Evaluating the State’s Offer
By Nicole DeBorde
How do you know whether the State is making a “good” offer? You cannot know until you have done all the work necessary to properly evaluate the case. What you need to properly evaluate the case is almost always more than what is in the state’s file. While the state’s file is a very good starting point, it rarely should end the inquiry. Once you have reviewed the offense report, statements and all other materials in the file, you should discuss the items and reports with your client. Are there other witnesses you should send an investigator to interview? Do you need to subpoena dispatch records, MDT’s, blood records, CPS records, medical records, audio and video recordings, social media records, etc? Do you need an expert to evaluate some forensic conclusion?
When you are the person suffering the consequences, a low offer from the state on a case they cannot make is too high. Your client is depending on you to know whether the state can make the case from a legal standpoint. While your client may be willing to jump on a low offer, it may not be the right thing if the state’s case is weak or cannot be made. As a lawyer, you simply cannot know whether the offer is a good one unless you have done the work to evaluate the case. Remember that the state is assuming the information they have in the report is accurate and based on solid science. It is a terrible disservice to a client for a defense lawyer to assume the same.
Collateral consequences should also be given serious consideration. What type of sentence will trigger which collateral consequence? Does the client hold a license which could be jeopardized? What is the client’s immigration status? Does the client need to travel internationally? Does the client like to hunt or have firearms? What will happen to the client’s driver’s license? Can a deferred adjudication be sealed? What is the difference between sealing and expunction? Is a deferred really dismissed or will it remain on record for public view? (You know, but your client needs an explanation too.) Because I do parole work, one of the scariest things I hear in the courthouse halls is misinformation about when a defendant will “get parole.” Almost all the information I overhear being imparted to the accused considering a prison sentence in the halls or holdover is incorrect. The client is depending on you to know what the consequences of their guilty plea will be. If you do not know, do not guess. Call an expert in the area of concern, whether it be parole, immigration or any other collateral consequence.
Whether the state’s offer is a good one depends on many factors. Ultimately, the client will decide whether the state’s offer is a good one. Good attorneys should be able to clearly explain all of the risks, benefits and consequences associated with taking an offer and with rejecting it. Once you have explained all of the possibilities, the client can make an informed decision about how they wish to proceed.