Ethical Plea Negotiations

1. Ethical Plea Negotiations Doug Aaron Manchester, Tennessee

2. Plea Negotiation Statistics • Criminal defendants in State court are more than 20 times more likely to plead guilty than to go to trial. • In Federal court 86% of criminal defendants plead guilty, while only 4% opt for trial.

3. Imbalance of Information • Two criteria increase the imbalance of information in favor of the prosecution: • Seriousness of the offense • Amount of time since crime charged

4. Imbalance Favoring Defense • Crimes that are less serious (DUI?) • Sessions Court resolution • Rotating Prosecutors • Arresting officers not present • Recently charged crimes • Information not verified • No formal investigation • Inconsistent prosecution

5. Rule 1.7 CONFLICT OF INTEREST: GENERAL RULE • (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: • (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and • (2) each client consents in writing after consultation. • (b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless: • (1) the lawyer reasonably believes the representation will not be adversely affected; and • (2) the client consents in writing after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved. • (c) A lawyer shall not represent more than one client in the same criminal case, unless • (1) the lawyer demonstrates to the tribunal that good cause exists to believe that no conflict of interest prohibited under this Rule presently exists or is likely to exist; and • (2) each client consents in writing after consultation concerning the implications of the common representation, along with the advantages and risks involved.

6. Rule 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR • The prosecutor in a criminal matter: • (a) shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; and • (b) shall make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; and • (c) shall not advise an unrepresented accused to waive important pretrial rights; and • (d) shall make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, shall disclose to the defense and, if the defendant is proceeding pro se, to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and • (e) shall • (1) exercise reasonable care to prevent employees of the prosecutor’s office from making an extrajudicial statement that the prosecutor would be prohibited from making under RPC 3.6; and • (2) discourage investigators, law enforcement personnel, and other persons assisting or associated with the prosecutor in a criminal matter from making an extrajudicial statement that the prosecutor would be prohibited from making under RPC 3.6; and • (f) shall not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a client or former client unless the prosecutor reasonably believes: • (1) the information sought is not protected from disclosure by any applicable privilege; • (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and • (3) there is no other feasible alternative to obtain the information.

7. Rule 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR • The prosecutor in a criminal matter: (d) shall make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, shall disclose to the defense and, if the defendant is proceeding pro se, to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and

8. Prepare Before Court • Should the case be continued? • No BAC results back from TBI yet. • BAC less than .08, but no blood toxicology results back from TBI yet. • Hospital blood case, but blood no subpoena issued • Attorney recently hired and has a conflict with scheduled date. • “Other” legitimate reasons to continue.

9. Prepare Client Before Court • Client must be honest about prior criminal record, especially prior DUI’s – all of them! • Client must be honest about where he or she had been, what they had to eat and what they had to drink. • Client must provide honest and accurate medical history. • Client must provide honest and accurate dental history.

10. TBI BAC .08 or Greater • Call TBI. Speak to the agent who performed the analysis. • Get the third and fourth decimal places for the result. Inquire about what they mean. • Inquire about margin of error (the one TBI concedes) (.06 or greater 5% / .05 or lower 20%). • Ask questions, even if you already know the answer.

11. TBI BAC .08 or Greater • Keep a record of what the TBI agent tells you. • Ask what their testimony would be at trial. • Make notes about agents you speak with (evaluate their credibility). • Compare notes with other attorneys. • “All TBI agents are honest. Some are just more honest than others.”

12. TBI BAC .08 or Greater • Have a private analysis done.

13. BAC Less Than .08Negative Toxicology • Client over 21? Double Down. • Client under 21? Underage DWI. Diversion. • Non DUI resolution.

14. BAC Less Than .08Positive Toxicology • Is the identified substance an impairing substance? • Is the identified substance a scheduled drug? A legend drug? • Is the identified substance an active drug or an inactive metabolite? • Call the TBI agent that did the analysis. Inquire about their opinion. • Use Winek’s Blood Level Date 2001 (TBI does).

15. BAC Less Than .08Positive Toxicology • Get to know a pharmacist. • Get to know a toxicologist. • Take a complete medical history. • Get documentation on prescription history.

16. Study SFST’s Extensively • Buy the NHTSA manual. • Take the NHTSA course(s). • Learn what tests are standardized. • Learn what tests are validated. • Learn what tests are not tests at all, just techniques. • Learn the accuracy of the validated tests. • Learn that SFST’s are just 33% of the puzzle.

17. Know your Judges • Do they follow the law? • Do they follow proper procedure? • Do they rubber stamp? • Intimidated by expert witnesses? • Do they read the local newspaper? • Do they sentence more than the minimum?

18. Distill it Down “It’s not what you learn. It’s not what you know. It’s how you take that information and distill it down to make it work for you. You’ve got to connect the big dots.” Gene Simmons