Vail Law: Plea bargains are a way to keep a crowded legal system moving (column) | VailDaily.com

Vail Law: Plea bargains are a way to keep a crowded legal system moving (column)

Rohn Robbins
Vail Law

Certainty. Efficiency. And economy.

We'll circle back to that in just a second, but first, what is a "plea?"

This part is pretty easy. A "plea" is a formal response by the defendant to the charges of the prosecutor in a criminal case.

"How do you plead?" the judge in a criminal proceeding will invariably ask.

“In a sense, a plea agreement is a contract. As in any contract, an offer is extended, a bit of haggling and some posturing most times takes place, the offer is accepted or else a counter-offer is teed up and only when the parties reach a meeting of the minds are hands shaken, either literally or metaphorically, and is the deal then chiseled in stone.”

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"Guilty" or "not guilty," with a "Your Honor" tucked in are the standard flavors.

But what about the "bargain" part? Well, I suppose a "bargain" is the eye of the beholder. One man's bargain is another's "holy crap."

The "bargain" chunk of this can be taken two ways. In the first, it connotes the back-and-forth of coming to agreement, as in, "We bargained back-and-forth and forth-and-back until we were ready to drop but, at last, we reached an understanding." In the second, the word insinuates, "Hey, what a screaming deal I got!" If we were dealing with theater tickets instead of law, then it would go something like, "Can you believe it? I scored Hamilton tickets for less than face value."

But, alas, it's the law that is the subject here.

Bargaining toward agreement

So if we moosh the two together — "plea" and "bargain" — when we talk about a "plea bargain," then what we're really talking about is an agreement negotiated between the parties and upon which accord is ultimately reached. Perhaps a bit more precisely, a plea bargain should be (and often is) referred to as a "plea agreement" and we should leave it to the value system of the respective parties to determine if it was a bargain or not.

Splitting legal hairs a trice, when an offer for a plea bargain is extended, it is usually referred to as a "plea offer." Only when and if it is accepted does the offer become a plea agreement.

Generally, a plea bargain — if an offer is extended by the prosecution — involves an agreement to plead guilty, especially to a lesser criminal offense, in exchange for some concession from the prosecution, such as dismissal of one or more serious charges.

In a sense, a plea agreement is a contract. As in any contract, an offer is extended, a bit of haggling and some posturing most times takes place, the offer is accepted or else a counter-offer is teed up and only when the parties reach a meeting of the minds are hands shaken, either literally or metaphorically, and is the deal then chiseled in stone.

Before we get to the "why" part, let's spend a moment first on Rule 11. More precisely, in the Centennial State anyway, C.R. Crim. P. Rule 11 (Colorado Rules of Criminal Procedure Rule 11), entitled "Pleas," provides, in its first part that, "A defendant … may plead guilty, not guilty, not guilty by reason of insanity (in which event a not guilty plea may also be entered) or with the consent of the court, nolo contendere" (This bit of Latin gobbledygook is translated as "no contest," the details of which I will tackle in a future column). Further down, as you work through the various subsections of the rule, you come upon, such as in the classified section of the Vail Daily, the part that deals with "bargains." It goes something like this;

1. Where it appears that the effective administration of criminal justice will … be served, the district attorney may engage in plea discussions for the purpose of reaching a plea agreement …

2. The district attorney may agree to one of the following depending upon the circumstances of the individual case:

(I) To make or not to oppose favorable recommendations concerning the sentence to be imposed if the defendant enters a plea of guilty or nolo contendere;

(II) To seek or not to oppose the dismissal of an offense charged if the defendant enters a plea of guilty or nolo contendere to another offense reasonably related to the defendant's conduct;

(III) To seek or not to oppose the dismissal of other charges or not to prosecute other potential charges against the defendant if the defendant enters a plea of guilty or nolo contendere.

No judges, just lawyers

The rule goes on to provide that defendants in similar situations should be afforded similar opportunities for plea agreement, that the judge may not participate in plea discussions, and that the judge in every case has the ultimate authority to accept or reject terms of the plea.

When a defendant reaches terms with the district attorney, he or she will sign an "advisement and plea of guilty" which details all the rights the defendant is giving up by entering into the agreement rather than trying the case, acknowledging those rights and agreeing to the terms of the plea.

As for the "why" of plea agreements, see above. From both the perspective of the people who the District Attorney represents, and that of the accused, plea agreements promote efficiency and economy and ensure certainty. Instead of the "crapshoot" of a trial, the costs, congestion of the court's docket and the endless attenuation of matters legal, by reaching terms acceptable to both sides, justice — or at least some fair facsimile of it — is served.

Instead of the ax of prosecution hanging overhead, plea agreements, are the Monopoly Card to resolution. While the card may not be of the longed-for "Get out of Jail Free" variety, at least an end is reached on terms both sides have determined they can live with.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, robbins@slblaw.com.