Plea Negotiations

Chicago Plea Negotiation & Agreement Attorneys

Some businessmen and politicians seem to always deal from a position of strength. Yet, rarely does a criminal or traffic defendant enjoy such a position of strength during negotiations. To the contrary, the criminal defendant is usually in a subordinate position in comparison to the prosecuting authority, which has the full weight and resources of the government at his/her disposal. Contrary to popular culture's portrayal of the justice system, trials are not the "norm", despite all the television shows that suggest that most criminal cases go to jury trial. Plea deals are much, much more common. Sometimes in the real world, a Chicago criminal lawyer does a far greater service to his or her client by negotiating a favorable agreement rather than subject the client to the risks and financial costs that going to trial often brings.

Sometimes a Plea is a Reasonable Choice

Sometimes, the State has an "open and shut" case against a defendant, and a plea deal is a mere formality, when the defendant has confessed to the crime, video tape evidence exists of commission of the offense, or when the defendant has been caught "red-handed". In such cases, the agreement is usually predicated upon the defendant's prior criminal history, the nature of the offense, and any factors in aggravation and mitigation that may apply. Usually, it is fairly easy to come to an agreement, because there is no question of possible innocence being raised, and the parties strive to be reasonable so as not to clog the court with an unnecessary trial. The only fly in the ointment that sometimes occurs, happens when one side chooses to set unreasonable expectations for a sentence, and no meeting of the minds can therefore occur.

Negotiating From a Position of Power

Other times, the State's case is not so clear cut, and considering the defendant's presumption of innocence (all defendants are presumed innocent), and the State's burden of proof beyond a reasonable doubt, plea negotiations become trickier. These are the cases where a very skilled trial attorney, who understands the psychology of the prosecutor, as well as that of his or her client, can obtain a great deal that may make going to trial unnecessary, if the client wishes for that to happen. Here, it is important to try and take a position of strength, to put the fear into the prosecutor that they will lose at trial, or at the very least that the case will be decided on some lesser offense that may be more appropriate under the facts.

Reduced or Dismissed Charges in Chicago

Only a prosecutor (known as a State's Attorney or District Attorney) can proceed with the prosecution of a criminal charge in court. Only a prosecutor can reduce a charge or dismiss a charge prior to trial. In a marginal case, a prosecutor may well consider dismissing or reducing charges if the facts lend themselves toward that end, and the defendant's criminal history is minimal so that a prosecutor can do so without immediate negative repercussions. If a defendant is charged with a serious crime, but the evidence is very weak, a reduction of charges may be had, but if the defendant has a bad history of criminal behavior, most prosecutors would rather put the case to trial and take their chances rather than grant a reduced charge and face the wrath of their supervisors, bosses or the general public.

Sometimes, whether or not the State has a strong case or a weak case, the State will not negotiate. For example, it has long been the policy of certain county prosecutor's offices, with respect to DUI cases, to not allow the assistants in the court rooms to reduce any DUI charge, no matter what the facts are, whether the evidence of guilt is weak, or whether the defendant has some extremely redeeming qualities that might justify "mercy." In any case in which a defendant is hoping to obtain a reduction of a criminal, traffic or DUI charge to avoid a mandatory conviction, jail time or revocation of driving privileges, the lawyer may need to submit to the supervisor of the unit a "Mitigation Package". This is a compilation of documents and information intended to convince the State to drop the charge in favor of some other charge(s) that will result in a lesser sentence or to avoid a revocation of driving privileges or mandatory jail time.

The Mitigation Package

There are several concerns regarding the submission of such a mitigation package in any circumstance: any attacks against the State's case that are raised serve to put the State on notice, and telegraph your intended defense if the case were to go to trial. This gives them the opportunity to investigate away your defense, or otherwise prepare a strategic response. Another concern is that you are releasing sensitive information about your client's personal history, including information that otherwise might be protected by law, such as HIPAA, which protects medical/psychological records, and instead of raising a prosecutor's sympathy, you may add fuel to the prosecutorial fire.

Still, if a plea deal can only be discussed after a written package has been submitted, and it has been decided that a plea deal may be of benefit, then it is usually a good idea to submit the package. The next concern, of course, is what and how much do you submit? It is our opinion that less is generally more, meaning, do not overplay weaknesses you have found in the State's case, as that will likely cause the "circling of the wagons", and close off any hope of leniency, as the State works to strengthen the areas you so helpfully pointed out to them.

Instead, we tend to focus on every decent trait that we can say on our client's behalf, point out every hardship or difficulty facing our client (and more importantly, his/her dependents, especially young children) as a result of the charges at hand, and emphasize our client's potential to rehabilitate, or "make good" and not repeat criminal behavior. As for the State's case, it is acceptable to point out to them, in passing, that the case is not open and shut, and is indeed a "triable" case. Instead of wasting energy working up their prosecution, the prosecutor may be amenable to a fair deal. At the end of the day, even if no deal is reached, you have at least reserved your defenses for a trial, and can fight from a better position.

The "402" Conference

What if you really want to work out a plea deal, but the prosecutor will not agree to a reasonable sentence? While a Judge cannot force a prosecutor to reduce a given charge, or dismiss a charge, a Judge can impose a penalty for a given offense that is more lenient than that proposed by the State. In Illinois, there is a mechanism that will allow a Defendant (through his attorney) and a prosecutor to sit down with a Judge, off the record, and discuss the entirety of a case, referred to as a "402 Conference", under Illinois Supreme Court Rule 402. Rule 402 allows that, where the parties are contemplating a negotiated plea, the deal can be brought to the Judge's attention, so that the Judge can indicate whether or not he will go along with it. In a number of Illinois court jurisdictions, local practice has evolved so that, even where there is no agreement, or more pointedly, especially where the two sides cannot agree, the Judge will recommend a sentence that the Defendant is free to accept or reject. Of course, the 402 Conference involves a Judge hearing ALL of the facts of a case, whether or not they would be admissible in court at trial.

A Judge, before entering into the conference, advises the defendant on the record of that fact; that the Judge will then make an offer, which you can take or not. However, the Judge will tell you, if you refuse the deal, then the Judge will hear the case at trial, and you cannot seek a substitution of judges based upon his/her participation in the conference. So, you run the risk that the Judge will hear inadmissible evidence outside the court room that may affect his/her judgment at trial. It should be noted though that a Judge is required to decide a case ONLY upon the competent evidence admitted at trial and which is on the record, and to put aside any off the record knowledge that he/she has, unless it is the sort of thing that one can take "judicial notice" of, such as the fact that the Sun rises from the East.

Of course, one does not have to engage in a 402 Conference where the parties cannot reach an agreed disposition. One can always enter a "Blind Plea" of Guilty, and as they say, "throw one's self upon the mercy of the Court." Obviously, the more that you know about the Judge, one way or another, will help in that decision. Some Judges are actually harsher than the prosecutors before them, while some are more lenient. It is in this area that the adage "A good Lawyer knows the Law, a great Lawyer knows the Judge" is wholly applicable.

Speak to a Chicago Criminal Lawyer Free of Charge

If you are a criminal defendant, it is your constitutional right to enter a plea of Not Guilty, and to hold the State to their burden of proof, beyond a reasonable doubt, at a trial either before a jury of one's peers, or before a Judge. You also have the right to plead guilty if you wish to do so. Only you can decide for yourself what you will do—your lawyer cannot decide for you, and cannot force you to follow his/her will, but can only advise you of the risks/rewards of pleading guilty or not guilty.

Therefore, you need a highly experienced attorney that knows the law of your case, and how to best proceed with the prosecuting authority as well as the Judge. Call us at (800) 996-4824 to schedule a free initial confidential consultation with an attorney today! Operators are available 24/7, and we have office hours to suit your schedule.

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Written by Mitchell S. Sexner Last Updated : August 10, 2022