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  • Lisa Jensen

Buyer's Remorse in Plea Bargains


"What if I want to withdraw my plea?"


This is a question that many people find themselves asking after they have entered a plea of "guilty" or "no contest" in a criminal case.


Plea bargaining is a cynical thing. In California, there are not nearly enough resources currently to provide trials for all the accused in the state. This was true even before a pandemic started raging across the world earlier this year. To conserve limited resources, the practice of "plea bargaining" has taken hold in American courtrooms and is the most frequently utilized way to settle a case. The prosecutor will make their offer to settle the case, and the defense will try to negotiate on behalf of their client for a more favorable outcome. Often, the negotiated resolution is a compromise: charges are dismissed, a certain amount of custody time is agreed upon, and other collateral consequences can be avoided.


While this system tends to work fine for people who wanted to resolve their cases, it also creates an infrastructure that expects a plea bargain. The question becomes not if but when, not whether but how much. And this mentality infects every aspect of court. Judges who want to keep their dockets moving along give perplexed looks to defendants who want trial even though they have a "pretty good offer" on the table. Prosecutors don't understand why a case isn't settling. Even as a defense attorney, it is hard to watch someone pass up a really good plea bargain and go to trial because of the worse outcomes that might occur should they be convicted by a jury.


The reality is that plea bargaining is so ubiquitous that trials are the exception, and for those few defendants who go to trial, it is a perilous journey. For those who are acquitted, hearing the sweet sound of a "not guilty" verdict being read out loud is vindication and empowerment. But for those who are convicted, it is practically a punch to the face to hear that cruel absence of the word "not." As trial attorneys well know, there is no leverage at sentencing after trial. A defendant with a long criminal history is at a severe disadvantage because judges will have ample justification to render the more serious punishments available to them. Even a person with minimal or no criminal history is not necessarily in the clear, because "aggravating facts" not known to the prosecution at the time of plea bargaining are frequently used to justify a harsher sentence. This is something the defense bar calls, the "trial tax." Basically, punishing you for exercising your rights. It's not allowed, so it "doesn't happen." At least not overtly. And trial tax aside, the judge's hands are tied by the jury's verdict: a judge can't reduce your DUI conviction to a "wet reckless" offense after a trial, for example. For many, avoiding jail time, getting charges reduced or dismissed, and being able to have some control over the sentencing are well worth the indignity of engaging in plea bargaining, even if there were great defenses that could have played out favorably at trial.


So despite the ugliness, many people plea bargain their cases and find themselves awaiting a sentence they agreed upon. Often, there is a period of regret where people will ask themselves if there was "another way." Maybe if I just explained more, I could get a little less custody time? Maybe I should have taken my case to trial after all? It is this line of inquiry that leads many to consider attempting to withdraw the plea of guilty and re-litigate their cases.


But this is not something that should be undertaken lightly. I find that many people who ask about this have just talked to a very loving, well-meaning friend/relative/SO/etc who doesn't understand why the case settled or why the prosecutor didn't just dismiss the case. While that loved one absolutely means well, they are probably not going to be the judge, the jury, or the one who has to live with the consequences of a sentence. Withdrawing a plea means that all the dismissed charges come back. Once someone has successfully backed out of a plea bargain, they assume they can bargain some more, but there is no guarantee of that actually happening. The law that allows a person to withdraw a plea does so in order to allow the defendant to have a trial, not a different plea bargain. And as mentioned before, trials where a guilty verdict is reached can have harsher consequences than those typically plea bargained for.


Finally, motions to withdraw a plea are time-sensitive. They typically cannot be litigated after sentencing. Even if sentencing is pending, you have to have grounds to withdraw the plea in order to get a judge to consider reopening the case. Often, the attorney who handled your case will have a conflict of interest if they do not agree that you have grounds to withdraw your plea.


The solution: make sure you know what you are signing. If you are going to consult with family and friends, do it before you take a plea so that you can have a final discussion with your attorney about whether you should take a particular deal. And if you really don't want to take a plea bargain (and are willing to accept the risks associated with a jury trial) then do not take a deal in the first place. Impulsive decisions belong on road trips and in the checkout at the grocery store, but they shouldn't guide your thinking in something as serious as criminal charges.

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