Weighing the Risk of a Plea Offer

Gideon at A Public Defender, fresh off his international podcast with Charon QC, posits a very interesting concern coming out of the O.J. Simpson conviction. 



One interesting piece of information in this OJ Simpson brouhaha is the revelation that he may have rejected a plea offer for a sentence as low as 3 years. The first word came from a friend of The Juice and it was later confirmed by his lawyer.


The fallen idol’s pal Thomas Scotto said prosecutors made the offer in the last stages of his trial for armed robbery.

But Scotto added: “OJ and his sister told me the prosecution offered him a deal but he and his lawyers turned it down.” Scotto said that Simpson had been adamant he would not serve time and made that point clear to his lawyers.

He added: “He may have given it more serious consideration if he’d known what was coming.”

As Gid notes, it is incumbent upon defense counsel to convey any plea offer to a defendant.  But the duty, under a 1996 Second Circuit decision: Boria v. Keane (with its analog in Connecticut) requires counsel to not merely convey the offer, but to explain to the defendant the significance of the offer, good, bad and otherwise. 

There are only a few decisions left to the defendant in the course of a criminal prosecution.  One such decision is whether to accept a plea offer.  Theoretically, the choices belongs entirely to the defendant.  I say theoretically because it is unbelievably simple for defense counsel to manipulate the information to compel the defendant to make the choice that defense counsel believes is right, whether that means right for the defendant or right for counsel.

Coercion can be as subtle as voice inflection or a raised eyebrow, or as flagrant as telling the defendant to cop out.  Granted, there are times that a case is so bad, or a plea offer so good, that it would be insane not to take it, and that needs to be made clear as well.  But there are also times when it’s nothing more than a matter of risk tolerance, and the decision to go to prison must reside exclusively with the defendant.  After all, the lawyer goes home after a hard day in court.  If the defendant is going to put himself in prison, it has to be his choice.

But the scenario that Gideon considers is hardly unusual.  The defendant, full of bluff and swagger as he stares the indictment down, insists with absolute certainty that he’s going to fight, he’s not going to prison, he’s not going to take a plea.  This is when it becomes critical that the defense lawyer make it painfully clear that there is no guarantees and that prison may be unavoidable.  It’s crunch time, when lawyer and client have the most brutally honest conversation possible, and the very harsh, very real consequences of rolling the dice are made absolutely clear.

It’ my practice to do everything in my power to avoid influencing this decision, when there is a reasonable choice to be made.  Sure, clients ask for advice (meaning, tell me what to do), but I refuse to be lured by the opportunity to substitute my judgment for my client’s.  It’s not that I don’t have a sense of what I think ought to happen, but that I do not believe my level of risk tolerance to be a substitute for my client’s.  It must be the client’s choice, and the client must make that decision based upon a full understanding of all relevant information.  Clients hate this.

In some instances, one that happened quite recently to me, the client makes what would be considered a surprisingly ill-considered decision to accept a plea offer that is inadequate.  The fear of trial, of conviction, coupled with the burning desire to be done with the prosecution, a factor that should never be underestimated, drove the defendant to take what I considered to be a mediocre deal.  I really believed that we could do better, and that he failed to give adequate weight to some serious consequences of the plea. 

The defendant had time to decide whether to cop out or not.  This wasn’t one of those pleas coerced in front of the judge, with a two minute lifespan as good old Judge Harold Rothwax loved to do.  As it turned out, within 48 hours after taking the plea, the defendant began to have misgivings.  Some elements of the plea, which he had poo-pooed before when he felt the unbearable weight of his fear of risk, suddenly rose up to bite him in the butt.  The defendant began to sour on the deal, feeling a bit bolder now that he had been saved from years in a cell next to Bubba, and recognizing that he gave back some things that would prove as burdensome as I had explained.

I understood his displeasure well.  This was precisely why I took great pains to explain to him, clearly and using very small words, the many considerations that he should take into account in reaching his decision.  But he made his call, and there was no question that he knew exactly what he was facing and that the choice was entirely his.

If O.J. didn’t have that option as well, then he was entitled to better counsel.

2 comments on “Weighing the Risk of a Plea Offer

  1. Sam Leibowitz

    Well-said.
    A critical aspect of the plea bargain concerns often-undisclosed immigration consequences of a criminal conviction for aliens, whether a undocumented alien, a non-immigrant visa holder, or Legal Permanent Resident.
    A deal that often looks as sweet as apple and honey on Rosh Hashana can turn out to be the bitter herbs of Passover – once the defendant discovers that there are serious immigration consequences to criminal convictions. In these cases, it is of paramount importance to try to seal a deal (and even serve time) in return for prosecutor’s agreement to drop “aggravated felonies” from indictment.

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