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Negotiation with a Gun to Your Head


By Caryn J. Adams
Partner and Attorney
The Gasper Law Group, PLLC

Why would a guilty man faced with the certainty of a long mandatory prison sentence hire a lawyer? Why would he do so if he had confessed everything about his crime to the police? If there were no holes in the District Attorney’s case against him? If he had no hope of “beating the rap”?

First, a case that appears hopeless may not be. A good defense attorney is trained to look for any weakness in a case, especially weakness that someone with less legal experience might overlook. For example, was that confession taken in a manner that meets Constitutional muster? Did the police commit any Fourth Amendment violations in their investigation? Does the evidence gathered meet the strict elemental requirements of the statute? If drugs were seized, were they tested? Was all laboratory work done correctly? As one of my clients recently put it, “If the District Attorney is going to hold a gun to my head, I’d like to know if it’s loaded.”

But let’s assume for a moment that the experienced criminal defense attorney examines the evidence and determines the case is airtight. What then?

I am convinced even cases that may appear hopeless can benefit from negotiation with the District Attorney. Given the number of cases filed every year, the District Attorney simply cannot try every single one. Very few people indeed are prosecuted to the “fullest extent of the law.” The resources are just not there. About ninety-five percent of all criminal cases are resolved through the plea bargaining process. This obviously includes a vast number of cases where the person accused is, in fact, guilty.

More than that, prosecutors can be swayed by human arguments. Most prosecutors do what they do because they believe to some extent in the ideals of public service. They believe that they can make a difference for good in the community. Sometimes, this may mean that a prosecutor with a solid case may consider long-term rehabilitation over prison. He may consider a shorter sentence that allows an accused to serve a “debt to society” and reemerge with job skills or education obtained in prison.

Negotiating with a District Attorney can be a delicate proposition for a defense attorney, especially when that gun pointed at the client is, in fact, loaded. However, a good defense attorney is a skilled negotiator. She should know the client’s wishes and priorities as well as the prosecutor’s. She should know the extent to which the criminal statutes allow for sentencing concessions like alternatives to incarceration or lesser charges. Ideally, she should have some idea of which arguments and approaches are most likely to be successful with the individual prosecutor involved. Not every case can be negotiated successfully, of course, and none of the above should be read to convey a guarantee or promise of any particular outcome. However, the attorneys at The Gasper Law Group believe that “Helping People First” means bringing our collective experience and skill to bear even in the “hopeless” cases.

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