Section 16.17 Dealing With an Unsympathetic Prosecutor, Judge, or Both

• Library: Criminal Practice 2012 Supp

A. (§16.17) Dealing With an Unsympathetic Prosecutor, Judge, or Both

All criminal defense attorneys will have at least a handful of experiences with an inexperienced or uncompromising prosecutor who will refuse to offer an acceptable plea bargain for some reason. In that situation, defense counsel and the client are placed in a strategic dilemma about how to proceed. Hopefully, the case will be in front of an experienced, reasonable, and fair-minded judge who is not reluctant to intervene in such circumstances.

It is often an effective strategy to request a pretrial conference with the judge to determine whether the judge might intervene to help facilitate a plea bargain when the prosecutor’s offer, in the defendant’s view, is disproportionate to the facts of the case. Some judges will exert pressure on the prosecutor to make a more favorable agreement, while other judges will strongly indicate to defense counsel that an open-ended plea, even without a negotiated agreement, will result in a more favorable disposition. Defense counsel is cautioned, however, not to rely on unsubstantiated hunches regarding a judge’s likely behavior under this scenario unless that judge has a proven track record of acting in such a manner.

An even bigger problem arises if counsel is also in front of a judge who refuses to intervene in plea bargaining, has a reputation as a very tough sentencer, or both, which would make a plea up to the court a dangerous and risky proposition. Assuming that it is too late to obtain a change of judge, the defendant may have little choice other than to try the case.

Because...