Plea Offers

When a plea offer is made by the State, the defense attorney must present that offer to the client. Offers are not controlled by the defense attorney. At times, clients begin to feel like their attorney isn’t working for the client because the offer is so harsh.

Understand that your attorney advocates for your side. That being said, your attorney cannot change the law, the facts of your case, the political views of the prosecutor’s office or just about anything except to discuss the case with you and work to persuade the prosecutor. Your attorney can use the information you provide and investigation to shift the balance to your advantage in the case.

An attorney might suggest pleas to other laws that may fit your circumstances as an alternative. Evaluating these options is part of the negotiation process.

If you do not like a plea offer and an agreement cannot be reached, then your options become very limited. A plea of guilty without an agreement, throwing yourself on the mercy of the court, may work to your advantage depending on the judge and the charges. In that case, though, the judge cannot change the charges to which you plead or the maximum/minimum sentence.

The ultimate option, though, is a jury trial. Every criminal defendant is entitled to a trial by a jury of his or her peers.

© 2016 Nancee Tomlinson


Plea Negotiations

More than 90% of criminal and traffic cases resolve with a guilty plea of some sort. In many cases, guilty pleas are negotiated. Other times, a client may choose to enter a plea of guilty without a plea offer because we cannot reach a meeting of the minds with the State.

How can an attorney help with this?


An attorney provides you with important information. You should know the maximum and minimum potential punishments, which usually include time in the local jail or in prison. Also, be aware that the law usually permits the judge to assess a fine.

Motions can be filed which might result in evidence the judge throwing out some evidence. Attorneys with criminal trial experience have the training to know whether these motions are viable in your case.

Plea discussions can be influenced by factors like possible witnesses, affirmative defenses, and other factors with which attorneys are familiar. Also, other lesser offenses maybe an option for a reduced plea offer and a different outcome.

Don’t just assume that the offer made is without the possibility of change. Rushing to resolve a case on your own could result in an outcome that you will have to live with the rest of your life. Consulting an attorney will help you make better, wiser decisions. These choices end up on your criminal record, available to employers in many cases.

© 2016 Nancee Tomlinson

Mistrial – Hung Jury

During jury deliberations in a criminal jury trial, a jury must reach a unanimous verdict. All the jurors- 12 for felonies or 6 for misdemeanors- must agree about whether the defendant is guilty or not guilty.

If after some period of time the jury cannot decide on a verdict, the judge may declare a mistrial. The mistrial will be referred to as a hung jury. Lawyers and judges use the term hung jury to mean that the jurors are fixed in the decisions and unable to make a unanimous decision. During these types of deliberations, it feels like I spend quite a bit of time staring at the door to the jury deliberation room.


When this happens, the State controls what happens next. The prosecutor for the State may make a much better plea offer might be presented by the State and should be carefully considered.

to try the case again at another trial calendar. At other times, the State may choose to dismiss the case believing that the best effort to try the case resulted in a hung jury and another jury would likely have the same result. Finally, the prosecutor may well decide to try the case again at the next trial date.

In cases of more significant charges, the State might decide to dig deeper and investigate the case further in an effort to uncover more evidence for that second trial.

A hung jury that results in a mistrial doesn’t mean the case is over, it simply means that there may be more options available.

© 2016 Nancee Tomlinson

Choosing a Jury Trial

Every person charged with a crime in the United State has a right to a jury trial. Clients decide from time to time that a trial is necessary. In those instances, when the prosecutor would not bend and the balance to obtain a dismissal or reach a negotiated plea never shifted, we have a jury trial.


Jury trials are a right but also a risky proposition. No one can predict what twelve people will decide based on the evidence they hear at trial.

Find a lawyer with the experience to evaluate your case honestly for you; one who does not promise outcomes. No one can guarantee a specific outcome. Zealous advocacy and sound advice are what you need.


The week of February 8, 2016, Nancee Tomlinson spent the week advocating for a 17 year old who was charged with murder. Ed Tolley and Nancee Tomlinson resolved the cases for their clients to Aggravated Assault pleas.

Both young men were charged with Malice Murder and Felony Murder, both of which carry a life sentence (30 years before parole is considered), Aggravated Assault, and three counts of Possession of a Firearm During the Commission of a Crime. Nancee negotiated a plea to Aggravated Assault and False Statements with a 15 years to serve 5 year sentence.

Legal Definition: Drug Distribution

Frequently the State charges a client with possession with intent to distribute a drug. The client may have possessed scales, packaging equipment-sandwich bags, and some amount of an illegal or controlled drug. In other cases, the intent to distribute can stem from the weight of the drug found.

Clients often recount that the drugs were just to share, “I didn’t sell” the drugs or make any money. Under the law, distribution does not require payment. Imagine you buy a large bag of Halloween candy. You take the candy to a friend’s party and place it in bowl for everyone to share. That, my friends, is possession with intent to distribute Halloween candy. Giving away an item means that you are distributing the item whether you profit or not. Under the law, taking an amount of drugs to share with others constitutes possession with intent to distribute.

In drugs cases, the law provides many ways to challenge the charges. Understand that “I shared but I didn’t make any money” isn’t one of the challenges.leftover-candy

© 2016 Nancee Tomlinson

Legal Definitions: Hearsay

One of the great challenges of representing clients revolves around language and word usage. Many times the legal definition and common understanding of a word differ.

Hearsay falls into that category. Recently, while working to resolve a case for a client whose codefendant just entered a guilty plea and agreed to implicate the client, a family member said, “that’s just hearsay.” We discussed what the family member thought was hearsay, so that I could be understand the concern. Under the common understanding-not the legal definition-if a codefendant, or eyewitness for that matter, testifies about having observed an event, there is a false belief that this testimony is hearsay and that this testimony is worthless.


To unravel this misapprehension, we must talk about direct evidence and hearsay. First, an eyewitness, regardless of recent psychological publications, is classified as direct evidence that a crime was committed. A witness, who is a codefendant or a just an observer, may testify to what that witness observed. In my client’s case, the codefendant agreed to testify about actions my client took at the time of the crime: that the client was driving a motor vehicle involved in a crime. Like it or not, this evidence is admissible and cannot be challenged as hearsay.

Second, hearsay, in the situation of this particular client, would be a witness who testifies that she “heard” that the client was driving the car in question. With no direct observation, that witness’s testimony falls into the category of gossip and would not be admitted. The legal definition of hearsay varies from state to state but generally hearsay is an out of court statement offered by a witness to establish the truth of the matter asserted in the statement.

Be sure that when decisions are made in your case, that you make them based on the actual rules of evidence after discussion with counsel. Do not make decisions based on what you may have heard from someone who is not a lawyer.

© 2016 Nancee Tomlinson

Picking a Jury

The first aspect of a jury trial is selecting a jury. Which 6 or 12 people will hear the case and decide whether a person is guilty or not guilty?

The phrase, “picking a jury” misrepresents what happens in jury selection. Also known as voir dire, a French phrase which means “telling the truth,” jury selection thrives on direct discussion between potential jurors and counsel for the parties. Potential jurors provide basic information, usually by answers to a written questionnaire: name, area of the community one lives in, profession, spouse, spouse’s profession, prior jury service, and, in criminal cases whether one is related by blood or marriage to someone in law enforcement.


Then, attorneys may ask questions of the jurors that relate to specific ideas in the case, the law surrounding criminal trials, what local organizations potential jurors are involved with, and many other topics.

Potential jurors who are related to a defendant or to a prosecuting witness may be struck for cause. A decision made by the judge to strike a potential juror for a legal reason is called a strike for cause. Neither side loses a the peremptory strike available when a potential juror is released for a legal cause.

Attorneys and their staff track the answers to questions, their impressions of the potential jurors, and how the attorney feels about the potential jurors on a chart. After enough jurors are qualified, counsel and clients have about 15 minutes to determine which jurors to strike. Defense counsel and client will evaluate who to strike and who to keep. During that discussion, counsel will likely be able to predict who the State will strike as well.

Jury selection really comes down to removal. The question is which potential juror does a party absolutely NOT want deciding a case? Clients usually fixate on the jurors they believe will see the client’s side of the story. Inevitably, the State will strike the jurors a client really wants because the prosecutor feels that those jurors will lean more towards the defendant.

In the end, the jury will be made of the people who fall in the middle of the spectrum between pro-prosecution and pro-defense.

© 2016 Nancee Tomlinson