Why Leaving an Open Plea to a Judge can be Risky
Today in court while waiting to help another attorney translate for a Spanish speaking defendant, I witnessed a very interesting open plea hearing. It was a situation that happens sometimes in cases where the defendant knows he is guilty, wants to plead guilty, but the defense and the prosecution cannot agree on the punishment. In this situation the defendant has the ability to plead guilty and go before the judge without an agreed recommendation. This is basically an open plea where you are putting your life and the punishment in the hands of the judge.
The Perils of Open Plea and the Judges Decision
This type of plea can be very dangerous, especially when the judge does not tell you ahead of time what he/she is going to do, and when they ask for a hearing/testimony to decide. For example, if the charge is a 3rd degree felony that is eligible for probation, the judge could give probation, or he could give anywhere from 2 – 10 years in prison. This could be a scary situation for someone who is being offered the minimum of 2 years by the prosecutor, because if the judge decides that probation is not appropriate, the best that can happen is exactly what was offered, but it could be much worse.
Details of the Case
The case I was watching involved an elderly man who claimed a young man put a gun to his head outside of the young man’s home. Months later the old man returned because he wanted to teach the young man how it felt to be a victim. The facts were disputed, but what was undisputed was that a struggle ensued, and the young man shot the older man 4 times, causing him to lose the use of an eye.
The defense was asking for probation for a multitude of reasons, the prosecutors were asking for prison time. The defendant was very lucky and the judge gave him 5 years deferred adjudication, which is a special type of probation that if he completes it successfully will not be a conviction on his record.
In this situation it turned out good, but I have seen many similar situations where is does not turn out the way the defense wanted. Again, it’s very dangerous, and it’s important to talk to others to find out the judge’s tendencies before deciding to proceed in this manner.
In less serious cases, the judges will sometimes tell you ahead of time what they will do if you “plea open”, and that is not as scary. But it is definitely something that is case by case, and defense lawyers and defendants alike must proceed with caution.