Giving Up Too Much?

This is not so much a law topic as strategy session. With the advent of Gall and Kimbrough, this is the question: when should we use written plea agreements? Given all the concessions that the prosecution demands on guideline sentences and appeal waivers, the benefit to our clients is often negligible. Certainly, if there is charge bargaining to be had, such as phone counts or an ITAR, or if an 851 is not filed, a written plea agreement may be well worth it.

But, given the state of the law, it seems that we should give much more consideration to pleading blind (without a written formal agreement).

For one, the prosecution will often still dismiss other counts in return for the plea, without any formal agreement. And even if they don't, it often doesn't make much difference if they are insisting on the "most serious provable offense charged."

Second, a blind plea leaves us open to argue any non-guideline sentence, as well as guideline issues, and without waiving appeal. In other words, to act as true advocates at sentencing rather than just cogs in the guideline wheel.

Third, there is nothing to preclude negotiation post-plea, post-PSR disclosure. For example, the defendant pleads blind to the sole count. After the PSR is disclosed, negotiate a limited appeal waiver in return for particular government recommendations at sentencing. Often, post-PSR, we are in a much better position to determine what to give up and what to preserve.

Fourth, the government's appeal waiver is ever-expanding, without justification. The latest is a waiver of any supervised release sentence, if there is ever a SRV. It is hard to imagine that will ever be valid or enforceable, but it is still part of the waiver. By the way, those waivers are negotiable, despite the party line.

Fifth, we usually know our judges, whether they tend toward low end anyway, or don't hesitate to bust a written agreement. If that's the case, why the concessions?

We need a new approach: look first and look closely at a blind plea, and then ask whether there are justifiable reasons to go with a pre-plea written agreement. In the end, I think we'll find that pre-plea written agreements should be the exception rather than the rule.

We welcome any comments or debate on this subject.
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