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PLEA NEGOTIATIONS IN LAS VEGAS AND CLARK COUNTY

Most criminal cases don't go to trial but instead end with some sort of plea negotiation entered into by the defendant and the prosecutor. Some people call this "working out a deal" or "pleading guilty to lesser charges." In this article I will describe the basics of plea negotiations in criminal cases, particularly in Las Vegas and Clark County courts, and explain how a defense attorney can help get the best plea deal possible for his client. The first two sections are more general and philosophical, so feel free to skip those and jump to the "Types of Pleas" section below if you want to learn more about the practical side of plea deals in the courts of Las Vegas and Clark County.

WHY MOST CRIMINAL CASES END WITH PLEA DEALS

People who study negotiation theory use the term BATNA ("best alternative to a negotiated agreement") to signify what happens if the parties who are negotiating a deal fail to reach an agreement. In a criminal case, the BATNA for both sides is simple: go to trial.

However, very few criminal cases actually go to trial before a judge or jury. Some sources I've read estimate that only 2 percent (1 out of 50) of all criminal cases go to trial. Why is that? How is it that most of the time, the defense and the prosecution are able to come to a plea agreement?

First, going to trial is risky—for both sides—because neither party can ever be sure how a trial will turn out. Even the strongest cases can fall apart at trial. But on the other hand, many innocent people have been found guilty by judges and juries who chose to ignore weak evidence and substantial doubt. A plea negotiation is, at its core, a compromise between the parties. The defendant wants all the charges dismissed and the prosecutor wants a conviction on all counts, so a plea to reduced charges—the most common type of plea deal—is an outcome that neither side is fully happy with, but both sides can live with. The alternative is, in most cases, too risky for defendants and prosecutors.

Second, most cases negotiate because prosecutors and courts simply don't have the time or resources to try every case. As busy as the courts are today, with the vast majority of criminal cases ending in plea deals, the court system would come to a complete standstill if even half of all cases went to trial instead of negotiating. For example, Las Vegas Justice Court hears misdemeanor bench trials and felony preliminary hearings. Several of these hearings are set on the court's calendar on any given weekday. A preliminary hearing may last as little as 20 minutes, but can sometimes stretch on for hours—or even days. The court can easily accommodate one or two hearings per day. The court can fit in a half dozen, albeit begrudgingly. But if 10 matters are not negotiated on a given day and end up going forward, no one, including the judge, is going home until late in the evening. No one wants that. This is why many judges will, to greater or lesser degree, encourage plea negotiations.

In the same vein, the District Attorney doesn't have enough prosecutors to prepare for and try every case, or even a double digit percentage of all cases. Prosecutors have to work long hours to prepare for trials, and during the days when they're actually trying the case, they can't really work on other cases because they just don't have the time.

The bottom line is that most cases are going to end with plea negotiations because neither party wants to risk losing everything at trial and because the courts and prosecutors don't have the resources to try every case. Given that most criminal cases will settle, a criminal defense attorney must devise strategies to get the best deal possible for his client.

PLEA NEGOTIATION STRATEGY

Generally speaking, many people have poor negotiation strategies. Some people make demands that are unreasonable and negotiations break down. Other people give away too much to their opponents. Both approaches might be explained as a personality flaw of the negotiator. Too aggressive versus too passive. But in many instances people choose poor negotiation strategies because of a lack of knowledge. Why? Because good negotiation is rational. If you can convince your opponent that a negotiated outcome is right (strategically, not morally) then you will usually get what you want.

In criminal defense negotiations, knowledge is very important. What must a criminal defense lawyer know? Many things. To start, it is critical that a defense lawyer know the facts of the case and the relevant laws of the jurisdiction in as much detail as possible. Sometimes this is enough to get a favorable plea negotiation. If I know more about the facts and law than the prosecutor I can point out the weaknesses of the case. This creates doubt about the verdict at trial, and suddenly a more favorable plea deal is offered.

But knowledge of facts and law is not enough. Knowing the facts isn't worth much if you don't know how strong the potential evidence is. Like it or not, our court system is not so much about what is true, but what you can prove. If the likely evidence will support a finding of guilt at trial, then the defendant and his lawyer are in a relatively weak position for plea negotiations. If the likely trial evidence is lacking in any way, however, the defendant enters negotiations from a position of strength. Evaluating the potential evidence requires analysis of both law and facts. As a criminal defense attorney, I have to determine who the witnesses are, what their likely testimony is, how credible they are, and what corroborating evidence is available to support that testimony. Just as important, I have to determine how likely those witnesses will be to show up at trial. Also, I have to know the rules of evidence in great detail, because helpful testimony is not always admissible testimony. For example, an incriminating hearsay statement doesn't make the defendant's case weaker because the jury can't hear it.

An effective criminal defense plea negotiator must also be familiar with the courts he practices in and the people he practices with. In other words, he must know the prosecutors and the judges. Why is this important? Judges rule differently, both for evidentiary purposes and sentencing purposes. These two factors can greatly affect a criminal defendant's likelihood to win at trial and the potential risk if he loses. For example, one judge might give you probation if you lose at trial, whereas another will send you straight to prison. You might think such variation in sentencing is unfair. I don't disagree, but this is the reality we live in, so knowledge about the sentencing judge is important to plea negotiations in criminal cases.

Prosecutors also respond to different strategies and arguments. At any given time, your case primarily will be in the hands of one single prosecutor. He may represent the Clark County District Attorney or the Las Vegas City Attorney, but he's still ultimately just one guy, with his own strengths, weaknesses, and beliefs. And he usually has a certain amount of discretion in how cases are dealt. And if he doesn't have any discretion, then someone else does, and that's the person to talk to. So knowing the prosecutor is very important in plea negotiations.

Knowledge of alternative sentencing options is also critical for plea negotiations, and it is often necessary to make a favorable negotiation happen when the prosecutor won't budge. Let me explain what I mean by that. In any given case, a plea negotiation is going to involve some court-ordered "punishment." This could be paying a fine or doing community service on one end or going to prison on the other. Sometimes what saves the negotiation is knowledge about various sentencing alternatives that are available given the charges and the court you're in. Oftentimes, the prosecutor has made his best offer. He won't make a better offer. But while he may not make a better offer, but he still may make an offer that is different (but not really better or worse). Let's say the prosecutor agrees to dismiss a certain charge if the defendant completes anger management and pays a fine. The defendant doesn't have money for a fine and doesn't want to sit through anger management class. So we propose an alternative. The defendant will complete community service instead of paying a fine or doing the class. Another example: let's say the prosecutor is asking for jail time. We can offer to pay a higher fine or do house arrest instead. Or what if the prosecutor wants the defendant to plead to a misdemeanor with a small fine? We can offer to pay a slightly higher fine to have the charge dismissed, or agree to the same fine with a longer stay-out-of-trouble order, or community service instead of a fine. In another case, let's say the prosecutor wants the right to argue for prison. What about offering to stipulate to a suspended sentence with a longer period of probation? What about two gross misdemeanors instead of a category E felony, or if not that, one category D felony that drops down to a gross misdemeanor after probation. We can offer to do drug court, enter into a halfway house, or attend mental health counseling. The possibilities are endless. The bottom line is that many times when a prosecutor has made his "best offer," it's still possible to get him to agree to a proposed plea deal that is better for the client, so long as the defense attorney is willing to not give up and think creatively.

Some part of being a good criminal defense negotiator is based on the attorney's general skills and abilities. For instance, a good criminal defense negotiator must also have real skills as a trial attorney, because if there is no real threat that you'll go to trial and win, any implication that you and your client will walk away from the negotiating table will come off as a bluff. Similarly, a good criminal defense negotiator needs to know when a prosecutor is being unreasonable and how to respond to that. Although good negotiations should be reasonable, not every negotiator is. If the prosecutor adopts an unreasonable position, the defense attorney must be able to call him out in this behavior, and take whatever action is necessary to save the deal, if possible.

TYPES OF PLEAS

Most negotiated plea agreements are guilty pleas to lesser charges. But there are other types of negotiated outcomes to criminal cases. Read about these below.

Guilty Plea. A guilty plea is a negotiated plea deal where the defendant admits to committing a crime—usually a lesser offense. Specifically, the defendant must admit facts sufficient to sustain a conviction for the offense. The procedure for entering a guilty plea varies depending on the court and whether the offense is a felony or misdemeanor. After the guilty plea is accepted by the court, various sentencing recommendations may be made to the judge, who then imposes sentence. In misdemeanor cases this generally all happens in one day, whereas for felony cases, the process lasts months.

No Contest Plea ("Nolo Contendre"). With a no contest plea, the defendant doesn't admit to committing any crime or doing anything wrong. Instead, he is not contesting (i.e., not fighting) the charge. What's the difference between this and a guilty plea? Unlike a guilty plea, you don't create a factual basis for the no contest plea and you maintain your innocence. But the judge still finds you guilty and imposes sentence. You can only plead "no contest" in a misdemeanor case. An "Alford plea" is basically a no contest plea in a felony or gross misdemeanor case. The defendant makes a record that he is not admitting guilt, but that he wishes to accept plea negotiations to avoid a possibly harsher sentence following a trial.

Stayed Adjudication. A stayed adjudication is a type of plea deal that allows the defendant to avoid a criminal conviction and any possible jail time by agreeing to follow certain court orders. Although specific procedures vary between courts, the judge will have the defendant enter a plea (usually a "no contest" plea) and sentence him to jail time, but instead of adjudicating him guilty (i.e., instead of convicting him) the judge "stays adjudication," suspending the jail sentence and ordering the defendant to complete certain sentencing requirements, such as community service and fines and "staying out of trouble" while the case is pending. If the defendant completes these requirements, the charge may be reduced or even dismissed (depending on the negotiation). If the defendant fails, he will be adjudicated guilty of the original offense and the suspended jail sentence will be imposed. Stayed adjudication pleas are usually only available for misdemeanor charges.

Submittal. A submittal is the most favorable way of resolving a case short of a straight-up dismissal. A submittal is similar to a stayed adjudication plea. The difference is that with a submittal, technically you're not entering into a plea at all (i.e., you don't say "no contest") and there is not a suspended sentence. The idea is that you "submit" to the authority of the court on the charge and "stay out of trouble" for some fixed period of time (e.g., 6 months, 1 year, or some other period) or until certain court-ordered requirements are completed. Those requirements may include completing community service, paying a fine (characterized as "forfeiting cash bail" since technically you must be adjudicated guilty before fines can be imposed) and/or completing certain classes such as drug counseling or anger management. Generally, with a submittal, the criminal charge will be dismissed entirely rather than just reduced, so nothing will be on your record. While there is no suspended jail sentence with a submittal, if you fail to stay out of trouble or fail to complete the court-ordered requirements, the court can adjudicate you guilty of the criminal charge you've "submitted" on without a trial and find that you are in "contempt of court" and impose additional criminal penalties, including jail time. This information pertains mostly to Las Vegas Justice Court. In Las Vegas Municipal Court, a "submittal" is somewhat more like a stayed adjudication, as the court will impose a suspended sentence with a submittal and sometimes the charge is not dismissed entirely at the end of the case and is rather reduced to a lesser offense.

Drop Down. A drop down plea is similar to a stayed adjudication. However, in this variation, the defendant actually pleads guilty or no contest and is sentenced by the judge to complete certain requirements, like fines, community service, or classes. There will be a suspended sentence that will be imposed and an order to "stay out of trouble" and pick up no new criminal charges, either for a fixed period of time or until the other requirements are completed and the case is closed. If the requirements are completed and the defendant stays out of trouble, he may withdraw his guilty plea and plead to a lesser offense. This type of plea is available in misdemeanor, gross misdemeanor, and felony cases. In felony cases, the defendant usually pleads guilty to a felony, completes probation, and then may withdraw his plea and plead to a misdemeanor.

Plea in absentia. A plea in absentia is not really a different type of plea, but an option for out-of-state defendants to use in conjunction with any of the above types of pleas when they can't or don't want to make the trip to Las Vegas to resolve their criminal charges. Basically, a plea in absentia is just a written plea accompanied by a waiver of the defendant's presence at sentencing. A guilty plea can be oral or written. In Las Vegas Justice Court and Las Vegas Municipal Court, guilty pleas generally are going to be done orally with the defendant present in court, but for misdemeanor charges an out-of-state defendant can enter into a written "plea in absentia" (i.e., the defendant doesn't need to be present). I use pleas in absentia most frequently in DUI or other misdemeanor cases where visitors to Las Vegas have returned to their home states and wish to resolve their criminal charges without having to come back. In state District Court on felony and gross misdemeanor charges, the court requires that guilty pleas be written but that the defendant be present to enter the plea. However, the defendant's presence at sentencing can be waived in District Court in some circumstances.

Straight Up Plea. All of the above types of pleas involve negotiations with the prosecutor for a reduction of charges and/or the dismissal of some or all charges. A straight-up plea is different because it doesn't actually involve negotiation with the prosecutor at all. In fact, it indicates that a plea agreement could not be reached. This type of plea is rarely used, but a good criminal defense attorney should be aware of this as an option. When should a criminal defendant consider pleading straight up? Only when evidence of guilt is very strong and conviction at trial is all but assured, and when the defense attorney feels like he can argue successfully for a less harsh sentence than the prosecutor will agree to. In a straight up plea, the parties are not jointly recommending any sentence, so the judge will determine sentence after hearing argument from both sides. Here is an example. Let's imagine you are charged with domestic violence and I am your lawyer. We show up to trial and the alleged victim is present and is not recanting her statement. The District Attorney has a recorded statement where you admitted to slapping the victim. There are several independent witnesses who saw the entire incident, these witnesses show up on the morning of trial, and their testimony corroborates that of the alleged victim. I talk to the District Attorney to try to negotiate the case. They insist that we agree to do 30 days jail time. In this instance, we might consider a straight up plea, because I could probably argue to the judge that 30 days jail time is excessive. Again, these circumstances are rare, because most cases don't have evidence this strong, and the DA is not usually this unreasonable in negotiations.

THE PROSECUTOR'S ROLE IN PLEA NEGOTIATIONS

The Prosecutor never has to make any offer at all. But they almost always do. The reasons for this are mostly practical and explained above. The only time offers are not made is in very serious criminal cases, such as murder and sexual assault. Even in those cases, there is usually an offer to negotiate the case. Because the prosecutor never has to make an offer, this means that when an offer is rejected, the prosecutor might not make another one. In most cases, there will always be another offer, sometimes right on the eve of trial. Some felony cases and many misdemeanor cases are negotiated on the day of trial. I have had felony cases that have negotiated for misdemeanors when a jury is waiting outside the courtroom. Other times, cases may negotiate in the middle of trial.

But the criminal defendant and his attorney must always be cautious not to hold out too long, since the prosecutor doesn't have to make an offer, and certainly doesn't have to make a better offer. For this reason, rejecting reasonable plea negotiations is a risky game to play. For felony charges, some prosecutors will stick to their vow not to make a better offer once the case has made it past preliminary hearing to state District Court. Other times, a prosecutor will make a better (or at least the same) offer at or before the trial begins. This is why it's important to choose a criminal defense attorney who is used to dealing with the many prosecutors who practice in Las Vegas and Clark County courts.

THE JUDGE'S ROLE IN PLEA NEGOTIATIONS

No discussion of plea negotiations would be complete if it didn't include these words of caution: the sentencing judge is not required to follow plea negotiations. All of the above-discussed plea types, save the straight up plea, involve stipulated sentences. This means that the parties (i.e., the defense and the prosecution) are agreeing about the sentence. They are agreeing about fines, community service, suspended sentences, etc. But technically, the judge doesn't have to follow a stipulated sentence, may technically disregard the stipulations (which really only amount to "joint recommendations" of the parties) and sentence the defendant to any sentence allowed under Nevada law. In reality, however, judges almost always follow plea negotiations, especially in misdemeanor cases. For a full discussion about this topic, read my article on stipulated sentences.

Stipulated sentences are routinely used in Las Vegas Justice Court and Las Vegas Municipal Court, and it is rare for the judge to refuse to follow a stipulated sentence. But in Clark County District Court, for felony and gross misdemeanor charges, sentences are often left more open to the judge's discretion. Again, technically sentencing is always up to the judge, but in District Court, the terms of a guilty plea are more frequently contested at the sentencing hearing. Just how hotly contested the sentencing hearing will be depends largely on the terms of the written guilty plea agreement.

FELONY PLEA DEALS AND PROBATION

State District Court in Clark County handles more serious cases: felony and gross misdemeanor charges. The biggest question at a state District Court sentencing is going to be whether the defendant gets probation or gets sentenced to incarceration in jail or prison. There are three basic guilty plea variations that will determine the certainty/predictability of a particular sentence imposed by the judge. These variations have to do with what rights the prosecutor reserves for sentencing. These are right to argue, no recommendation, and no opposition (to probation).

Right to Argue. When the District Attorney retains the "right to argue," this means that at the sentencing hearing, the prosecutor may argue for any lawful sentence. This would include prison or jail time, fines, community service, and/or many other criminal penalties. Just because the prosecutor argues for a particular sentence doesn't mean the judge will follow it. In fact, the judge will often impose a less harsh punishment than what the prosecutor is asking. Keep in mind, when the prosecutor has the right to argue, so does your defense attorney. The state's right to argue may be full and unqualified, or it may be "capped" for certain terms—usually for any term of incarceration. For example, in Nevada, burglary is punishable by 1 to 10 years in a Nevada prison. If you plead guilty to burglary, and the judge decides not to give you probation, the judge may sentence you to 1 to 1.5 years minimum, up to 4 to 10 years maximum. If the District Attorney retains the right to argue, the DA might still agree to "cap" his argument at 2 to 5 years. Generally, when the DA agrees to cap his argument, the judge won't exceed that sentence, although there are always exceptions.

No Recommendation. When the District Attorney agrees to make "no recommendation," he agrees to stay silent at the defendant's sentencing and recommend no sentence to the judge. The defense attorney gets to argue for whatever sentence he wants, and the prosecutor says nothing.

A few caveats about the no recommendation plea. First, just because the prosecutor is silent, doesn't mean that a "victim speaker" can't show up and argue that the defendant should go to prison. Victim speakers are rare (and don't apply in many types of cases, like drug cases) but in cases where there might be a victim speaker, the prosecutor's offer to make no recommendation becomes less valuable.

Second, a "no recommendation" plea isn't always better than a "right to argue" plea. Often, the prosecutor is willing to trade off on certainty of sentence versus seriousness of the charge. So if the prosecutor offers a B felony (1 to 10) with no recommendation, he might be willing to do a C felony (1 to 5) with right to argue. Choosing which of these is the better option for the defendant requires careful analysis from an experienced criminal defense lawyer.

Third, a "no recommendation" plea doesn't mean that the defense attorney immediately gets what he wants. You must always remember that sentencing is up to the judge. If a defendant has several felonies on his record and the immediate charge is serious, the judge may sentence the defendant to prison time even if the defense attorney asks for probation and the prosecutor doesn't say anything.

No Opposition (to probation). When the prosecutor agrees to have "no opposition" to probation, this essentially becomes a "stipulation" or "joint recommendation" to probation. Again, the judge is not legally obligated to give probation, but almost always will. Some judges may even express on the record that they disagree with the deal, but then follow it anyway. Certain judges in state District Court are more likely to follow "no opposition to probation" guilty pleas than others. That is why you should hire a defense lawyer familiar with different judges and their sentencing practices. Keep in mind, when the prosecutor makes no recommendation as to incarceration/probation, he will usually retain right to argue for the terms and conditions of probation, and for the length of any suspended sentence.

No opposition to probation is a good negotiation if the prosecutor is willing to offer it, especially when the defendant has a record and/or the immediate charge is serious (i.e., in cases where the chance of incarceration is greater). But is "no opposition to probation" always better than "no recommendation" or "right to argue." No, not always. As I stated above, when negotiating the terms of a guilty plea agreement, the prosecutor will often be willing to trade certainty of probation for a more serious conviction. For example, let's say you're charged with burglary (category B, 1 to 10 years, probationable). The offer is attempt burglary, no opposition to probation, with a drop down to a gross misdemeanor upon successful completion of probation. I might counteroffer instead to plead to a conspiracy burglary (gross misdemeanor, maximum 364 days in county jail, probationable) with the prosecutor retaining the right to argue. I would make this counteroffer in circumstances where I thought the judge would be likely to give probation regardless of the prosecutor's argument.

Keep in mind, based on standard language contained in every gross misdemeanor and felony guilty plea in Clark County District Court, the prosecutor's agreement not to oppose probation is conditional. This means that the District Attorney can regain the right to argue for any lawful sentence under certain circumstances. Specifically, the prosecutor can argue for incarceration (or anything else) if the defendant picks up new criminal charges before his sentencing, doesn't interview with the Department of Parole and Probation, or fails to show up to his sentencing hearing.

No opposition to probation is just a stipulation for probation. When probation is not a realistic possibility (due to the defendant's record, the seriousness of the charge, or both), then it may be a good idea to stipulate to a minimum prison sentence. Again, an experienced criminal defense attorney will be able to predict the likelihood of probation versus prison and negotiate the plea deal accordingly with the prosecutor in his client's best interest.

HOW A CRIMINAL DEFENSE LAWYER CAN HELP

Plea negotiations are complicated. A good criminal defense negotiator must be well informed about the courts he is practicing in. He must know the facts, the law, the judges, the prosecutors, and his own client. He must be professional and polite with prosecutors, but not afraid to be assertive if a prosecutor is being unreasonable. He must be willing and able to go to trial if negotiations fail.

Most of my clients tell me they want their criminal case over as soon as possible, with as little hassle as possible, and without anything on their criminal record. In most cases, this means I will be entering into plea negotiations with the prosecutor.

I have successfully negotiated countless favorable plea deals in Las Vegas and throughout Clark County. Although I can't guarantee any particular outcome, in many cases I can negotiate a plea deal to avoid serious criminal consequences like jail or prison. In some instances, I can negotiate a case to avoid a criminal conviction so that my client's record remains clean. So whether you're charged with a misdemeanor or felony, in state, municipal, or federal court, I can help you.

People who call me with questions about criminal charges often tell me, within minutes of speaking to me, that they feel a sense of relief. Uncertainty about what is going to happen can cause massive stress and anxiety fro criminal defendants and their loved ones. I can't give you absolute certainty, and anyone who says otherwise is not being honest. However, if you tell me about your criminal case, I will very quickly assess your case and give you my opinion about what can likely be achieved through plea negotiations. My opinion will be based on my wealth of experience appearing in local courts. And I will give you straight answers.

If you are charged with a crime in Las Vegas or anywhere else in Clark County, Nevada, call me today at the number listed on my website banner. That number is my personal cell phone number. I offer free consultations to prospective clients and their families and friends. You can also send me a text message at the same number, or send me a message through this website. I take calls and respond to texts and emails on nights, weekends, and even when I'm on vacation, so don't hesitate to contact me.

By Michael Pandullo

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