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Old February 25, 2010, 08:19 PM   #1
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Plead guilty or fight the good fight.

I've browsed a bit but the first post here. I posted this on THR and one of the moderator's from here asked me to repost it.....


It seems that whenever a legal case comes up in the news, personal experience, etc and gets posted on THR or elsewhere the canned response is somewhat along the lines of “I would fight that all the way to the supreme court,” “I would be rich after I got done with them,” “that cop (prosecutor, judge, you name it) would have picked the wrong person if it were me,” “My lawyer would eat that case up,” or something similar.

Is that realistic?

Currently, I am reviewing a couple of different cases and several more have come across my desk in the past (I review use of force cases professionally from attorneys, individual clients, etc) that may challenge these strictest ideals. I will not go into specifics or give the locale, but suffice it to say that I have seen a rash of these lately from more than one jurisdiction.

A client is confronted with an imminent threat and presents a firearm in defense of themselves or others. One case I am thinking of was a disparity of force situation where the defender was confronted by five aggressive individuals bent on doing him serious harm. They did not appear to be armed but five on one can arguably inflict grave bodily harm. Another case involved a perp with a pipe/crowbar type device. Neither case allowed for the client to exit the scene gracefully and the client did not appear to be an instigator. Who knows what story the others might create in court. In any event, the situation is thankfully resolved without a shot being fired, the lack of anyone being hurt attributable to the presence of the firearm.

The client is safe, the police respond, and statements are taken. Despite a person’s justification of self defense it is a fact that the police and/or prosecutor may see it different. That is regardless of how justified you actually were.

The prosecutor charges the client with felony assault or a similar crime. As is often the case, during pretrial litigation a plea bargain is offered to lower the charge to a misdemeanor assault charge.

So here’s the question…. Do you accept the plea to a misdemeanor which is accompanied by say 10 days in jail or do you maintain your innocence and fight the felony charge?

I understand that every one of you would want to say that you would fight the charge. Unfortunately, again no matter how justified you were in your actions it is not always as simple as that. You see, in the unlikely event that you lose your felony case you are facing a minimum of 1 year in jail. What’s worse, many jurisdictions have a 3-5 year firearm enhancement tacked on to any conviction. In the case of the 5 aggressors on 1 apparent defender, that is five charges. You do the math and realize that even if the judge sentences you to the minimum, you are looking at several years based on the firearm enhancement (it is per charge). The judge cannot reduce that in most jurisdictions.

Think it couldn’t happen? It happens more than you may realize. Yes, prosecutors will often plea a case down to a few days in jail that would otherwise carry several years if convicted. Why? Nobody knows for sure. Maybe their case is weak, maybe they have a large caseload, and maybe some conviction looks better than no conviction. They don’t want to roll the dice but they are willing if you don’t plea to something. The question is, do you roll the dice with several years of your life or do you plead guilty to a “small” charge you did not commit?

So now let’s think about it, having been fully justified in your actions and having had no alternative but to present your firearm, do you now bite the bullet (no pun intended) and spend a few days in jail for a crime you did not commit? Do you stand in front of the judge and the people who attacked you and shamefully say, “Guilty. I assaulted them.” Do you roll the dice and watch your family suffer, losing their sole source of support, in the arguably highly unlikely event you are found guilty?

This is all food for thought. I am not looking for advice on the cases I am reviewing. I am not an attorney and I do not offer advice nor opinions to my clients on how to proceed. I simply review cases, provide detailed reports based on the case files, develop the strong and weak points of the cases, explain to prosecutors/defense attorneys/clients what “should” have been done or would be “reasonable” to a trained/untrained person, detail force continuum procedures, indicate what an expert witness (such as myself) might testify to, etc.

Hopefully this will provide for some good discussion but even more so, get you to think about what you might do. Remember, it is your goal to survive physically, mentally, and legally.
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Old February 25, 2010, 08:28 PM   #2
Brian Pfleuger
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All I can say is that I would not plead guilty to a crime that I didn't commit. A speeding ticket knocked down to failure to obey a traffic device, fine. An assault charge for defending myself, no, absolutely not. I fully understand the implications and possible costs. I will not profess to have committed a crime that I did not commit.
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Old February 25, 2010, 08:39 PM   #3
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Yes, prosecutors will often plea a case down to a few days in jail that would otherwise carry several years if convicted. Why? Nobody knows for sure.
I imagine they have ratings to maintain.
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Old February 25, 2010, 08:50 PM   #4
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Well that's between you, your attorney and God. You allways have to consider playing the odds. Usualy a judge will very discretely tell-tale his take on the case. You also have to take in consideration your jury composition, and perform the same exercise the OP performs. This is an oversimplification but you get the point. A plea to a missdemeanor for time served or community service and a fine, even several days in jail, are mighty tempting in exchange for the potential of being locked for several years.
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Old February 25, 2010, 09:02 PM   #5
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Tactics like that.

Kinda reminds me of something I have heard about before. The inquisition, if you admit to being a witch we won't torture you anymore and you can go home.:barf:
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Old February 25, 2010, 09:04 PM   #6
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Unless it makes you ineligible to afterwards own a firearm, carry concealed, etc.
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Old February 25, 2010, 09:09 PM   #7
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Unless it makes you ineligible to afterwards own a firearm, carry concealed, etc.
That and many different factors that are valued differently by different people in light of the totality of the particular circumstances. You know, sometimes people fack up in those high tension split decision situations.
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Old February 25, 2010, 09:31 PM   #8
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I've always been under the impression that self defense cases were odd in that you pretty much had to admit to committing the action.

For example if you shoot and kill an attacker, to argue self defense, you have to admit that you did shoot the attacker.

Your argument isn't that you didn't kill them it's that their actions forced you to shoot them to protect yourself.

If "god forbid" I find myself under indictment for a self defense gun charge, I'll weigh my options carefully.

If I can get a deal that doesn't affect my rights to firearms then I might be tempted to plead out. Other than that, I believe I'd try my luck with a jury.
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Old February 25, 2010, 09:33 PM   #9
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Often that kind of plea deal is done because it lets them focus on harder pickings. Then they can move on and talk about how they saved the community from horrible people.

Admitting to a crime you did not commit is foolish. At that point, you open yourself up to civil trial and judgment as well, and your guilt is a matter of public record; only the amount is in question. You might save yourself a lot of money in legal fees (felony defense isn't cheap), but you'll pay it on the back end to the thug and his family.

Location should have a lot to do with it. What a prosecutor might pull in San Francisco, New York, or other firearm unfriendly places is one thing. What they'd be able to pull off in places like my hometown (a conservative suburb in a very moderate to right leaning state with a castle doctrine law) is something else entirely.
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Old February 25, 2010, 09:50 PM   #10
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Admitting to a crime you did not commit is foolish. At that point, you open yourself up to civil trial and judgment as wel
It does not work that way. To sum this up, you can be aquited and be responsible in a civil law case. Ask O.J.
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Old February 25, 2010, 09:58 PM   #11
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I think what he meant was that pleading guilty makes you an automatic easy target for a civil suit. If instead you stick to your guns and are acquitted in the criminal trial, you may be automatically shielded from a civil suit depending on your state's laws.

Of course, if you go to trial rather than pleading guilty and are convicted anyway, you're in the same boat as if you had pled guilty as far as the potential for a civil suit goes, plus you have the criminal conviction and stiffer sentence to deal with.
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Old February 25, 2010, 10:03 PM   #12
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It does not work that way. To sum this up, you can be aquited and be responsible in a civil law case. Ask O.J.
But it does work that way, sometimes...
Some states give you civil immunity if it is found to be a justified self defense shooting...
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Old February 25, 2010, 10:04 PM   #13
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It does not work that way. To sum this up, you can be aquited and be responsible in a civil law case.
I was not saying anything about an acquittal. I said that if you plead guilty to a crime, it is a matter of public record. In that case, none of an ensuing civil suit will involve matters of guilt/innocence. That's been decided. At that point it will only be about how much money it will take to make the harmed party feel better.

Quote:
Of course, if you go to trial rather than pleading guilty and are convicted anyway, you're in the same boat as if you had pled guilty as far as the potential for a civil suit goes, plus you have the criminal conviction and stiffer sentence to deal with.
Yup. But if you go down for a felony conviction, your life as you've known it is pretty well toast anyway. Chances are good any real assets have been spent for legal defense. You're not going to be able to pay your mortgage while doing a 5-10 year bid. You'd be coming out of prison pretty well bankrupt anyway. Yes, things would potentially be a bit worse, but someone in prison for several years is pretty well judgment proof.
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Old February 25, 2010, 10:05 PM   #14
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When charged with a crime you have to weigh your options very carefully.

I think I would strongly consider pleading to a misdemeanor to avoid a felony conviction.

Now if it's between one felony conviction or another lesser felony conviction I may roll the dice.
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Old February 25, 2010, 10:30 PM   #15
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ensuing civil suit will not involve matters of guilt/innocence

Folks! It all depends on the particular facts involved. You plea to a misdemeanor assault charge. Regarding the civil litigation your guilt is a matter of public record regarding the misdemeanor only. You just killed a guy or severely injured him and you are worried as to whatever facts are deemed admited in a misdemeanor charge.? Fine.
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Old February 26, 2010, 07:49 AM   #16
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In some regions, the jury selected will see you, the defendant, as a person who must be guilty to be in court... In this situation, you will have to have an iron clad case as you will be forced to prove innocence which is not what our court system wasn't designed to do.

I have taken pleas in the past to mitigate my losses and move on with my rights.
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Old February 26, 2010, 10:18 AM   #17
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I was the mod who requested it as I thought it was an interesting facet for our discussions.

Thanks to the OP.

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Old February 26, 2010, 10:43 AM   #18
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In that case, plead 'nolo contendre' or stand mute. Most cases are settled with a plea, and like it or not, that's the condition of our system.
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Old February 26, 2010, 10:58 AM   #19
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If you don't stand for something, you'll fall for anything...

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So here’s the question…. Do you accept the plea to a misdemeanor which is accompanied by say 10 days in jail or do you maintain your innocence and fight the felony charge?
Never plea, to do so encourages bad prosecutors to continue doing wrong. Fight it to the end. Principles are worth fighting for.
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Old February 26, 2010, 11:12 AM   #20
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Originally Posted by A/C Guy
Fight it to the end. Principles are worth fighting for.
Sounds like a plan, and you're a great guy for making us the offer.

I think the promise that A/C Guy has made to pay all of our legal bills, our mortgages, our loss of wages, our car payments and possible divorce fees is the action of a real stand-up fella and a good TFL member.
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Old February 27, 2010, 06:50 AM   #21
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With a conviction, even a misdemeanor I could lose my security clearance and be unemployed therefore I don't have much choice. So it is to the bitter end if I believe I am in the right. Luckily for me I can afford a decent lawyer if I need one. I just prefer not to need one.

This is not so much a matter of principal as it is of survival.

I would like to think my wife would not leave me if I were wrongly imprisoned. But I would rather not test that theory. But I am certain that if she believed I were right and I folded under than she probably would leave me for being less of man than she believed possible.

So again I have no choice but to do the right thing.
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Old February 27, 2010, 08:27 AM   #22
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Remember, it is your goal to survive physically, mentally, and legally.
That is the hard part, surviving legally and physically. Lawyers aren't not there to prove who is and isn't innocent. They are here to win a case, to look good pubically, to make money. With that being the case, how do you survive legally when you NEED to survive physically? If you are backed in a corner with 5 thugs in front of you, do you hope all they want is your money or do you prepare for the possibility that you will need to fight for your life? Personally, I would not plead guilty to a crime I did not commit, but I wouldn't want my family to suffer in my absence. This is one of those instances where it makes you question the support of the government. All I know is if I had to defend myself when had no other option, not even the fear of law would stop me.
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Old February 27, 2010, 08:44 AM   #23
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Aparently that question is answered depending on wether a person is an idealist or practical (willing to compromise). Whatever your stand is, never be a fundamentalist when dealing with this issue. Asuming one position on principle can lead to disastrous concecuences brought forth by blind stupidity.
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Old February 27, 2010, 08:50 AM   #24
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I would fight it. Self defense is self defense. I would hope for a common-sense jury and/or judge.

That's what is fundamentally wrong with this country and our court systems. Self defense is getting harder and harder to do. These cases need to be thrown out of court by judges that won't take this crap anymore. A new precedent needs to be set.
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