Today Only?

In the markets of South and Southeast Asia, where I learned to haggle, one of the gambits used by vendors is to claim that the offered price has to be accepted right now: “for you, today only, fifteen Rupees!”

They never mean it. Turn and walk away, and the price goes down. Leave and come back the next day; the merchandise is still there, and the vendor is one day more interested in unloading it.

The words aren’t literally true; they don’t contain any information beyond, “I am willing to sell this to you for fifteen Rupees”; they’re just part of the ritual, the game.

I heard the same line the other day in court: a prosecutor told a criminal-defense lawyer, “this offer is only good for this setting.” (For you, today only, fifteen years!)

Did the words mean what they purported to, or was this just part of the ritual? Put in practical terms, what does the criminal-defense lawyer tell his client when the client asks if he can have some time to think about the plea offer?

Chances are good that the same factors that led the prosecutor to make the offer today will still exist when the case comes back to court; the merchandise will still need to be sold. Prosecutors want to resolve cases without doing too much work but without getting in trouble with their supervisors or giving away the shop. There might be a reason that making the same offer at the next setting would interfere with these goals (chief isn’t here today, will be then and will nix the deal; case at a point where ADA has to get it pled or do some actual work). If so, the prosecutor will generally identify the reason; the defense lawyer then has to decide whether the prosecutor’s assessment is correct, or whether the plea offer is likely to remain the same (or, as usually happens, get better). Without a plausible reason for the offer to get worse, though, “today only” in the courtroom means what it means in the bazaar: it’s part of the ritual.

When the prosecutor’s motivation for getting the defendant to plead guilty now is to avoid work that will have to be done before the next setting, “today only” is usually not the literal truth: there will be work to be avoided between the next setting and the one after that too.

What if the work the State does between this setting and the next might make the State’s case stronger? Before negotiations begin, the diligent criminal-defense lawyer will be more familiar with the case than the prosecutor. She will know whether it will look like a better case or a worse one to the prosecutor after the prosecutor does a little more work.

But what if the prosecutor’s “today only” offer comes before the defense lawyer has had an opportunity to investigate the case? She has to convey it to the client, naturally, but how does she help the client evaluate the offer? She can’t. It’s presumptively a bad offer, and here’s Bennett’s Opening-Bid Precept: the better it looks, the worse it is.

Even when it doesn’t means what it says (that the offer really will go away for all time if not immediately accepted), a prosecutors’ deadline is not always devoid of information. At the very least, the ultimatum tells the defense lawyer that the prosecutor is playing games, which is helpful information to have.

Often the deadline even contains information that the prosecutor would rather conceal. The question came up recently of how to deal with a prosecutor who was threatening to rescind a plea offer if the accused insisted on notice to which he was constitutionally entitled. In that case, the ultimatum told the defense lawyer that the prosecutor had a real problem with his case; the lawyer would have been a fool not to explore and exploit that problem.

The courtroom is not the bazaar. We are not haggling over bangles. Our negotiations change people’s futures; they can tear families apart or give hope to the lost. But the lesson of the bazaar applies. When a prosecutor tells you that the offer is open “today only,” you will almost never go wrong if you turn and walk away.

22 Comments

  1. Any thoughts on written prosecution offers that contain an “escalating timeline” … ie. “this is the offer at this stage of the case,” “this is the offer at the next stage”, etc?

  2. Today I got my first “before and after” offer. (It only took 28 years of practice.). I told the ADA I was filing a motion to suppress a blood test result in a DWI 2d. He responded by tacking on 30 days as a condition of probation to the “before” offer to come up with the “after” offer. My client said, to his credit, that he wanted to see the “river card.”

  3. A friend’s daughter was offered a “today only” by the prosecutor. She had been caught shoplifting and her attorney called her and said she had to either accept the deal that day or forget about it. The prosecutor’s excuse was that a visiting judge would be holding court and that he would sign-off on the plea whereas the court’s regular judge would not. She hurried down to the courthouse and signed the agreement. She received a small fine and no probation on a class B. Sometimes those deals can be beneficial…

  4. Charles, that’s hilarious. One of my favorite lines when a DA gives me a now or never offer is to tell her, “I think we’re going to see the river, if you don’t mind.”

  5. Charles, that’s hilarious. One of my favorite lines when a DA gives me a now or never offer is to tell her, “I think we’re going to see the river, if you don’t mind.”

    And more substantively, you can usually get those offers back if you need to.

  6. Steve, “Bennett’s Opening-Bid Precept” applies whether the offer is verbal or written.
    In some cases you might want to counter with a written defense offer containing a deescalating timeline.

  7. Mr. Parr ET Al, (@10:01 PM)

    I certainly understand the concept of unloading certain cases “while the Cat is away”. Obviously if the Judge doesn’t follow through with their own pet prohibition rules, only to allow another to do the opposite in their absence – truly is tacit approval of a violation of that rule. Regarding your friend’s daughter (and obviously not knowing all the facts I cannot comment on the client’s and her lawyer’s “wisdom” in taking the pronto-plea offer). I DO hope, for her future, she wasn’t a first offender and maybe when you say she didn’t get probation she DID get deferred adjudication. I mean a FINAL conviction for THEFT on a teenager?! If that was the case then the pronto- plea in my humble opinion was “Mucho Muy Mal“.
    Another point in General: as a prosecutor for over 14 years and “something else” for almost 12, any jurisdiction that has a “no plea on trial day” policy – is just not being or realistic. This kind of docket control measure completely ignores the obvious. Any seasoned courthouse practitioner worth their salt knows there is something chemical in the brain about a bailiff announcing: “Judge, the jury is on the way or in the hall”. So many times the case gets dismissed, justly plead to, or ultimately tried. But these options should NEVER be taken away from the people in the pit actually trying the case.
    Sometimes a “POLICY” is just an excuse not to think. Remember trying to return something to a retail department store and getting this retort back: “I’m sorry – we can’t do that…it’s against our policy. I prefer general guidelines. Human behavior and human institutions don’t fit well into tight little boxes of imaginary boundaries.
    The greatest power a judge has is NOT to always be in trial, but rather have the power and ability to make room for trial and the chips fall where they may. The greatest power a prosecutor has once a case is filed is to justly evaluate the case and don’t overplay your hand with false deadlines.

    FIAT JUSTITIA, RUAT CAELUM

  8. Brad, hell if I know. I took it from Judge James E. Horton of the infamous Scottsboro Case. If I may be allowed a little leeway to cut-and paste:

    “If the tale of the Scottsboro Boys can be said to have heroes, there is no person more deserving of the label than James E. Horton, the judge who presided over Haywood Patterson’s second trial in Decatur. Judge Horton’s decision to set aside the verdict and death sentence of Haywood Patterson, made despite warnings that ordering a new trial for Patterson would end his career as an elected circuit judge, was a remarkable act of courage and principle. In May of 1934, Horton, who had been unopposed in his previous election to the bench, faced two primary opponents. He finished second in the primary, then ran hard in the general election, but lost 9,416 to 6,856. No one doubted but that his defeat was attributable entirely to his decision in the Scottsboro case. Horton retired from politics, and devoted his remaining years to private practice and his plantation. When asked about his decision in a 1966 interview, Horton quoted what he said was a phrase often-repeated in the Horton family, “fiat justicia ruat colelum” — let justice be done though the heavens may fall. Horton died in 1973 at the age of ninety-five.”

    Tell Jim, Gilbert & Bill I said Hello! –

    Respectfully – Larry

  9. Mark, thanks for writing this post. It has been a point of contention for me for several years now. It is something I’ve heard (and continue to hear) in almost every military felony-level trial before the preliminary hearing (called an Article 32 in the military).

    I never quite understood how an aggravating factor in an alleged crime could be the accused causing the prosecutor to do their job.

  10. One thing that I think is neglected in your post, Mark, is how much the particular prosecutor’s personality plays in this “gambit.”

    I guess that is where experience within a certain court makes the difference…

    But, overall, I do agree with your sentiment.

  11. I understand on the quote. At least we agree on the translation! Great story,too. I will tell the “Young Guns” (Jim and Gilbert) and Colonel Taylor “Howdy” from you.
    And Mark. . . That “before and after” offer thing. . . Normal?

  12. I referenced your post in my blog in a post that looked at it similarly from the military perspective. I received a comment from a prosecutor who used to face me in the military courtroom, and I hope you don’t mind me sharing. It references “busy jurisdictions.” I heard Texas has a couple of those. The two paragraph comment is as follows:

    “While I agree that the Government should base a deal on the facts, you cannot ignore the additional value of time and effort. This isn’t a matter of how “hard” the job is; rather, it is a matter of resources.”

    “Come to the table and save some resources, and you shall be rewarded. Otherwise, the only value of the deal for the Government is the guaranteed result (which is significant, don’t get me wrong). But there is more at play. Particularly in a busy jurisdiction. You cannot discount the value of preservation of time, expense, and inconvenience (with regard to witnesses, not the trial counsel, whose job it is to be inconvenienced).”

  13. In my area, all the young prosecutors go on the record stating that the “deal is off the table” at the opening of a pre-trial hearing. That scared me at one time, especially when rejecting a deal could mean more exposure for the client. But 95% of the time it is a scare tactic. The other day a judge was trying to get a plea from my client before he ruled on suppression. The young prosecutor was adamant about the fact that she already said the deal is off the table. To the young prosecutor he said “Would a deal not better than a dismissal?” The prosecutor stood her ground stating that this punishment was the result of my wasting the resources of the court on suppression issues. Funny I thought, I guess a jury trial would not waste any resources. Of course, I held my tongue knowing the Judge is thinking this prosecutor is being silly.

    Just yesterday, I rejected a plea in a felony case simply because the judge insisted my client plead immediately and we refused to, even though it was a pretty good deal. The Judge to the prosecutor- “Indict him, the deal is gone.” An hour later the prosecutor called me. The felony is gone.

    I think good defense attorneys know what a good deal is by gut. Rarely if ever is the first offer good, especially in felony cases.

  14. In reply to Larry Standley:

    The charge was reduced from a class “B” to a “C”. The girl was only 17-years-old but was caught with $800.00 worth of clothing and the regular judge was adamant that she serve probation which her mother didn’t want because her daughter was slated to begin college in another state within a couple of months. The regular judge knew this but has a standing rule in his court that no one be allowed to simply pay a fine without probation. This girl has now graduated, with honors, and is said to be doing well.

  15. Re: Mr. Parr @ 8:23 am.

    Mr. Parr,

    Glad to hear the young lady is doing well and it all worked out. I have to be careful with the “written word” because intent can be wrongly interpreted. Many times though young people and young lawyers will jump at even a class c theft conviction thinking it is merely “like a traffic ticket” only later to find out it is still considered a crime of moral turpitude and can limit future opportunities – even jury duty or cashier at a fast food restaurant. In Texas there is a thing called a “Special Expense Fee” which is basically a Class C Deferred Adjudication for a short period of time. Once this “fee” is paid the case is dismissed. This is much preferable than a conviction even on a Class “c” theft. Bottom Line: with teenagers and “mere” shoplifting – the lawyer should fight tooth and nail to avoid ANY kind of final conviction.

    On another post mentioned about Judges getting involved in plea negations, in my humble opinion, there are some MAJOR boundary violations going on. If you put courtroom situations into sports analogies it makes more sense regarding what should and should not occur between the court and “players”.

    Would a Referee be talking to both coaches with or without a player present trying to get either side to do this or that play? Judges should allow the “players” to exercise their 6th Amendment right and stay out of plea negations. Some courts even call the parties up to the bench and tell the accused – in 3rd person via their lawyer – “Well I’m sure your client knows that even if they get probation from the jury “I” have the authority to still tack on so many days jail as condition. NOT GOOD!

  16. Hello Mr. Standley,

    Excellent point about collateral consequences. Criminal infractions, even with “just” a fine are still ordinarily permanent public records.

    In your experience, do non-violent first offender misdemeanor defendants usually get a chance at deferred adjudication or its equivalent?

    Cheers,

    Jeff Deutsch

    PS: Are you saying judges should stay out of plea negations – that is, not quash people’s plea agreements with demands like attaching jail conditions to probation, or should they stay out of plea negotiations altogether?

  17. Re: Questions propounded by Mr. Jeffrey Deutsch @ 4 October 2010 at 2:40 pm:

    Dear Sir,

    Generally speaking (because this Blog does cater to a wide variety of individuals – both in and out of the legal system – I will answer your two questions this way: 1) Yes – “non-violent first offender misdemeanor defendants usually get a chance at deferred adjudication or its equivalent”, but this greatly controlled by the plea offering prosecutor, and the Judge approving same;

    Regarding your question about whether or not ” judges should stay out of plea negations altogether?” In answering this question it is important to realize there are three factors at play: 1) Any community supervision plea bargain agreement is always subject to approval by the court because; 2) Probation IS basically a contract between the court and defendant; As such, the Court should ALWAYS have the authority to imposes this or that additional condition on the probation;. 3) HOWEVER, – IF the additional conditions are not agreed to by the defendant – “once that card is played at the bench” (the plea agreement between the State and Defense) – then the defendant should be given the chance to withdraw that plea – because the court has altered the plea agreement AFTER it was signed within the 4 corners of the plea documents.

    Judges must always be involved in possible modifications of community supervision plea offers ( so long as everyone signs off on it) because if that probationer later re-offends – in the worst possible way- it won’t be the lawyer, prosecutor or defendant the media will seek out to sell air time to. It will be the Judge who is bound ethically to keep their mouth shut. Consequently judges must always have input on who they allow to sign their name next to thereby allowing that person to avoid prison:

    “EXTRA, EXTRA, READ ALL ABOUT IT>>JUDGE GIVES REGISTERED SEX OFFENDER PROBATION & HE IS ALLEGED TO HAVE ATTACKED AGAIN! Hope this helps.

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