The Falsely Accused and Plea Bargains

What exactly is a "plea" agreement? Why is it pushed so often, not only by the prosecution, but by the defense attorney as well? When an accused does accept a plea, who actually wins?

Although a plea has many names; nolo contendere, (no contest) or an Alford, (no admission of guilt), regardless of what it is called, it is still an admission of guilt by an accused to an offense that they may not have committed. So, why would anyone, in their right mind, "agree" to admit to a crime they did not commit? Believe it or not, many times it is sold to the accused as the most expedite, easy and beneficial way to dispose of their problem but, in reality, who really wins? The defense attorney wins. They earned a fee for what usually amounted to a very limited amount of work. The prosecutor wins. The case is disposed of and off their calendar. Who loses? The one who took the plea and, more often than not, they have no clue as to the overall ramifications involved.

Over the years, I have known quite a few people who accepted plea bargains. In every one of those cases, the accused thought that it was the right thing to do at the time they did it, but each of them realized later that it was one of the biggest mistakes they ever made.

One perfect example was a man who was offered a plea and told by his defense attorney that it would be a walk-in-the park. He would not serve any time and was risking prison if he chose to go to trial. Mainly out of fear, he accepted. Immediately after he stood before the Court and admitted that he knew exactly what he was doing, he was ordered out of his own house. He had three children and, since he was no longer allowed to be around children, that meant his own as well. In addition, he was ordered to complete a sexual abuse treatment program. He was not an abuser, yet unless he admitted that he was, admitted that he was guilty of the crimes he had been charged with and admitted that he needed help, he could not successfully complete the "required" program. Failure to do so was a violation of his probation. If all of that was not enough, soon after he entered his plea and it was accepted, he had civil lawsuits filed against him by the accusers. Obviously, that was a major concern. The jury in the civil case did not have to worry about deciding if he had done anything wrong. That was already decided when he accepted the plea. The jury's only issue was, how much in "damages" should they award?

Now, there can be some valid reasons for a plea, but they are rare and most of the time they really amount to the fact that it was the path of least resistance for everyone involved. Some defense attorneys will become locked into plea negotiations and completely fail to prepare any type defense. Obviously, that can be a real problem for the accused should they decide to fight the allegations. Some defense attorneys will tell their clients that, because of the mandatory sentencing guidelines, they would be far better off by accepting the prosecution's offer. It may be very difficult for someone who is facing a life sentence to ignore a plea where there is either no, or a minimum amout of prison time involved. Even 5 to 8 years is far better than life without the possibility of parole.

Although I have done investigative work for the past 40 years, since I began to specialize strictly in defending those falsely accused of child sexual abuse in 1989, I have seen one case and one case only where I actually recommended that my client take a plea. My client, who lives in Texas, was falsely accused of sexually molesting a young girl and was facing life in prison. Shortly after I became involved in his case, my client discharged his first attorney, an attorney who would consider nothing but a plea and had prepared no defense whatsoever. My client retained someone he had been referred to, but quickly discovered that his new attorney was far less than adequate. He talked a great game, but accomplished nothing. As my client began to attend various "status" hearings in his case, it became painfully obvious that the judge did not care for my client's attorney at all. On the day before my client's trial was scheduled to begin his attorney contacted the judge's clerk, said he was sick, that he was under a doctor's care, that he was restricted to bed rest and could not attend trial the following day.

The next day, per his attorney's instructions, my client arrived at the courthouse. When his case was called, he stood and told the judge that his attorney was not present. He told the judge that his attorney was sick and that he had notified the Court's clerk and requested a continuance the day before. The judge told my client his trial would go forward, regardless of whether he had representation or not. Needless to say, my client, who had no one there to represent him, was in shock. He was out of time, had no defense and no attorney.

As he waited in the courtroom, my client watched as another attorney, who was representing someone else, seemed to have an excellent rapport with the judge. My client stopped him as he was leaving the courtroom and asked if he could represent him. After explaining the circumstances, that attorney went and talked to the judge. When he returned, he told my client that if he was retained, the judge would allow a continuance and, if not, his case was going forward, with or without representation. That attorney told my client he required a $50,000.00 retainer. Obviously, my client had absolutely no choice at all, so he agreed.

The attorney returned to the judge, advised that he had been retained and the case was continued. Immediately thereafter, my client met with that attorney and advised him that he had previously retained me and an Oklahoma attorney to assist him. His attorney told him quickly that he had practiced law for many years and the last thing he needed or wanted was outside interference from anyone.

Just after paying that attorney his retainer, my client found that he had jumped from the frying pan directly into the fire. There was absolutely no question that my client was innocent. There was also no question that the only way that my client could prove his innocence was through depositions that would need to have been taken outside the State of Texas and would have required the local Court to issue subpoenas, yet his attorney refused to even consider that.

In addition, my client had been thoroughly evaluated by testing that had been widely accepted in the State of Texas, yet his new attorney demanded that he complete an evaluation with an examiner of his choice. That examination was absolutely absurd. My client's attorney told him he failed, that the testing indicated that he had pedophilic tendencies and that he should take the plea the prosecution was offering.

In that his trial was only days away and nothing had been done to prepare a defense, his initial testing would not be considered, and a conviction was almost inevitable, my client had no choice other than to accept the plea. He could not change attorneys again, he was out of time, he was out of money, and he had absolutely no defense.

One other example was a man who accepted a plea because he did not want to "put his family through a trial," and because he was not entering a guilty plea to anything involving child sexual abuse. As a part of that agreement, the Court ordered him to serve 5 years probation. He felt great until he found that he had to register at his local sheriff's department and that he could not leave his state without permission during his 5-year probation term. In additon, he exposed himself to civil liability, but he was not concerned about that either since, as he stated, he was "suit proof," implying that he had done away with anything anyone could get from him in a civil suit. Two things come to mind; One, if a Court finds that someone has hidden, transferred or done away with assets to avoid a probably judgment, they can reverse whatever was done and two, in this case, the child was 14-years old. That child can bring a civil suit through his parents at any time, or he can wait. The statute of limitations do not even begin to run on his case until he reaches the age of majority, so the fact is this man who is not concerned is exposed to a possible civil suit for at least the next 10 years. In addition the accuser in this case could easily come back later and claim sexual abuse at another location and this man could easily find himself fighting for his life. There are no easy decisions in these cases, but the best advice is, "Do not agree to a plea for a crime you did not commit." It may appear to be the best decision, but consider the long-term effects before agreeing to anything.

As I stated, it is rare when a plea is proper, but before ever considering one, keep the following in mind:

In some states, the Court does not have to follow the prosecutor's recommendation and can impose a much more severe sentence than what the accused agreed to. When an accused does agree to accept a plea, they will stand before the Court, acknowledge that they fully understand what they are doing, and that they understand that the Court does not have to follow the prosecutor's recommendations. It is rare when that happens, but it can. Fortunately, in most states, if the Court does impose a greater sentence than what was agreed to, the accused will have the right to withdraw their plea, but again, that is not always true and it is certainly something that should be considered.
You lose your right to any appeal and all other post conviction relief, unless you were subjected to threats or coercion, unable to fully understand your rights, or if the Court failed to advise you on record as to what rights you are waiving. The "on the record" is normally what voids any and all future rights because the accused acknowledges that they do understand their rights, that they understand the decision they are making and that they were not threatened or coerced in any manner.
You are still considered "guilty," even under a nolo contendere, (no contest) or Alford, (no admission of guilt). In some Alford pleas, a violation of probation means your sentence will revert to the maximum imposed by the State as if you had been tried and convicted.
You expose yourself to civil liability and can face a lawsuit from the accusing child or children.
Under Megan's Law your name and place of residence will be posted publicly. You will most probably also have to register as a sex offender annually and every time you change your residence address. Some states require registration for life.
You lose your rights under the Constitution, such as your right to vote, your right to carry a firearm and your right to a search warrant. Authorities can search your premises at any time day or night without a warrant or probable cause.
You may be ordered to stay completely away from children. This can include your own children, regardless of whether or not they were the alleged victims.
You may be ordered to submit to a sexual abuse treatment program and failing to complete it properly could result in a violation of probation.
If you are a licensed professional or work in an industry that has security clearance requirements or a morals clause, you may very well find your career history.

Obviously, I am not an advocate to accepting a plea under most circumstances. It may well seem like the safest, easiest and most expediate thing to do at the time, but most everyone finds later that they made a terrible mistake, so the question is, "Can a Plea be set Aside?"
Under some circumstances, you can successfully petition to have a plea set aside, but it is difficult, and far more difficult than reversing a conviction after an accused was found guilty at trial, simply because in a plea, the accuser has admitted in Court and under oath, that they knew, understood and agreed to their plea arrangement. I use this terminology because I have had people tell me, "Oh, I never said I was guilty," or, "My plea did not require me to say I was guilty." Personally, I could care less what the wording was, agreeing to a plea is admitting guilt regardless of how it is worded.
The real trick to setting a plea aside is being able to prove that the person who accepted it was not mentally able to do so.
If a plea is set aside, in most cases, the accused then faces trial and a possible conviction, so the best advice is to prepare a defense as you work with the plea.