Of course, in any lawyer/client relationship the people involved will determine who makes the decisions.  However, in criminal cases there are two main decisions that only the client can make—

1.  The decision to plead guilty or to demand a trial.  Not only is this legally and ethically correct, but it makes common sense also: only the defendant knows for certain if he committed the crime or not.  Therefore, he should be the one to make the decision to plead guilty.

Stemming from this, the client also has the decision to authorize his lawyer to negotiate with the prosecutor for the possibility of settling the case with a plea of guilty to some less serious offense.  It’s known as “plea bargaining” and, at the end of any negotiations, once again, it’s the decision of the defendant to plead guilty to the less serious charge or to reject the offer and go to trial.

2.  The defendant also makes the decision, if he wants a trial, that it be heard by a jury or by a judge without a jury.  This choice comes from the Bill of Rights in the Constitution that gives an accused the right to “a jury of his peers.”  Therefore, the defendant makes this decision.

In my many years of representing defendants, I always give them these decisions.  Often, a client will ask me if they should plead guilty or not—requiring me to make the decision.  I’ve never done that.  I always force them to confront the case and make the decision.  After all, they know if they’re guilty or not—I never know for sure.

When it comes to a jury or a judge for trial, I can offer a lot of advice to a defendant.  For instance, several years ago, I represented a young man who had been charged with first degree murder and transferred to adult court.  He was facing a life sentence without parole—he’d never get out of prison before he died.  He was the accomplice in a brutal, senseless execution of two people who were robbed for money.

When he asked me about a jury or a judge, I suggested that he consider going with a judge.  I was worried that a jury would be so offended by the facts of the case (even though my client was not the shooter) they would react by convicting him rather than weighing the evidence of his minor role in the murders.  A judge who had heard dozens of horrible cases like this one, might be more willing to look deeper at the legal issues involved.

My client agreed, he waived a jury, and we tried the case before a judge.

The judge found the young man guilty but of a reduced degree of homicide.  He still had to go to prison but only for about eight years.  In that case, the defendant’s decision worked to his benefit.

On the other hand, if a defendant tells me he did the crime but still wants a trial, I always suggest a jury—there’s a small chance the jury might feel sorry for the accused and give him a break.

The post Who Decides–Client or Lawyer? appeared first on Colin T. Nelson.

Adrian Peterson settled the case through a procedure called, No Contest.

—What does that mean?  In some jurisdictions in the country, a defendant is allowed to avoid pleading guilty, but at the same time, say they don’t want to fight the case.  Not every state allows this.  (Minnesota does not)  Why wouldn’t he simply plead guilty?  He may think his intent in the case was to only discipline the child.  Saying he’s guilty means admitting that he intended to do more than discipline the child.  He intended to harm him.  If Adrian Peterson admits guilt, it may jeopardize his child protection case pending in Minnesota and it may jeopardize his standing with the NFL.  Or, it may have been because he didn’t want to drag-out the case and go through a very embarrassing trial.

—Was this a plea bargain?  Yes.  Originally, Adrian Peterson was charged with a felony.  He said No Contest to a misdemeanor.  Which means the penalty is far less and the consequences for his other problems are also less.  Perhaps the NFL would not let him ever play again if he was convicted of a felony.  In addition, his plea bargain requires probation with several things to do, including going to parenting classes.

—Why would the prosecutor agree to this?  As I posted earlier, when parties go to trial, there’s no guarantee the prosecutor will win.  Particularly in a case with this much “baggage.”  (Star athlete, media coverage, sympathetic jurors, etc)  Also, it will avoid having to put the four-year old child victim on the witness stand.  With the agreement of the mother, the prosecutor chose to go for the sure conviction—even if it was only a misdemeanor.

—Does Adrian Peterson “get off?”  No way.  Not only has he missed several games, who knows when the NFL will allow him back.  He has a criminal conviction, is on probation for two years, and all of that will affect his contracts for sponsoring products.  Even if he’d pled guilty to a felony, he probably would not have gone to prison, anyway.  Why?  He’s a first time offender, showed remorse, was willing to change his parenting practices, and is a star.  I doubt he would’ve gone to prison.

—What do you think of this deal?  Fair to everyone?  Too easy on Adrian Peterson?

The post Adrian Peterson is Guilty–Sort Of appeared first on Colin T. Nelson.

What is a plea bargain?  Does it lead to justice?

After more than thirty years of work as a prosecutor and a defense lawyer, I’ve participated in thousands of plea bargains.  What is a plea bargain are they fair to everyone?

Once a person is charged with a crime, they have two choices:

1.  They can plead not guilty and have a jury trial.

2.  The accused person can take a plea bargain and admit their guilt to some crime.

It’s estimated that about 97% of criminal cases are settled short of going to trial by the defendant accepting a plea bargain and saying, “I did it.  I’m guilty.” Why wouldn’t they go to trial?  Here’s another interesting statistic that leads to plea bargains: of the cases that go to trial, about 90% of the defendants are found guilty by a jury.

To plea bargain means the prosecutor will offer some less serious charge or less prison time or less probation in order to encourage the accused person to plead guilty and not go to trial.  Almost always, it means the defendant pleads guilty to something less than he may have actually committed.  Why would the prosecutor do this?

Because even though they win about 90% of the time, they don’t win all the time.  So, the prosecutor may offer a plea bargain to assure a conviction, particularly if the case is weak and the prosecutor fears a jury may find the defendant not guilty.  Also, trials are expensive and difficult.  Usually money’s not a big factor, but it does play a part.  What if the prosecutor knows his star witness isn’t sure about the identification of the defendant?  What if a critical witness is missing?  What if the investigating cop has accidentally gone out of town on vacation the week of the trial?  All these factors may play a part in the prosecutor’s decision to offer a plea bargain.

Why would the defendant accept a plea bargain?  His lawyer will review the evidence the government has against him and explain that 90% of the time, juries convict.  So, the question becomes: do you want to take a chance on being convicted by the jury and receiving the maximum prison sentence, or would you like to plead guilty to a guaranteed, shorter sentence?  Most defendants choose to plea bargain.

Should the defendant plead guilty if they’re innocent?  No.  However, I have been involved in cases where it wasn’t certain that the defendant was guilty, but he chose to plea bargain to assure himself of probation rather than prison, for instance.

Is it fair to victims and the community?  Maybe not, but a jury trial does not guarantee that even guilty people will be found guilty.  For a victim, knowing that the perpetrator will be sentenced for a crime may be more reassuring that getting the last ounce of justice out of him.

What do you think?

The post Should We Allow Plea Bargains in Criminal Cases? appeared first on Colin T. Nelson.

1.  It’s common for accused people to plead Not Guilty early in the case.  The person (and everyone else) may know they’re guilty, but will use the Not Guilty plea to stall the case.  It’s a formality to buy time for the defense.

2.  Adrian Peterson may really think he’s not guilty.  Although the case is in Texas, the law is similar to that in Minnesota.  It says:

“Assault in the 2nd Degree.  (a)  Whoever assault another with a dangerous weapon may be sent to prison for not more than seven years.  (b) Whoever assaults another with a dangerous weapon and inflicts substantially bodily harm may be imprisoned for not more than ten years.”

The government must prove beyond a reasonable doubt two things in Adrian Peterson’s case:

a.  That he injured the child and caused harm

b.  That he intended to cause the harm (In other words, it wasn’t an accident)

During the brief interviews Adrian Peterson has given, he’s mentioned that he’s not guilty because he didn’t intend to harm the child.  Instead, he intended to discipline the child.  Personally, I think this will be a tough defense for Adrian Peterson.  How can a person strike a four year old with a stick and cause cuts and bruises to the child’s lower legs, buttocks, lower back, and on his hand (a wound caused by the child trying to defend himself)—and not intend or know that physical harm will be the result???

3.  The penalty for Adrian Peterson if he’s found guilty of the charge is commitment to prison.  Maybe Adrian Peterson and his lawyer are negotiating a future guilty plea in return for probation instead of prison.  In order to buy time for this process, Adrian Peterson has to plead Not Guilty.

4.  In Minnesota, Adrian Peterson is working through a case plan in a child protection case involving the same victim.  It probably includes anger management, counseling, and parenting education with recommendations for further treatment.  If Adrian Peterson can accomplish these goals, he may be able to negotiate a settlement of the criminal case in Texas.  In light of completing the case plan, the prosecution in Texas may agree to probation for Adrian Peterson instead of prison—at which time Adrian Peterson could change his plea to guilty.

The post Is Adrian Peterson Really Not Guilty? appeared first on Colin T. Nelson.

During the trial, prosecutors played recordings that Smith made on his home audio system in which he says he is glad the two young people are dead because he “considered them vermin” and that he was “doing the community a favor by cleaning up the waste.”  Besides using a bullet to stop each of the intruders, Smith continued to shoot them even after they were no longer a threat to him.

People have asked me several questions about the trial and verdict.  Here they are:

1.  The jury came back in less than three hours.  Does this mean anything?

I think it shows how convinced they were of Smith’s guilt.  In trials I’ve been involved with, juries can deliberate for days, especially if it’s a serious case like this one.  People understand the responsibility they have as jurors and want to make sure they make the correct decision.  It always takes an hour or more to choose a foreperson and to take an initial vote.  The fact this jury returned so quickly tells me they had few doubts about Smith’s guilt.

2.  Does this verdict mean that a person cannot use self defense in their home?

No.  The law in Minnesota says that you may use the deadly force that a reasonable person would use if you feel threatened with great bodily harm or death in your home.  Or, if the intruder is committing felony in your home.  You are allowed to use deadly force—even killing someone.  In this case, the jury obviously thought Smith went far beyond the necessary force to stop the threat and even turned it into an execution.

3.  Should Smith get life imprisonment without parole instead of being required to work with young, troubled teens?

Yes.  The Sentencing Guidelines in Minnesota that all judges are required to follow, prescribe a life sentence without parole.  Under some circumstances, the judge can deviate from that and could even give a shorter time in prison or probation, but the judge must have compelling reasons that he puts on the record to justify the departure from the Guidelines

http://http://www.startribune.com/local/east/257435001.html  See interview with the prosecutor.

4.  What about an appeal?

All losing defense lawyers promise they will appeal the case and, maybe, Smith’s lawyer will do that also.  However, an appellate court will not decide if Smith was justified using self defense—that’s not the purpose of an appeal.  Instead, the appellate court will look at the trial and if there were errors in the proceedings that were so prejudicial to Smith that he deserves a new trial,  the appellate court could order a new trial.

Let me know what you think about this case.

The post Jury Says “NO” to Byron Smith’s Self Defense appeared first on Colin T. Nelson.