The Truth about a Prosecutor’s Plea Offers

As part of my duties as a defense attorney, I go visit clients at the county jail.  Doctors used to visit patients at their homes.  They don’t do that anymore.  But criminal defendants locked up in jail cannot come see you.  So we go see them at the county jail.  When you go see your client at the county jail, you are liable to come across a whole slew of half-cooked half-truths or outright falsehoods swirling around among the jail population.  People locked up in jail tend to talk amongst themselves and exchange information amongst themselves.  Some of the inmates are newbies, i.e., those guys who are new at being locked up.  Some others are veterans at the game.  They’ve been there and done that.  Some of these pros think that they have figured out the entire system from the inside, and they care to share their knowledge and wisdom with their comrades.  These pros are often referred as “jailhouse lawyers.”  One of the most popular half-cooked half-truths promulgated by such jailhouse lawyers is the proposition that prosecutors always make three plea offers, where each new offer is always better than the previous one.

It is another regular day at our law firm.  My client has been in jail for over six months now.  I walk into my cubby hole and find a letter from the prosecutor assigned to my client’s case.  It is a plea offer.  I quickly glance at it and say to myself, “It’s not bad.”  Dutifully, I make a trip over to the county jail that afternoon and present the prosecutor’s plea offer to my client.  My client looks at it closely without saying anything for a while.  He put it down on the table and says, “It’s not bad.”  I chime in, “Yes, it is a very reasonable offer.”  My client says, “No, I am not going to take it.  That’s only my first offer, right.  I’ve got two more coming.  I am not going to take it.”  Now somewhat frustrated, I rejoin, “Mr. Loverboy, what makes you think that you will get two more offers?  There is no such thing as a three plea offer rule.  It’s a myth.  It’s a falsehood.  It’s a lie.  There is no such rule.”  My client responds with a wry smile on his face, “Mr. Paul, Do understand this is not my first rodeo.  I have been through the system a few times.  I know how it works.”  I respond, “Mr. Loverboy, yes, I am very well aware of that.  That is exactly the problem.  Because you have been through the system once too many times, do you understand that they can indict you as a habitual felon if you reject this plea offer?  You understand what that means, don’t you?”  My client is firm in his response, “Mr. Paul, if you think you cannot handle it, just withdraw from my case.  Otherwise, go tell that prosecutor that I ain’t taking it.”  I run into the prosecutor on the following day, and I inform the prosecutor what my client’s decision is.  The prosecutor does not appear nonplussed.  He is actually as pleasant as he can be to me, and says, “Please tell Mr. Loverboy that I will get his case scheduled for trial next month.  That will give me enough time to indict him as a habitual felon.”  I am thinking, “Oh, shit ….”

Now, a question arises: why do so many of our clients believe that prosecutors make three plea offers?  Where does that belief come from?  Not having been outside the cave, just looking at the shadows move and dance, it might appear to a person that prosecutors, at least sometimes, rigidly follow this so-called three plea offer rule.  Let us continue with our story with Mr. Loverboy.  A few days after my meeting with the prosecutor, I go back to my client and deliver the bad news to him.  My client seems unmoved.  I go on to explain, “Mr. Loverboy, when we reject a plea, we are not playing games.  When you reject a plea, you have to be sincere and you have to be prepared to go to trial with all the risks that come with it.  If you try to game the system, you will most likely end up regretting it.” My client looks at me blankly and says, “I understand.  I am ready to take this case to trial.”  I rejoin, “Good, Mr. Loverboy.  Yes, we are going to prepare.  We are going to prepare tight and we will go to battle.  You and I are on the same team.”  Now, I start preparing for the trial in earnest.  I read every page of the State’s discovery.  I read every word on each page of the discovery.  I start thinking about how to attack the State’s theory — from any and every angle.  I begin to see that some of the State’s evidence might be subject to suppression due to law enforcement’s violation of my client’s constitutional rights.  I file motions to suppress and motions in limine.  I start interviewing some of my witnesses.  I try to reach out to some of the witnesses on the State’s witness list.  I start hearing rumors that some of the State’s witnesses have gone missing …

Having been in this business for a while, I am well aware that state prosecutors are overworked and tend to have a huge caseload (i.e., several hundred felony cases) to deal with on any given day and that prosecutors, for that reason, start really delving into the facts of a case only after the defendant in the case has rejected a plea offer.  I am also aware that when a prosecutor starts preparing for trial in earnest, that’s the first time that he or she becomes aware of some of the strengths and weaknesses in their cases.  I start preparing for trial in earnest from my end.  I start seeing some issues with the State’s case.  I start seeing some cracks in the State’s theory.  Then, I know that the prosecutor at the other end, too, starts seeing the same cracks in the Hadrian wall that I am looking at.  About a month into my trial preparation, I receive another letter from the prosecutor.  It is a plea offer — in fact, a second plea offer.  The terms of this offer are considerably better than the terms of the last one.  I am elated.  I feel like we have already won.  I run over to the county jail and proudly present the second plea offer to my client.  My client looks at the piece of paper the offer is written on long and hard — quietly.  He looks up and says, “I ain’t taking it.  Tell the prosecutor to get ready for trial.”  All of a sudden, I feel that my blood pressure rises, and I find myself yelling at my client, “What’s wrong with you, Mr. Loverboy?  This is an excellent offer.  You must consider accepting it.  If you let this one go, you might very well go to trial as a habitual felon.  If anything goes wrong, the chance of which is plenty, you would be looking at a long prison sentence at the end of the trial.”  My client is not moved.  He is firm and blunt, “Go tell the prosecutor I ain’t taking it.”  I am walking out of the interview room shaking my head side to side, but I still repeat to myself my battle mantra, “Knucklehead clients make a better trial lawyer out of me …”

Time is flying.  So many things to do.  So many things to read.  So many people to interview to get ready for trial.  I feel psyched.  I feel nervous, but I also feel that I begin to see more and more cracks in the enemy lines.  I also hear rumors swirling around about the State’s key witness having gone missing.  If God smiles on us, we will have a fighting chance.  I look through my mailbox every day, secretly hoping to find another plea offer from the prosecutor, the third plea offer that is supposed to be better than the second one.  No such offer ever arrives.  Instead, one day I find a stack of papers that are indictments indicting my client as a habitual felon as to each and every existing charge.  Finally, the first day of the trial arrives.  I briskly walk into the courtroom.  I take in a quick survey of the familiar cast of characters — the judge, clerks, bailiffs, prosecutors, and defense attorneys.  I feel that my throat is parched.  Yes, game day.  Shortly after I sit down at the counsel table, the prosecutor wants to speak with me in the back hallway.  I am thinking, “Now, what?”  This prosecutor is known for his gift of gab.  Somehow today he seems to have trouble speaking.  He says to me awkwardly, “Paul, I am willing to dismiss all felony charges against your client.  Will he plead to two counts of misdemeanors?  I will agree to time served.”  I sense a voice inside me speaking as loud as it can, “Paul, yes, we’ve won!  We’ve won!  We’ve won!  You’ve crushed them!”  I maintain a bland and straight face, though.  I say to the prosecutor, “Sure thing, Kenn. I will speak with my client and find out what he has to say.”  Now, the client looks straight into my eyes and says, “Mr. Paul, what did I tell you?  Try to have more faith.  Three plea offers, right?  I am going home today.”  I don’t want to argue with him now.  I don’t want to insist that there is no such a thing as the three plea offer rule.  Let’s just enjoy the moment.  The plea is accepted, and my client is released from custody.

Not all of my cases get resolved along the lines of the Loverboy case.  In fact, in more than a half of my cases, things develop along a very different trajectory.   I receive a plea offer from a prosecutor.  I present the plea offer to my client.  My client rejects it, invoking the three plea offer rule.  Soon thereafter, the prosecutor schedules the case for trial.  I prepare like hell.  The prosecutors prepare like hell.  We go to trial and do battle.  And then the jury goes out to deliberate.  The longest and toughest hour of the trial.  I don’t say a thing.  I just repeat my prayers.  I can hear my heart pounding like drum beats.  On some of these occasions, the jury comes back and returns verdicts of not guilty on all or nearly all of the charges against my client. Then, there will be many whispers of thanks to God, heartfelt handshakes and hugs, and tears of joy.  On some other of those occasions, the trial ends up in a fiasco, and my client receives an unthinkably long prison sentence.  Of these moments, I remember that each time the clerk reads aloud a verdict of guilty as to this charge or that charge, I feel like being stabbed with a sharp knife right in the heart.  Of those moments, I remember the soft sobbings of some of the client’s family members in the audience.  Of those moments, I remember walking out of the courtroom thinking that I have failed the client …

I know I will go visit a client at the county jail tomorrow, next week, or next month, and present a prosecutor’s plea offer to the client.  I also know that some of those clients will reject the plea offers extended, invoking the three plea offer rule.  I also know that I will be arguing with them, telling them passionately that there is no such a thing as a three plea offer rule.  I will most likely say to them, “Mr. Robberboy, if there were really such a thing as a three plea offer rule, prosecutors too must know about it.  They also must know that you too have heard about it.  Then, they also must know that you will reject their first and second offers, no matter what.  Then, what incentive would a prosecutor have to make any plea offers at all, when they knew for sure that those offers would not be accepted …”  I know I will be walking out of an interview room, shaking my head and thinking, “Why are these people so irrational?”  But, upon reflection, a thought flashes across my mind: Is it possible that these inmates at the jail really know, deep down, that there is no such a thing as a three plea offer rule, but that they still make use of this fiction to their advantage? Indeed, it’s possible that these inmates might be invoking this three plea offer rule because they always want an offer better than the one in front of them.  Indeed, it might be that they are the ones with an understanding and that I am not.  If you are going to reject a plea offer, it will be imperative to tell yourself loud and clear that there is another one coming shortly and that that one will be better than this one, won’t it?