PLEA NEGOTIATIONS. CORBY HOLCOMB, Austin Travis County Attorney s Office

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1 PLEA NEGOTIATIONS CORBY HOLCOMB, Austin Travis County Attorney s Office State Bar of Texas HANDLING YOUR FIRST (OR NEXT) DWI CASE March 1, 2013 Austin CHAPTER 5

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3 CORBY HOLCOMB Travis County Attorney s Office 314 W. 11 th Street, Suite 300 Austin, Texas (512) ; FAX: (512) ACCOMPLISHMENTS Father of four wonderful boys: Holt, Krieg, Case, and Ford, married to beautiful wife Tira. EDUCATION J.D., Texas Tech University School of Law, Lubbock, Texas, May 1998 B.A., Criminal Justice, Saint Edward s University, Austin, Texas, May 1995 PROFESSIONAL April 2007 present Nov April 2007 Nov Nov Travis County Attorney s Office, Austin, Texas Assistant Trial Director Travis County District Attorney s Office, Austin, Texas Assistant District Attorney Travis County Attorney s Office, Austin, Texas Assistant County Attorney PUBLICATIONS LEGALLY INSANE, The Texas Prosecutor, Vol. 36, No. 2 (2006) DWI: TRYING A TOTAL REFUSAL CASE, Advanced Criminal Law Seminar 2008 STANDARDIZED FIELD SOBRIETY TESTS, Advanced Criminal Law Seminar 2012 LAW RELATED ACTIVITIES Austin Criminal Defense Lawyer s Ethics Seminar 2012, Speaker on Brady Advanced Criminal Law Seminar, Co-moderator and Speaker, 2012 Texas Association of Counties Seminar 2011, Speaker on Prosecutorial Discretion Advanced Criminal Law Course Boot Camp Speaker 2010 Austin Criminal Defense Lawyer s Criminal Law Retreat, Speaker 2009, Legislative Update Advanced Criminal Law Course Boot-Camp, Speaker 2009 Austin Criminal Defense Lawyer s CLE, Speaker 2008, Ethics Advanced Criminal Law Seminar, Co-moderator and Speaker, 2008 Prosecutor Trial Skills Course, Faculty Advisor, Advanced Criminal Law Seminar, Panel Member, Grand Cayman Islands, 2000

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5 Plea Negotiations Chapter 5 TABLE OF CONTENTS TO SEE THAT JUSTICE IS DONE RULES OF NEGOTIATIONS Be prepared Establish credibility Discretion is the better part of valor Be polite and professional... 2 BE HONEST... 3 i

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7 Plea Negotiations Chapter 5 PLEA NEGOTIATIONS Contrary to the mainstream public s belief derived from T.V. shows and movies, most criminal cases are not resolved by dramatic courtroom jury trials, but rather by plea bargaining. In fact, studies show that about 92% of all criminal cases are resolved through plea negotiations (James A. Inciardi, Criminal Justice 3 rd ed. at 374, Harcourt, 1990). So, while being a great trial attorney will serve your clients well for the 8% of cases that actually go to trial, being an effective negotiator will serve the other 92% of your clients very well. As someone who has negotiated thousands of criminal cases over the past thirteen years and having tried many jury trials, I can tell you that some of the best attorneys I have seen rarely go to trial. It does help a defense attorney during plea negotiations if she is also a good trial attorney who is not afraid to go trial. Over the years I have seen and heard prosecutors say to a defense attorney who did not like the recommendation that the prosecutor had given them something like this: What are you going to do, try it? There are some defense attorneys out there who will never go to trial and the prosecutors know this. I m not sure if this is fear based or they just don t want to try cases. Ultimately this will negatively affect your future plea negotiations. I m not saying that you have to be total trial dog who will try any and every case you have, but what I am saying is that the prosecutor who is making a recommendation to you must know that if the recommendation is unreasonable you will go to trial. I would also say that some of the best negotiators I have seen are not what I would consider the best trial attorneys, but will go to trial if push comes to shove. A handful of defense attorneys are great at both. In my opinion as a prosecutor, a defense attorney should strive to be a very good trial attorney and a very good negotiator. By having these skills you can be very effective in zealously representing all of your clients, current and future. TO SEE THAT JUSTICE IS DONE. As set forth in the Code of Criminal Procedure, a prosecutor s ethical duty is to... see that Justice is done. (Texas Code of Criminal Procedure Art. 2.01). While this is the guideline that I have lived by for the past thirteen years, justice is hard to define. I believe that I, along with most prosecutors, try to do our best to do the right thing on every case regardless of the defense attorney. However, the reality is that a really good defense attorney will be able to persuade a prosecutor to see things that another attorney may not. For example, let s take a look at a standard DWI. I have had many defense attorneys ask me for a non- DWI recommendation like obstruction of a highway or 1 reckless driving. I have literally had defense attorneys just ask for it, without any argument on behalf of their client. When I ask them about the facts of the case they are unfamiliar with them. When I ask them questions about their client they can t tell me much. For a second, pretend that you are a prosecutor. How comfortable are you going to be reducing this case to a non-dwi and just hoping that this person doesn t go out and kill someone in a future DWI? Most prosecutors would not be comfortable reducing a DWI in this situation. Conversely, I have had defense attorneys show up to court and be very effective in negotiating on behalf of their client. RULES OF NEGOTIATIONS 1. Be prepared Just as the old Boy Scout motto goes, Be Prepared. Here are some things that I think a defense attorney can do to try to persuade a prosecutor who is handling a DWI case to either give a lighter sentence on a DWI or to change the charge altogether. One thing that the defense attorney must do is to be prepared. Knowledge of the facts surrounding the DWI, the legal issues in the case, and personal knowledge about your client are key. Some of the questions that the prosecutor is going to want to know are: what was the driving or reason for the stop, was there a collision, how did they perform on the field sobriety tests (or did they refuse to do them), was there a breath or blood sample, was the breath or blood given voluntarily or did the police have to obtain a search warrant, does the defendant have any prior alcohol related arrests or convictions, how old is the defendant, what does the defendant do for a living or are they a student, do they have family, have they served in the military, do they volunteer for local charities, has the client done the alcohol counseling already? If you have answers for all of these questions it will greatly help you to sell your case to the prosecutor. Also, without this level of preparation for your client you lose credibility with the prosecutor. 2. Establish credibility There are a handful of attorneys who come to the negotiation table so prepared that it makes it hard for the prosecutor to say no to their request. The example I gave earlier about the defense attorney who knew nothing about his case or the facts of the case makes it really easy for the prosecutor to say no. Below is a hypothetical example of a DWI negotiation that a prepared defense attorney would put forth. The really prepared attorneys will come in to meet me on a case and the conversation may go something like this: First let me say thanks for taking the time to look at this case for my client David. David is a really good guy. He s 45 years old, never been in trouble before and has no criminal history. He has a wife and three

8 Plea Negotiations Chapter 5 kids. He has worked at Dell for the past 20 years as I.T. guy. He feels really bad about what happened and has already done his alcohol counseling up front and here is a copy of the certificate for your file. On the night of the arrest, David was pulled over for speeding. He was going 45 M.P.H. in a 30 M.P.H. zone. He was very polite with the officer. He said he had two beers with co-workers after work. Here are three affidavits for your file from his co-workers who state that they were with David prior to his driving and they all say that they met right after work, and that David only had two beers. They also say that he had his mental and physical faculties and in no way appeared intoxicated. They also say that if he had appeared intoxicated, they would not have let him drive home. They have also told me they would come to court if the case went to trial and testify to this effect. David cooperated and did the field sobriety tests. He looked pretty good overall. He slightly stepped off the imaginary line once on the walk and turn. And he put his foot down once on the one leg stand. Other than that, he looked great. He counted correctly on both test and his speech did not sound slurred. David did extremely well on the physical test considering he had knee surgery two years ago and here are the medical records for your file. David did refuse the breath test but only because he requested to talk to his lawyer first and was not given the opportunity. This is a guy you will never see again. I have met with him and his family and he is very upset that this happened. He has assured me he will never drink and drive again in the future. Also, a DWI conviction could affect his job because he travels and has to drive a company vehicle. What I am asking for is an Obstruction of a Highway recommendation. Put David on a two year deferred adjudication, have him do however much community service you think is appropriate and pay whatever fine you think is fair. He would be happy to do any other conditions you would like to have him do and wanted me to personally thank you and tell you he appreciates you taking the time to consider his case. This is just an example of a very prepared defense attorney who has put forth a great argument to try to get a reduction for his client. First, he was very prepared and familiar with his client and the facts of the case which establishes credibility with the prosecutor. Second, he personalized his client to make him more human. Third, he provided plenty of documentation for the prosecutor so that he could justify and defend reducing this case if need be. He provided copies of the counseling which was done up front and supplied affidavits from witnesses who stated the defendant was not intoxicated. He also provided copies of medical records that the prosecutor can put in his file. He subtly, but not over-aggressively, indicated that he would be willing to try this case (this was when he mentioned the witnesses were prepared to testify if 2 need be). Finally, he presented a very reasonable request to the prosecutor and ended the negotiation on a positive note. Let s put it this way, on the facts of this case and with what the defense attorney presented me, I would not find it hard to reduce a case like this. The defense attorneys approach addresses all of the prosecutor s concerns. The prosecutor wants to know if they can win this case if it goes to trial. With the facts presented by the defense attorney, the witness statements and the medical records, it would be hard to get a conviction in this case. Second, the prosecutor is always thinking, if I reduce this case and this defendant goes out and kills someone, will I be able to explain this to my boss when called in? In this scenario, the defense attorney has given the prosecutor plenty of cover and justification to reduce this case. The counseling, witness statements, and medical records will help justify why the prosecutor did what he did. I think a prosecutor could feel that by reducing a case like this that justice was done. 3. Discretion is the better part of valor Don t go to the well too often. I ve seen it over the years, the defense attorney who has never had a guilty client. The defense attorney asks for a reduction or dismissal on every case. From a prosecutor s perspective, this gets old really quickly. The defense attorney loses all credibility. Just like the boy who cried wolf, when the defense attorney actually gets an innocent client and tells the prosecutor, the prosecutor is not going to believe them. The defense attorneys who don t ask for reductions on a daily basis, who plead out (to a reasonable and fair deal) the DWIs where their clients look bad or have a high blow and only ask for reductions on cases where it is deserved establish credibility with the prosecutor and this will go a long way in getting the prosecutor to reduce their case. 4. Be polite and professional The old saying you can catch more flies with honey than vinegar holds true with negotiating pleas. I m not sure where someone got the bright idea that by being a jerk or threatening the person you are asking to do something you want them to do for you was a good idea, but guess what, it s not. Maybe it s because our system of justice is deemed adversarial that some defense attorneys think the prosecutor is the enemy and they have to fight them on every issue. Maybe they think that zealously representing their client means biting the hand that they are asking to feed them. I don t get it personally. I m constantly amazed at the times when I walk into court and see a defense attorney being a jerk to the prosecutor and then ask them for a reduction. Once again, it seems like the best and most effective defense attorneys are polite and professional towards the prosecutor. Now this does not mean that

9 Plea Negotiations Chapter 5 they will not fight for their client or advocate for their client, but they just do it in a way so that it never becomes personal, it s always about the issue(s). I also understand that from a defense attorney s perspective there are prosecutors who may seem equally as hostile and I have personally known a few of these over the years. However, I have seen defense attorneys deal with these prosecutors equally effectively by remaining calm, being firm but polite, and being professional. Ultimately the prosecutor will calm down and if you are polite and professional they may do what you want on a case. Remember also that this will probably not be the only case you deal with this prosecutor on. In fact most prosecutors and defense attorneys deal with each other on many cases day in and day out, year in and year out. So establishing and maintaining a professional relationship is crucial to helping your future clients. BE HONEST I probably should have listed this one first. Your word truly is your bond in the criminal courts. That holds true with the judges and the prosecutors. Above all, if a judge or a prosecutor knows that they can trust you, this will benefit you and your clients throughout your entire legal career. Ethically you have a responsibility to be honest towards the tribunal and the opposing counsel. (Texas Disciplinary Rules of Professional Conduct, 3.03). Aside from the ethical obligation, you should be honest because it is the right thing to do. I have had a couple of extreme examples of honesty and dishonesty. The first example was a case I was prosecuting as a felony. Shortly before trial the defense attorney asked me if I would be willing to make a certain offer on a misdemeanor if he disclosed information to me that could affect my chances of success at trial. I told him I would if I believed the information was significant enough. The case was a family violence assault case with a prior conviction for family violence alleged in the indictment. He provided me with documentation that showed that the first conviction was not a family violence assault (which was an element I had to prove). I upheld my end of the bargain and we pled the case out to a misdemeanor and he saved me the embarrassment of finding this out at the end of trial. Now, while he did not have to tell me this he chose to. As a result, his client got a good deal. We have since negotiated many cases together and let me tell you, when he makes a representation to me, I believe him. His honesty on that one case has helped not only that client but all of his future clients. The other example does not have a happy ending. I had been practicing as a prosecutor for about eight years. A defense attorney, who I knew and who I had negotiated many cases with over the years, approached me and asked if he could look at an offense report on a 3 terroristic threat case. Normally our policy was to not give these offense reports out without reviewing them for redaction for victim safety. However, we were over in court, it was busy docket and I thought I could trust this guy since we had dealt with each other so much in the past. I handed him the offense report said just make sure your client doesn t see this. He responded I won t. After about thirty minutes of tending to a busy docket, I walked into a crowded courtroom. I saw the defense attorney that I had handed the offense report to sitting with a client who resembled the defendant and having her read what appeared to be the offense report I had handed to him earlier. I stepped out of the courtroom for a moment. After a few minutes I saw the person who I suspected to be the defendant walk out of the courtroom by herself reading what appeared to be the offense report I gave the defense attorney. I then walked back into the prosecutor room and saw the defense attorney there. I then asked him point blank: Did you just give a copy of the offense report to your client that I asked you not to? He paused and it appeared that he was about to say no and then with a defeated countenance sighed yes. I then instructed him to go get the offense report and return it to me immediately. You could say that I was angry but truth be told I was more hurt. He betrayed my trust. I never spoke another word about it. I can tell you that prior to this incident I had resolved many cases with this defense attorney and many had favorable results. Since this incident, which has been about five years, he has not come to see me on a single case. Plus, I told my fellow prosecutors about this since not only was it deceptive, but it was potentially dangerous for victims should their personal information fall into the wrong hands. So effectively, this defense attorney, because of this one lie, hurt all of his future clients by getting a reputation of being dishonest. Judge Michael McCormick, the former presiding judge of the Texas Court of Criminal Appeals, was a speaker at my 1L law school introduction and whom I had the honor of interning for as a clerk a few years later. I still remember him saying in his speech to brand new law students that what he has learned over all these years is that you have to practice law in a way that allows you sleep at night. If you take only take one thing from this paper I hope it is this.

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