Going From 3 Years in Prison to Probation

I was working with a client who was facing a very serious felony charge that carried a mandatory five (5) year presumptive term in prison. When he first came into my office he asked the obvious question: What can you do for me?  This is the same question many prospective clients want answered.  Moreover, it is an appropriate question.

I always answer this question the same way: “I don’t know.” This is the only truthful answer that an attorney can give on the first day of a case. I use the following analogy to explain why I give this answer. You go to the doctor and ask him "can you cure me"? The doctor will tell you: “I need to do some tests first.” The same it true for a criminal case.  If an attorney tells you how your case will turn out on the first day, I advise that you run out of the office as fast as you can. Common sense tells you that such promises made on day one of a case are baseless.

I explained to the client how I would handle his case.  I also communicated to him my experience and my strategy to fighting criminal charges.  He retained me and I went to work on the case.

The prosecutor made it very obvious that she wanted my client to serve a long term of incarceration. She made us a three and a half (3½) year plea offer which I thought was unreasonable give the circumstances.  As the case went on, my client’s resolve started to weaken. He was considering taking the plea. I told him it was his decision, but I did not recommend taking the plea. While I advised him to seriously consider the plea before making a decision, I did not see the plea having a great benefit based on several weaknesses in the State's case.

Soon after this conversation, we found the evidence we needed to really solidify our defense.  We found it during the interview of the primary law enforcement officer. The officer was not happy that our interview had lasted for such a long time. Nor did the prosecutor understand why we were asking so many questions. Clearly the prosecutor was agitated that this interview was taking longer than "normal."  However, towards the end of the interview my investigator noticed a one page written statement in the officer’s file. We inquired what it was. We were told it was not important. We demanded it and we got it. It changed the whole case. It was a statement by a witness regarding the description of the person who committed the crime. The description was not even close to my client.

The prosecutor now understood why we sometimes take so long at these interviews. We still, however, had problems with the case (i.e. while the witness description did not match my client, there was still the problem of the video tape showing a person who strongly resembled my client.)

At a settlement conference we negotiated a new plea agreement: probation.  The plea also required a term of jail to be determined by the judge (the plea stipulated that the amount of jail would to be limited from a minimum of one day to a maximum of one year.)

The prosecutor recommended a one year term of jail. After hearing our arguments, the judge sentenced my client to probation with two months of jail.  Moreover, my client was eventually allowed work furlough (released for a portion of his incarceration to work).

There was no way I could have predicted to my client, on the first day of the case, that he would be sentenced to probation and only serve two months of jail.  All I could tell him was how I would handle the case, not how it would turn out.  
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