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

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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.

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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.

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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.

Negotiation

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.

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.

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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