Effective Plea Negotiation in Wisconsin Criminal Cases

National studies indicate 95% of charged criminal cases result in some kind of negotiated settlement commonly known as a “plea bargain.”  The criminal justice system could not function if every defendant exercised their right to trial – there are simply not enough courtrooms, judges, jurors or prosecutors to try every case.  However, the government has incredible leverage in most charged cases: the ability to seek longer sentences.  Moreover, when fashioning a sentence, Wisconsin courts usually consider whether a defendant was quick to take responsibility and show remorse for his or her actions. Going to trial cuts against these sentencing considerations.

The United States Supreme Court recently recognized the importance of effective counsel during the plea bargaining process in Missouri v. Frye and Lafler v. Cooper.   These cases underscore a defense attorney’s important role in obtaining, negotiating, and communicating a plea bargain from prosecutors to a defendant.

In real Wisconsin criminal cases, however, the true effectiveness of a defense attorney is based on the nature of the plea bargain reached.  In a perfect world, the prosecution’s plea offer would be based upon objective facts relative to each case — the defense attorney would not matter.  However, the Wisconsin criminal justice system is not a perfect world.  Some defense attorneys routinely achieve better negotiated resolutions for their clients.

As a former prosecutor and current defense attorney, I’ve analyzed why some Wisconsin defense attorneys achieve better results during plea negotiations.  In short, it comes down to one thing: credibility.

Defense attorneys must constantly build and maintain their credibility with the prosecutors they work against.  In some counties, there are only a handful of prosecutors.  In Milwaukee County, there are around 120.  Even in the largest District Attorney’s Office, defense attorneys develop reputations and become known quantities to their adversaries on the prosecution side of the bench.

So how does a defense attorney develop and maintain credibility that enhances his or her ability to reach a favorable plea deal with the prosecution? There are three important areas of building credibility:

1. Preparedness with every fact of the case.  Each client’s case presents unique facts and legal issues.  Preparedness allows the defense attorney the ability to articulately and intelligently “plead his case” to the prosecutor.  Often, this may involve bringing up issues or facts the prosecutor is unaware of or has forgotten.
2. Approach each negotiation with a calm, friendly, and professional demeanor.  Defense attorneys whose personalities are grating, over-aggressive, or annoying seldom achieve the optimal outcome during a plea negotiation.  This is simple human nature: no one, prosecutors or otherwise, want to speak at length with someone who they find disrespectful or obnoxious.  If a defense attorney cannot engender some good will with their adversarial attorney will not be heard.  Some defense lawyers put on a “show” for their clients to demonstrate that they are tough guys who can stand up to the government.  This is baloney and actually hurts the defense attorney’s ability to reach a good outcome.
3. The ability to stop negotiating and go to trial.  There is no perfect case for the prosecution or defense.  In real life, there are always issues that cut against each parties’ case.  Juries are unpredictable.  A negotiator cannot be credible if they aren’t willing to “put up or shutup” and go to trial.  An attorney who has a reputation for going to trial after meeting loggerheads during negotiation will be taken more seriously than an attorney who doesn’t have trial credibility.