Texas is known for being tough on crime. The judges, County Attorney and District Attorney are all elected on platforms that include a hard stance towards criminals. This creates an environment where plea bargaining can be more difficult. Every case is different but certain similarities exist.
In most counties in Texas misdemeanor offenses are handled by the County Attorney's Office. The prosecutors are divided into teams that work in set courtrooms. They generally spend 6 months to a year in a specific court with a specific judge before they are rotated to a different courtroom. This allows them to become very familiar with the judge's personality and what he or she will or will not agree to.
The judge's input is very important to the plea bargaining process. They are the final stop and final stamp of approval that is necessary before the plea bargain can be finalized. If they refuse to accept the plea bargain it is back to the drawing board. There are currently three county courts in Williamson County that handle misdemeanor pleas. The judge of each court has his or her own personality and each one expects different things from their prosecutors. What may be an acceptable plea in one court may not work in another.
There are certain things to keep in mind when negotiating a misdemeanor plea bargain.
1. Plea bargains work to everyone's advantage. The prosecutor wants to enter into an agreement. Thousands of cases are filed each month. They can not take every one to trial and trials are not appropriate for every case. Defendants want plea bargains because if they reach an agreement they know what the outcome is. Putting on a trial involves a large amount of risk. Will the jury find you guilty or not? If guilty what punishment will they order? Will that punishment be worse or better than what the prosecutor offered? Being able to make that decision takes us to point number 2.
2. Criminal defense lawyers make better plea bargains than people who are not lawyers that chose to go without a lawyer. It just makes sense. A criminal defense lawyer spends time in that courtroom, dealing with those prosecutors and judges. He or she will know what the "standard" punishment for a crime is and will be able to tell if the current offer exceeds the norm. A lawyer will also be able to tell you what your chances are at a trial. They can tell you how they have seen the judge handle evidence and what type or rulings they have seen. They will also be able to tell you what the range of punishment might be if the judge or jury does find you guilty. With that information you can make an informed decision about the plea offer instead of just assuming it is a good or bad offer. Going to court to negotiate with a prosecutor on a plea bargain without your own lawyer is like going to buy a used car without knowing anything about the history of the car or the going rate at other car lots. You have to trust the salesman and he may not have your best interest at heart.
3. First offers aren't always the best you can do. Just because the prosecutor makes an offer that you don't think is fair does not mean the discussion is over. If they make an offer it is for a reason. They think it is appropriate for some reason. If that is the case you need to give them something more to think about. Provide more evidence, or a new point of view. Give them a reason why that offer won't work that makes sense. Emotional responses will not sway them, but often logical responses like "he can't do 30 days in jail because he will lose his job and is the only support for his family" will. Sometimes you have to walk away from the negotiation table without a final agreement and come back later.
Negotiating misdemeanor plea bargains in can be a intimidating. The County or District Attorney was probably elected on a tough on crime platform. They can not be seen as weak. But if you keep in mind that the prosecutor is a person also with a job to do you can start thinking of ways to sway them to your side or at least give them a reason to offer a plea bargain that is in line with what you want and need.
Chris McHam is the lead attorney for McHam Law, a Round Rock, Texas based law firm focusing on family law, criminal defense, probate matters and civil litigation in Travis County, Williamson County, Hays County and Bell County.
