When is a Plea Offer Final? Playing the Defense Game

'Cause baby it ain't over 'til it's over

                                                                                        Lenny Kravitz

In Court once we have a plea offer accepted on the record and then sentencing on that offense
there is no going backwards. BUT way before the plea is accepted there is room for improvement
in the offer. From the moment of your first court appearance everything you do
and do not do will have an impact upon your offer and your final outcome.

All Plea Offers are NOT Final Plea Offers

Sometimes prosecutors will let you know this is the final plea offer right from the get go. But not always and even if they say that, yes even if they say THIS OFFER IS IT, the judge can step up and say hey district attorney how about...

Judges Get Involved in the Plea Bargaining Process

Some judges are very hands on. They seek the justice that your client deserves. They often balance out a harsh (polarized) prosecutor. They don't want very single case resulting in a trial. In fact since most cases don't go to trial because trials are costly both in time, resources, and money judges will assist in settlement. Pre-trial conferences gauge both sides willingness to deal and to negotiate a fair outcome.

Looking for Friend in the Local Probation Department 

You know the whole phone a friend on the show "who wants to be a millionaire." Well we as defense attorneys look for a friend to help our client. Who can be our ally in the plea process: will the judge be reasonable or maybe our only hope for a level headed and reasonable plea offer if PROBATION.

New York State probation departments in general will look at a person's whole life. From the top to bottom, inside and out they will look to assess the whole of your arrest, and make an appropriate and fair recommendation for sentencing. And even though we can't always count on their generosity or kindness it is nice to know we can sometime have a friend in probation.

Probation writes a report. This evaluation and report can come either before or after the plea offer is accepted. This report can evaluate needs, make treatment suggestions, and finally weighs in on the plea offer and sentencing. For the most part probation will likely be a liberal determination based in rehabilitation and treatment. They tend to shy from moving straight to punishment and incarceration in most instances.  

So it all comes down to if the prosecutor is too one sided? 

Will the judge be the friend we need?

Will probation be the friend we need?

Believe it or not sometimes probation and the judge are the ones looking for harsh punishment.

The Poker Game: Plea Bargaining and Criminal Defense 

If we are without a friend in the judge or probation, then the district attorney may be our ally in persuading the judge. Assessing all the parties and their viewpoints allows us to figure out where, what, and how we can achieve the best outcome. A tricky bit of play, kinda like a poker game.

In poker you don't always have the best cards but the game is truly based in psychology. Your opponents may not know all your cards either. Some cards are showing while some are not. The best hand doesn't always will the game. The best players play the long game not the short one.