Nedlin: Let’s make A deal | AspenTimes.com

Nedlin: Let’s make A deal

Richard Nedlin
Guest Commentary

Ninety percent of all criminal cases are plea negotiated and are never brought to trial. Why is this, you may ask? Well, for one, the prosecution does not like to lose a case at trial, and I can attest to this from personal experience.

Therefore, to ensure some sort of conviction, a plea deal is usually negotiated.

Second, the defense may not want to take the chance of the uncertainty of a jury trial and get convicted of the original, and most often more severe charge, meaning the opportunity to accept the guarantee of a lesser charge and sentence is appealing.

Another reason is that the prosecution may have issues with the case. For example, there may be witness issues such as a recanting victim or a witness who is not available to testify.

Additionally, other issues may arise in regard to the constitutionality of the arrest, seizure of any evidence or statements that may be deemed inadmissible.

Most often, when an offer is made on a domestic-violence case, it is to plead guilty to the original charge but with a deferred judgment and sentence. In this instance, the defendant will plead guilty. But that plea is not entered but rather deferred until a probation period is completed. If after that period of probation there have been no violations, the case is then dismissed in its entirety.

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However, if a term of probation is violated, then you don't start over. The court will enter the guilty plea, have you adjudicated as guilty and re-sentenced. Essentially, this type of plea offer gives an individual "one bite of the apple" and an opportunity to keep their record free of any convictions.

The other type of offer is to plead guilty to a lesser offense. For example, if someone is originally charged with third-degree assault, which is the most serious class misdemeanor, an offer might be made to plead to a harassment, which is the least serious class misdemeanor. What this does is limit the maximum amount of potential jail time by one year.

A lesser offense offer really becomes important when one is charged with a felony. In that case, an offer may be made to plead to a misdemeanor, which will save them a felony conviction and all of the serious consequences that go along with such a conviction.

It is very difficult to have a domestic violence sentencing enhancer dismissed. As I mentioned in earlier articles, domestic violence is not a crime in and of itself, but a sentencing enhancer. The reason the domestic violence enhancer is not easily dismissible is because the legislators who drafted the statutes wanted it that way. In essence, a domestic-violence case can only be dismissed if the prosecuting attorney makes a good-faith representation on the record that they would not be able to establish a prima facie case of domestic violence, and the court makes that finding as well. Therefore, it is easy for the predicate charge (assault, harassment and criminal mischief, for example) to be negotiated and lessened but the domestic violence enhancer usually has to follow the charge.

As a prosecutor, I have had only a handful of cases in which I was able to state to the court that the case was not one of domestic violence. One of the reasons was that in our office, at the time, the prosecutors made the charging decisions in regard to arrests made on domestic-violence cases. As such, we had the ability to screen the cases and make sure that it was a domestic-violence case before we filed it. I recall times after an arrest was made and the defendant was sitting in jail; after reading the arrest affidavit, I called up the jail to have the individual released because I felt there was no basis for the arrest.

Once an individual enters a plea to a domestic-violence charge, whether if be a straight plea or a deferred judgment sentence, there always will be domestic-violence counseling as part of any probation. Individuals must get a domestic-violence evaluation and then enroll in the recommended treatment. It used to be that a one-size-fits-all-36-weeks-of-treatment was the standard. However, in the last couple of years they have tailored the classes, as well as the terms, to suit individual needs based upon such factors as prior domestic-violence offenses and substance-abuse issues, among others. There is now a gradation of levels that range from low, moderate and high intensity. Individuals who need greater intensity can now be moved up levels or down, depending on how they progress. On a more personal level, the stigma of being labeled as a domestic-violence offender has ramifications and repercussions that reverberate throughout our society with the connotation that one is a spousal abuser. Additionally, when prospective employers run background checks and the domestic violence pops up, it can be a large black mark on one's background that may prevent them from certain opportunities.

Richard Nedlin is a former prosecutor in Aspen and now practices criminal defense. His column runs monthly in The Aspen Times. He can be contacted at 970-309-8197 and richard@nedinlaw.com.