Negotiating Favorable Plea Agreements

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In every criminal case, the accused is afforded the presumption of innocence. Unless and until an individual is proven to be guilty beyond a reasonable doubt, each of us is cloaked with this protection. That is why one has rights under the United States Constitution, as well as the individual State Constitutions, to a trial by a jury of one’s peers, or a Bench Trial by a Judge alone. A person has the right to be represented by an attorney of one’s choosing, and if one cannot afford to retain an attorney, the courts will appoint a public defender. A person has the right to confront the witnesses against him or her in open court, to see the witness testify (except in some, very few, specific enumerated circumstances), and to be subject to cross- examination. A person has the right to remain silent, or to testify, and to present their own witnesses and/or evidence in their defense. What one normally does not consider, however, is the flip side of the right-to-trial coin: one also has the absolute right to plead guilty of a criminal charge.

When one is charged with a crime and it’s their intention to go to court, plead guilty, and “throw themselves at the mercy of the court,” they are often surprised to learn that in most circumstances, the Judge will not allow them to proceed on their own without legal representation, when there is a possibility that one could be sentenced to a period of incarceration. This is because the prosecutor is not bound to recommend that one should receive leniency, nor is the Judge required to sentence someone to “the minimum”. There are specific factors that Judges must consider when rendering a sentence. There may also be mandatory minimum penalties that may apply to a given set of charges. Judges are powerless to disregard mandatory minimum penalties, and they are not able to compel a prosecutor to dismiss, or to amend, the charges being brought before the court. Thus, it requires an attorney that is knowledgeable of the law to consider: the specific charges and the penalties that apply, the factors in aggravation and mitigation that may be applied, and, most importantly, alternatives to the charges at hand that could be brought by way of dismissing, reducing, or amending them.

In the greater Metropolitan Chicago area, in Cook County, and in the surrounding Judicial districts, referred to as our “Collar Counties”, the various prosecutors, referred to as State’s Attorneys, have put into place specific procedures for obtaining a plea agreement predicated upon a dismissal, reduction, or amendment of pending charges. We refer to this commonly as submitting a “mitigation package.” The purpose of the package is to formally request relief through the prosecutor’s “chain of command.” Ultimately, a supervisor charged with the decision will approve or deny the request. The Assistant State’s Attorneys assigned to the courtrooms have almost no leeway in varying the charges in their courtrooms, and they will tell you to submit your request in writing. Why do they do this, one might ask? It is simply a matter of creating a record in their own files, that shows a basis for their decision, so that, if it is reviewed later by an Armchair Quarterback, shows that there is inherent justification for their decision.

In order to be successful in obtaining relief by way of a mitigation package, it is important to remember why you are submitting it in the first place: this practice is not to be done for the purpose of convincing them to drop a case due to one’s perception that their case is weak: if all you can say is that their case is weak, and they should drop it, they will likely respond with, “then, let’s go to trial.” Never tell them that their case is weak, never point out the problems with their proof, for, if you must go to trial in the end, do not give them free insight into your theory of defense. Instead, talk about all of the positive aspects of your character, and present anything and everything tangible that you can, to show your good character, including one’s own letter of apology (if appropriate, and carefully worded), letters from friends, family, neighbors, co-workers/employers, clergy, or any prominent members of the community. These letters should be written by people that, even though they know about the charges at hand, still believe in your good character, that the charges are out of one’s normal character, and what positive changes they have seen since the incident occurred. They should not attack the prosecution for doing their job, they should not downplay the seriousness of the crime, they should simply state why the alleged offender is important to them, in their lives. Other items that should be included are resumes, diplomas, certificates of merit, grade transcripts, and proof of family, such as a spouse/significant other, and children, grandchildren, etc. If one has served in the Military, and was Honorably, or at least ”generally” discharged, a copy of the discharge papers, showing that military service, such as the DD-214, are always desirable.

Even if one is facing a very serious criminal charge, and there are mandatory penalties at play, there is always the hope that one can negotiate a favorable outcome with the State. Our criminal code is predicated upon the idea that people can be rehabilitated, and go on to lead productive lives, without warehousing them in a penal facility. There are many programs written into our Criminal Code that allow people to avoid the severe consequences of their conduct, reclaim their good names, and go on to live a good life. Hiring attorneys that know how to negotiate is often as important, if not sometimes more so, than hiring one that knows how to try a case as knowing which way to proceed, and when, is of the utmost importance

If you’d like to speak to an experienced criminal attorney. contact Sexner & Associates LLC at (800) 996-4824. Our phone lines are open 24/7 to assist you.

Written by Mitchell S. Sexner Last Updated : December 30, 2021