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The Nuts and Bolts of Pleading Guilty to a Federal Criminal Offense

Kish Law LLC

To the person who stumbled across this: I am a semi-regular blogger whose office is in Atlanta, and I discuss federal criminal cases, and the profession of being a lawyer who represents people and/or companies who are charged with crimes.  Yesterday I was meeting with a client who will be pleading guilty in the near future.  Here are some common aspects of that process.  This all happens AFTER me and my client have gone at length through our options (trial versus plea) and after we have done all of our negotiating with the prosecutor.

First, there is the plea agreement.  It is absolutely necessary that the attorney and client review this, together, and in detail.  Even the most sophisticated clients are often surprised about the verbiage that prosecutors insist on being placed into a plea agreement document.  And, even the most experienced lawyer sometimes fails to remember all of the boilerplate that is in a “standard” plea agreement, so it is always worthwhile to go over the document with the client line by line.

Second, the attorney needs to fully explain to the client how the guilty plea process takes place.  At the guilty plea, the client, attorney and prosecutor all appear in front of a Judge.  One of the first things in some Districts is that the prosecutor has to “verify” the signatures: “Mr. Defendant, is that your signature on the plea agreement”, or something like that.  Next, the Judge engages in what we call the “plea colloquy”.  This is a standard set of statements, and questions, through which the Judge assures that the guilty plea is what the Supreme Court calls a “knowing, voluntary and intelligent” waiver of the client’s rights to have a trial.

Third, during the colloquy, the Judge also must be satisfied that there is a “factual basis” for the plea.  In other words, the court has to be assured that the Defendant is truly guilty.  Normally, the Judge asks the prosecutor what he or she could prove if the case went to a trial.  However, some Judges ask the Defendant what he or she did that makes them guilty of this particular crime.  This is more tricky, for this is usually the first time that the Judge will hear from the Defendant directly, and first impressions are important.  Also, some Defendants are reluctant to plead guilty, and it is usually a poor idea to let the Judge know that.  The attorney usually needs to work with the client to assure that the Defendant fully admits to the crime, while not demonstrating such reluctance that the Judge will reject the plea altogether.

In a federal criminal case, the Judge will also explain the sentencing process and a brief overview of the complex Sentencing Guidelines.  More importantly, the Judge will remind all the participants that the final decision on a sentence is for the Court, and if it is higher, or lower, than the lawyers or the Defendant anticipated, that generally is not grounds for either side to back out of the guilty plea.

The Judge will usually schedule another day for the sentencing hearing, or will tell everybody that the date will be set based on when the Presentence Report is finalized.  Sometimes, the process of preparing the Report begins that same day.

The final aspect of pleading guilty is whether the Defendant will be in, or out of, jail up until the sentencing hearing.  People who already are incarcerated rarely are released.  Some people who come to court on bail are taken into custody if they plead guilty to some very serious crimes, or if they have violated a condition of their release.  The attorney should try his or her best before the hearing to make sure that clients who come to court on bail are allowed to remain free up to and possibly through the sentencing hearing.

This is just a brief overview of the guilty plea process.  Each case is different, but clients need to fully discuss his process with their attorney.

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