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?


“Britny’s Law” Set to Expand 1st Degree Murder Beginning in December

On July 11, Governor Cooper signed into law a bill known to the public as “Britny’s Law,” which adds “domestic violence homicide” to the current statute laying out the requirements for first degree murder.  The bill was named for and passed in response to the case of Britny Puryear, a 22 year old Fuquay-Varina woman who in 2014 was shot and killed by her live-in boyfriend who was also the father of her child.

The current statutory framework for murder in North Carolina is codified in N.C. Gen. Stat. sec. 14-17.  In this state, as in many other states, murder is divided into first degree and second degree, with the more serious first degree allowing for stricter sentencing (possibly even the death penalty) than second degree.  The difference between these two crimes deals primarily with the defendant’s mental state: specifically, a person is considered to have committed murder in the first degree when they acted willfully, deliberately, and with premeditation.  In other words, a person has committed first degree murder when they actually planned to kill another person and reflected on doing so (killing in cold blood).  Felony murders (murders committed in the course of the commission of a felony enumerated in the statute, such as robbery, kidnapping, etc.) also fall into this category. All other murders (except for those committed in the course of the enumerated felonies in sec. 14-17(a)) are treated as murder in the second degree, and are considered to be malice killings.  The difference between the premeditation/deliberation of first degree and the malice requirement of second degree is that a person acting with malice did not necessarily intend to kill the victim, but rather acted with such reckless disregard for human life that any reasonable person would have recognized that their actions were likely to lead to the death of another person.

Under Britny’s Law, which will take effect on December 1, a new subsection of 14-17(a) will allow for a new type of first degree murder charge: domestic violence homicide.  Under the new law, a homicide defendant who is or has been in a romantic/sexual relationship (marriage, children in common, dating partners, etc.) with the victim, and has also in the past been convicted of a domestic violence offense against that victim, will now have to overcome a rebuttable presumption that they acted with premeditation and deliberation in committing the homicide.  This effectively places the burden on those defendants to prove to a jury that they did not have the requisite mental state necessary for a first degree murder conviction.

While domestic violence cases such as the new law’s namesake illustrate why society may find broader murder laws (and thus stricter homicide punishments) to be desirable, the new law may nonetheless potentially face constitutional scrutiny when it is eventually applied in a real criminal case.  Under the United States Constitution, a person may not be convicted of a crime unless a jury is convinced beyond a reasonable doubt that they have committed the crime charged.  Thus, the State in any criminal prosecution has the burden of proving that the defendant is guilty.  The courts over the years have interpreted this framework to mean that new laws may not go so far as to ease this burden for the State or to require that a criminal defendant be forced to essentially prove his innocence.  In making such a determination, courts have typically drawn a distinction between new laws allowing a permissive inference by the jury (the jury may consider the information as evidence of guilt or an element of the crime charged), and a mandatory rebuttable presumption, in which the jury is required to consider the defendant guilty or that a particular element has been met unless the defendant effectively rebuts that evidence.

While it is currently too early to tell, it seems possible that this law could be found to be unconstitutional on the grounds that, where a defendant meets the requirements under this new law, that defendant effectively has to prove to the jury that he did NOT act with premeditation and deliberation, thus forcing him to prove his innocence (with regard to his mental state in committing the act) and as a result easing the State’s burden in prosecuting the case.  However, some case law does exist to the contrary (such as where the evidence is not contradicted and the presumption is considered to be “unerringly accurate,”), so at this point the constitutional status of Britny’s law is still uncertain.  What is certain is that over the next few years this new law will be an interesting topic of debate in legal circles.

– Johnathon Naylor

What does “Presumed Innocent” really mean in front of a jury?

by Paul Castle

Yes, the burden of proof for the government in a criminal trial is ‘proof beyond a reasonable doubt’.  Yes, the law says that you are presumed innocent unless and until you are proven guilty.   But the problem is, it is not some omniscient being called ‘the law’, but twelve men and women from the community called ‘the jury’, who renders the verdict.  So an important question to ask is, ‘Do jurors really presume a criminal defendant to be innocent unless and until proven guilty?’

I always tell my client before a jury trial that a jury trial is an art, an art of persuasion, not a science.  In a football game, referees would bring out a tape measure to the field to ascertain whether the distance covered was exactly ten yards or not.  If it was nine point 3 yards, it would not be called ‘first down.’  In other words, things are precise in football.  Things are not quite like that in a jury trial.  There is no yard stick or tape measure that juors can use to determine whether the evidence presented was proof beyond a reasonable doubt or not  There is no electronic gauge or device that jurors can rely on to determine whether they are persuaded only up to the ‘more probable than not’ standard or whether they are really persuaded beyond a reasonable doubt.

However strong or however weak the evidence might appear to you or me does not matter.  However weak or flimsy the government’s case might seem to you or me, the jury might still find the defendant guilty.  By the same token, however strong or overwhelming the government’s evidence might appear to an outside observer, the jury might still return a verdict finding the defendant not guilty.  In any given case we cannot tell in advance what will make the jury tick. We cannot know in advance what will make the jurors reach an unanimous decision in one way or the other.  In the end, whatever it might take to convince the jurors to vote in your favor, that is the only thing that matters.  That’s why I frequently tell my clients that if you want to win, the jurors will have to like you.  If they like you, they will find a way to help you.  They will find a way to find you not guilty, no matter what the evidence might be.

Some of my clients would tell me that since a defendant are presumed innocent in a criminal trial, they would just like to sit back and make the government prove their case.  I would tell these clients that they would most likely lose their cases if this was their attitude.   I would gently advise them that in reality they are not presumed innocent unless proven guilty.  I would tell them: the moment that jurors find out that you are a criminal defendant charged with such and such offenses, the jurors almost immediately believe you are guilty.  The moment the trial begins, you are guilty, not innocent, in the minds of the jurors.  The pendulum is all the way up in the guilty section.  And we, the defense, have to chip away and chip away at the government’s evidence as the case progresses.  We have to try to bring the pendulum back to the ‘not guilty’ section, little by little.

We can, and you can, bring the pendulum back to the ‘not guilty’ section only if you go in with the attitude that you are going to prove your case, with the attitudee that you are going to prove your innocence.  The legal standard that you are presumed innocent until proven guilty is a fiction that is not going to help.  Don’t rely on a legal fiction.  Rely on yourself.  Go in there and do everying you can to prove your innocence.  Then, the jury will help you.

When do the Miranda Rights kick in?

Frequently, my clients would tell me during a consultation that they were not read their rights during their interaction with law enforcement.  They would usually be quite upset when they would tell me about this.  And they would nearly always go on to ask, “Shouldn’t they dismiss my case?”  Nearly always, my answer would be, “Not so fast.”

One of the first things we learn in law school is that one’s right to the Miranda warning kicks in when one is subject to custodial interrogation.  A paradigm example of a custodial interrogation is something like the following:  you get arrested; you are then taken to a police station; and you are then confronted with officers who ask you a bunch of questions about an incident they are investigating.  In other words, your Miranda rights or your right to a Miranda warning do not get triggered unless you are first in custody and unless you are subject to questioning by officers under those circumstances.

Let’s suppose that you are pulled eneover by an officer for a traffic violation.  The officer now tells you that he can smell the odor of marijuana emanating from inside your vehicle.  The officer then asks you, “Did you recently smoke marijuana inside the car?”  Under that scenario, you are, technically speaking, being detained for investigative purposes, not arrested.  So your Miranda rights do not kick in.  And the officer does not have to first read you the Miranda rights before he starts questioning you.  Of course, the line between being arrested and being detained is not always cristal clear.

Now let’s imagine a situation where your Miranda rights are violated.  Suppose that you get arrested, you get taken to a police station and then you get subjected to questioning by officers without first being given the Miranda warning.  Let’s further suppose that you get charged criminally after such custodial interrogation.  Does this mean that your charges ought to be dismissed entirely because your rights were violated?  Not so fast.  In general, the only remedy you can obtain from the courts where your Miranda rights are violated is that any statement or statements you made to law enforcement in violation of your Miranda rights will be suppressed.  That is, law enforcement will not be allowed to use whatever statement you made in violation of your rights at trial against you.  However, the criminal charges themselves remain in place, and all the other evidence also remain in place.


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