, our defense is simple. Although my client is guilty, that is too much time and you should find him not guilty”. No, that will not work. That will only result in a conviction and I will give you an example of where that applies.

There was a guy who had 4-year probation offer on the table, was standing in front of a judge, a colleague of mine was handling the case. And because his mind was not in the right place, at the last second, he said the wrong thing in court. He came back the following Monday after the judge left it set for trial, tried to enter a plea of no contest, this time succeeded and treated 4 years of probation for 35 years in prison.

Now, I do not have a degree in math, I have degrees in things like electronics technology, computers, history, my doctorates in law, that’s four degrees, that is plenty. But I do not have one in math yet I can figure out just like you can that 4, whether it’s years in prison or probation, is a smaller number than 35. So often, we run into cases where people will say, “My friend said that if I just leave it set for trial, I will get a plea offer on Monday”. Well, as the gentleman who tried to handle a plea and was not successful in doing so discovered that 35 is a bigger number than 4 years of probation, you do not want to blindly and recklessly reject a plea offer and go to trial if your lawyer advises against it.

Now, notice that qualifier, if someone on your legal team who is a lawyer recommends against it because when you are experienced in the criminal justice system, you know when you are looking at a file, you go, “Okay. Based on this, this, this and this, we should leave it set for trial because I believe they are going to fold on Monday because we have got this defense, that element has a problem, there is a risk to them on this other element of the charge and the jury instructions”. In this particular case, I believe we should leave it set for trial. However, that is a judgment call on tactics and strategy that you are not qualified to make. I mean let’s look at the reality. Have you been to 3 years of law school? No. Do you have a specialization in criminal law? No. Do you have experience litigating criminal defense cases as a lawyer, not as a defendant with the long prior record? And we know the answer to that question is again no. So, you do not just blanketly answer a question yes or no like that, if I do not like the plea offer, should I go to trial? Yes or no in every case. The answer is you listen to your legal team and for the love of God, please, do not go to the internet and do what so many people do. They are going to research the law and research the law and research the law and bring these cases to their lawyer and tell them they must do this and they must do that because you do not know how to research the law just because you can put things into Google, just because you were legal secretary for 5 years, just because your best friend’s neighbor’s dog’s former owner was a police officer in Chicago does not mean that they know how to handle a major decision like that. This is a critical, critical decision, the decision whether or not to accept or reject a plea offer and go to trial and not. And that is something that if you are the defendant that you make. It is not something that the lawyer makes as a final decision.

However, as a matter of tactics, as a matter of case strategy, your lawyer is going to advise you and here is my advice, follow their advice. They have experience, they know what they are doing, they have actually tried criminal cases unless you have gone out and picked somebody whose main focus in life is real estate and family law, oh occasionally they do criminal law. Avoid that person. Get somebody who does criminal law exclusively or so frequently and they know what they are doing because when they give you advice on whether or not to take a plea bargain, they are basing it upon actual experience. No one wants to hear in 27 years of experience that I have had that, for example, 12.1 months in state prison is a good deal. But you know what, if you have got a long prior record, a terrible case and you have got a year and a day kind of an offer and then your case is over with and the downside of your case if you lose, you get three consecutive 15 years sentences for a total of 45. It, again, is basic things we saw in Sesame Street and other shows as children, which one of these numbers is bigger than the other?

And so, for a question like this, yes, as a defendant, it is going to be your choice as to whether or not to take a plea bargain but whether or not it is advisable or smart to go to trial instead, that is something where you make that decision after you have had a lot of input and discussion with your legal team.

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.