CriminalImmigration

Plea Bargaining in Criminal Cases

Okay! Man you got toped to the prosecutor, you get your—you get your recommendation, you get your recommendation from them, you got your client, you present it to them. Do not tell them to ask to take the offer, do not tell them if he doesn’t accept the offer, you’re going to withdraw, don’t tell them! You should have accept the offer you’re going to withdraw because its fine and you want him to, don’t tell them he has to accept the offer because he only have to serve anything less than the total number of years that he sentenced. Don’t tell them they’ll have to serve only a portion of his sentence and don’t forget about telling them about the 3G offenses.
Here’s what I do, I say “He can accept the offer ”, if he accepts the offer, you can guarantee the outcome. He can reject the offer and go to trial before jury on guilt innocence. If he’s convicted he can also go to that jury for punishment. I can’t tell him what’s going to happen in that and the 3rd one is, he can reject the offer and go to a trial before a judge and be sentenced before a judge. I have no control over what’s going to happen.

I can’t make the decision for him; I will not make that decision for him so on and so forth. That’s where you handle it, let him make the decision. Well what will happen 90% of the time, what do you think ought to do, are you asking my legal opinion? I cant give that to you! I don’t have a legal opinion on what you ought to do. My personal opinion is “I’m not a gambler!”. If you want to gamble, I’ll give you my best shot for you but that’s all I can do. I’ve told you what your risks are as long as you understand, they were shooting dice, we might get 7, we might get craps, you never know. But the other side of that coin is, is they say well you think I got to 50% chance of winning. Don’t ever tell them that! Don’t ever tell them that! I know how is the shot, it’s a good one, bad one, well handle it, but it’s his decision, not yours. The other thing that you want to do and I’m running out of time, the other thing that you want to do is you want to beware of well… we have in Abilene, I don’t know if y’all have it where you practice “Jail chains”. I don’t get called on jail chains anymore.

And the reason I don’t is because they would have me try to represent 10-15 people on a morning and when you go on a jail chains, usually misdeamenor court and they have been in jail for a week or so, they’re just wanting to get out jail. What I have found is in these jail chains so often they have what are known as “Charges in other jurisdictions, motions to revoke, probation, motions to adjudicate, defer to adjudication or even charges say in another county” and if you plead them for the plead them there, then what you’re doing is you’re setting them up for a slam dunk for the rest of it and so the 2 County court law judges don’t like me to handle jail chain because I go over on 10 and I might plead 2. Because I’m telling them “You don’t want to plead on this because it’s going to be a slam dunk!”

Now I’ll talk a little bit for a close out and I’ll try to hustle up here. About difficult or uncooperative clients, you should always keep your client advised of everything that you do. You should always have him sign any document that you file. Makes him feel like, he’s a part of the deal. You should also interview your client thoroughly and any witnesses that he claims or ain’t important to his case. He might always… you should even subpoena them, there a lot time that I have not subpoenaed the witnesses that my client wanted was when he wanted like I what I wann-a Dick Chainy and president Bush or something like that, I don’t do that kind of stuff. Just because you subpoena them, doesn’t mean that you have to use them, if he won’t follow your advice, try to get him to sign something saying “You won’t follow your advice” If he won’t sign it, back it up with a letter!

Keep a record on your court appointments of your time and expenses. If you want to get paid by a judge for more than what you know there’s just a… the goal and deal is “ automize what you do”, the judges need that. The judges feel responsible to the county commissioner for the money that they spend and if you’ve got justification, you’ve got just, don’t pad it, don’t pad it!

The other thing is, don’t let your client of using custody language there without any word from you. I’ve got a formal letter in here that you can send to “Dear Mr. Jones, nothing new is happening on your case”. I’ll be out to talk to you when it does. I don’t even say… I just tell my secretary “Send number 41”. I don’t even sign it, as you got a stamp on my signature. Believe me, half the complaints I get from potential clients or pre-clients of previous lawyers is their client never communicated with them.

Now! Another couple of things that you ought to think about doing, some of our judges out in West Texas will actually put your client under oath when he pleads. If they, if your judge didn’t do that, ask the judge to do it and I’ll tell you why, if he’s under oath when he enters his guilty plead, that waves an awful a lot for the future.

I’m running out of time, I won’t, I don’t want to keep you off from lunch but I want to tell you one last story. I had a client in a town, close to Avaline small town and I’ve been there on an adoption and the judge was a good friend of mine, I finished up my adoption and the judge asked me if I’d hang around, I thought he want to have coffee or something because we’ve been friends for years, I said “Sure” so I sittin’ out there in court room and all sudden here comes 6 deputies leading this African American fellow in belly chains leg irons belt, 6 deputies. Mr. Wilson would you mind coming up here a moment, I said “Sure” so I walked up there and said “This Mr. so and so, he said im going to appoint you to represent me” I was the 5th lawyer who’d been appointed! This guy was a lawyer’s nightmare, absolutely horrible.

He’d filed 61 “pro se motions”, none of which were good. Any way the reason I am going to tell you this story because you might think, you might have a situation where you might need to do this. My client was burglarized in this house just outside the city and while he was burglarized in this house, the lady of the house came home and he decided—well since he was burglarized in the house, he just have him a little sex with this lady so he raped her. Big problem! This was the Sheriff’s home [Audience Ohh], he raped the Sheriff’s wife [Audience ehmm] in a small County.

Well! Needless to say, I had a lot problems with the investigation on the case. I’ve made that judge hear every one of my client’s 61 pro se motions. I covered everytime I went to see my client, they striped search me. The way I conducted the trial was… we began, he entered a plea of not guilty, we no excuse me we began with a voir dire, after I completed the voir dire, I cleared the court room, put my client on the witness stand and I said “Mr. Jones! You heard me conduct the voir dire, did I ask all the questions you wanted me to ask? Yes! Any questions I didn’t asked that you wanted me to? No! it went through it”, I did that after every witness, every cross, it was about a two and a half day trial that lasted almost 7. I feel like I did a pretty good job on it, the jury been out about 8 hours on guilt or innocence and the DA was worried about it and my client was a 2 time loser.

It only been out of penn for about 8 months at the time, he came to him and offered him 20 years, my client said “Absolutely not!”and about an hour or later they found him guilty. Then we went into punishment and we had very little and but I did the best that I could with what I had and we eneded up with a jury out about two and a half hours on punishment. Prosicuter got worried again, came to me and I offered us 25, I go to my client absolutely not. Within 10 minutes of my client turning that down, we got that note from the jury that everybody that sends chills up your spine which is more? 99 or life ? and he got life. The reason I am telling you this story is that was in 1991 and just this last week I got another rip.

So you need to cover your butt, it doesn’t take time, most of you I am sure most of you have secretaries or you do your own work, you get forms. I’ve given you the forms, cover yourself, document what you do because it cant come back to bite you and there a lot of amount there. Thank you all very much, if I can ever help, don’t ever hesitate to give me a call.

Francisco Hernandez

Author Francisco Hernandez

More posts by Francisco Hernandez