By Zack Wavrusa
Assistant County & District Attorney in Rusk County
Most courts have not conducted jury trials for months. Many don’t plan to resume the practice until a COVID-19 vaccine has been widely distributed. This new status quo, unforeseeable at this time last year, has produced a case backlog of immeasurable proportions.
Plea bargaining has always been an important part of our jobs as prosecutors. About 98 percent of criminal cases end in plea bargains because it’s simply impossible to try every single criminal case to a jury. There are not enough prosecutors, defense attorneys, judges, or juries in the state to pull that off.
With the mounting COVID-related backlog, plea bargaining is more important than ever because we, as prosecutors, should continue working to settle what cases we can. It will be even more important once trials resume and we are tasked with balancing the continued need to plead cases with a frenetic trial schedule.
There is an art to plea bargaining with the defense. It is unlikely that any two prosecutors approach the process exactly the same, but, like everything we do, planning and experience go a long way toward making the process more effective and efficient. There are important considerations that should go into every plea recommendation as we work to alleviate the COVID case backlog.
Victim-informed plea bargaining
Crime victims should be the primary consideration in any criminal prosecution. I could just leave it at that, but I won’t.
If you spend your day immersed in eight to 10 different assault family violence cases, some with victims in a hurry to have the case dropped, it can be easy to forget how hurt and terrified a person can be after being brutalized by a spouse or significant other. Prepare an endless string of burglaries and a prosecutor might find himself numb to the concept that a homeowner can be so shaken by a burglary as to no longer feel safe in her own home. Simply put, we deal with crime so routinely that we can lose sight of the considerable harm those crimes inflict on the individual victims.
Please never forget how much these instances impact our victims. To you, the case might feel like “just another family violence case” in an endless series of family violence cases. But to a victim, this criminal case is likely the biggest thing going on in her life and might be the worst thing to have ever happened to her. She will likely be experiencing a lot of raw emotion and may want to see a punishment far worse than anything available under the law or anything likely to come from a jury. For that reason, it is absolutely critical that a victim is a part of the plea-bargaining process from the very beginning.
I always use my initial meeting with victims to accomplish two things: Feel out where they are coming from on an emotional level, and give them some idea about the most likely outcomes for the case.
When it comes to developing realistic expectations about an outcome, I recommend being prepared to discuss the initial plea offer with victims at the very first meeting. By doing this, we can set a realistic expectation in the victims’ minds about what resolution might look like if it occurs by plea bargain. Explain the range of punishment and the variables of the case that cause you to believe that the initial offer is appropriate. If you already know that you are likely to accept a lower counter-offer from the defense down the road, let victims know that as well.
Use this initial meeting to provide victims with as much information about the entire criminal process as you can. The more informed they are about the plea-bargaining process, the more likely they will accept the result. If you prosecute for any length of time, there will inevitably be cases where victims feel like they were “sold out” or that you were “afraid to try a tough case,” but if you maximize your initial meeting with the victim, you will minimize how many angry victims you have.
Victim-informed plea bargaining doesn’t end with the initial meeting, though. Plea offers can and often do change. When changes to the plea offer are made, work with your victim assistance coordinator to notify the victim. You will lose credibility with a victim if the 10-year offer you discussed at the initial meeting turns an agreement for five without any notice or explanation.
Remember also that the Victim’s Bill of Rights specifically grants victims the right to have their victim impact statement considered by the prosecutor and judge before a plea bargain agreement is accepted. Depending on the severity of the crime and the strength of the evidence, I may completely defer to the victim on whether to move forward with a plea bargain. However, it is more common, at least in my experience, for the prosecutor to retain the ultimate authority on whether to accept a plea. In those instances, it is important to repeatedly remind the victim that a victim impact statement can be considered by the judge as well, and by the use of that statement, he or she can explain to the judge why the plea bargain should be denied.
Office policies and values
Every prosecutor’s office is headed by an elected official. That official was elected because of the principles he or she displayed and the promises made to voters. An elected might have run on a platform of policies that emphasized pretrial diversion and rehabilitative community supervision programs over confinement in a penal institution. In another county, the elected prosecutor might have committed to aggressively prosecute certain types of crimes and seek longer prison sentences for individuals convicted of them. Whatever your elected prosecutor’s policies are, know them and follow them.
The best example I can give is from my own experience. My elected prosecutor recognized that home burglaries were far too prevalent in our very rural county. “What are you going to do about all these burglaries?” was a persistent question he heard while first running for office. For that reason, our office has a policy of not recommending probation for burglary of a habitation offenders. When I engage in plea negotiations with the defense attorneys on burglary cases, I always articulate this policy to them. It’s not something most of them like to hear, especially those who aren’t already familiar with it, but putting it out there early in the conversation will (I hope) save me from having to respond to a bunch of counteroffers for community supervision.
Considerations for the initial offer
As prosecutors, we have an obligation to see justice done. Achieving justice via a plea bargain requires consideration of more than just the range of punishment prescribed by statute. The severity of the crime and the defendant’s criminal history are also obviously considerations. Less obvious but equally important considerations are the interest of the victim, interests of law enforcement, any recent, similar case dispositions, as well as the interests of the community at large (as with our office’s policy against offering probation for burglary).
Punishment prescribed by statute. I’m not going to waste any ink spelling out the specific punishment ranges for different grades of offenses. If you are unsure about these, check out Chapter 12 of the Penal Code or, better yet, TDCAA’s Quick Penal Code Reference sheet (available at tdcaa.com/books). I do want to briefly talk about enhancements for habitual offenders and how that changes the punishment range available to the jury.
Even if you don’t have a lot of felony experience, you might know that the base punishment range for most felonies can be increased if a defendant has previously been found guilty of a felony and sentenced to confinement in prison. The rules governing enhancements for habitual offenders are found in Chapter 12 of the Penal Code. There is also a really great chart that explains the various ways of enhancing the punishment range in TDCAA’s Penal Laws of Texas book.
Familiarize yourself with the general structure of the enhancements for habitual offenders and your office’s policy on the matter. Keep both in mind when engaging in plea negotiations. If enhancement is a legal possibility and your office policy doesn’t prohibit it, I recommend telling defense counsel about your intentions to file an enhancement notice at the outset of negotiations. Knowing this ahead of time can help defense attorneys explain to their clients why a plea offer is a fair one and also reduce the possibility that defense counsel will view such an action as vindictive.
Severity of the crime. Absent aggravating factors, first-time driving while intoxicated (DWI) cases are usually Class B misdemeanors punishable by up to six months in the county jail. All Class B DWIs are not equal, however. There is a huge difference between a person who was pulled over for going 78 in a 70-mph zone while sporting a .09 BAC and a person who got blackout-drunk and drove her vehicle into a ditch. Unless there is an office policy to the contrary, do not treat these cases the same. There is no formula out there that will show you where on the “severity scale” a particular set of facts falls, so use your judgment. Talk it out with colleagues. Incorporate your thoughts into the plea offer.
A defendant’s criminal history. Anybody can read over and count up convictions, but proper consideration of the defendant’s criminal history requires more than this. As you go through the history, look at the types of offenses for which the defendant was convicted, when he was convicted, and what the disposition of the case was. Ask yourself questions like:
• Does someone who has been revoked from community supervision and sentenced to prison time twice before deserve a third bite at the community supervision apple?
• Does it make a difference, for plea negotiation purposes, in a DWI–2nd, that the defendant’s jurisdictional prior occurred in 1986? What about in 2016?
• Does a defendant with multiple prior convictions, all prison sentences, deserve a chance at community supervision and drug rehab if he has never received it before?
Different prosecutors will answer these questions differently. Your answers to these questions will be derived from your own life experiences and moral philosophies and from any particular policy your office has on the issue. Never forget your office’s policy.
Also consider a defendant’s arrest history, even when those arrests don’t result in convictions. A lengthy history of arrests without conviction might not make a person ineligible for community supervision, but it may mean he is a poor candidate for it. This is especially true for domestic violence and sexual assault offenses. If you see repeated arrests but no convictions on a person’s criminal history, I recommend obtaining copies of the associated offense reports before making a decision on what an appropriate plea offer looks like. You might find a series of reports containing insufficient evidence to merit a conviction, but you might also find a pattern of escalating violence that ended without a conviction because the victim filed a non-prosecution affidavit. These are two very different situations, and any plea offer should reflect that.
Interests of the victim and law enforcement. As I have said before, the interests of the victim should play an important role in the plea-bargaining process. How big a role is dependent upon the severity of the crime, strength of the case, and office policy. We cannot always achieve the outcome that the victim wants, but if what the victim wants is both just and attainable, we ought to do our best to make it happen.
We also cannot forget our partner law enforcement agencies. Some offices require the approval of the arresting officer or investigator before settling a case. If that’s your office, the interests of law enforcement are especially vital to you. If that is not your office, law enforcement’s interest is still an important consideration. Our law enforcement partners have a unique perspective on the criminal problems facing the communities they serve. If a certain type of crime has become a big problem or a particular part of town or the county is experiencing a surge in crime, factor that information into plea negotiations.
For example, two state jail facilities in our county saw a boom in bribery cases. The Office of the Inspector General was seeing a lot of prison staff members take money in exchange for smuggling contraband to the offenders. As these contraband items (drugs and cellphones mostly) circulated through the prison population, they began to cause altercations between offenders, creating a dangerous situation for prison staff and inmates alike. When this crime and its consequences were brought to our attention by the investigator, we decided to no longer recommend community supervision on that type of case in the hope that such a policy would have a deterrent effect on the prison staff.
The interests of law enforcement are not always going to be geared toward more severe punishments. It is not at all unusual for a law enforcement officer to request prosecutors be lenient in a particular case because the defendant was very cooperative at the time of the arrest, showed genuine remorse, or was a model inmate in the county jail. Narcotics investigators may also request leniency for particular defendants in exchange for that person’s cooperation.
Similar recent dispositions. While we cannot try every case submitted to our offices, every case we do try should factor into our plea negotiations. Are you consistently offering county jail time on DWIs while juries in your county are often returning verdicts recommending community supervision? Are you offering community supervision for offenses that juries are routinely sentencing to prison? If so, incorporate that data into the negotiation process and revise as necessary. Don’t be afraid to take note of the messages sent to you by way of a jury verdict and make more lenient or severe plea recommendations as needed.
Criminal defense as a business
When I was first licensed, I took a “cut to the chase” approach to plea negotiations. I reviewed the case, figured out what offer I thought was appropriate, and made that offer to defense counsel. Because I communicated my best offer from the very beginning, I was forced to decline repeated counteroffers from defense counsel, which resulted in cases dragging on for months only to settle on the eve of trial. People also grumbled that I was hard to work with because most every counteroffer was rejected.
What I failed to realize then is that, while defense attorneys work hard to get the best possible outcome for their clients, they are also running a business. Part of running a business is producing demonstrable results for the clientele. Criminal defense practices are not immune to this reality. Every defense attorney wants to go back to a client and say something akin to, “The prosecutor was at X, but I negotiated him down to Y.”
Don’t forget the business aspect of the defense attorney’s practice. When making an initial plea offer, consider building in some wiggle room. Start with an offer of X that you think could be an acceptable resolution, but with the understanding that you would still be satisfied with a result of Y. If you take this approach, you will leave yourself room to negotiate with the defense attorney and, consequently, move cases more efficiently and amenably.
The first offer and counteroffer
I strongly believe in making initial plea offers during case intake and communicating that offer to the defense attorney as soon as I have been notified that the attorney was hired or appointed. I do this because of “anchoring.” Anchoring is a subconscious bias where people rely on an initial piece of information to determine future negotiations or offers. It means that if the State makes the first offer, the defense attorney will use that offer to inform all future counter offers. Therefore, if you set the anchor for negotiations, you can ensure that future negotiations are on a playing field of your choice.
The Board of Barristers at Texas Tech had advocacy competitions based on negotiations. One of the tactics that was stressed to participants was not to double-bid, as doing so undermined your leverage in the negotiation. Double-bidding is when you make an offer and then amend it before getting a counteroffer from the defense. Doing so incentivizes defense counsel to keep coming back over and over until you get to your bottom line, causing negotiations to needlessly drag on. I don’t think this rule applies perfectly to criminal negotiations because our objective as prosecutors is not to get as much as we can out of opposing counsel but rather to see that justice is done. However, counteroffers are still a useful tool because defense counsel, as they should, are trying to get as much as they can out of us.
If a defense attorney tries to get you to lower a plea offer, I strongly encourage you to ask for a signed counteroffer, by which I mean an offer they have discussed in concrete terms with the client and one the client is willing to proceed with immediately. A signed counteroffer will benefit the prosecution in a number of ways. First, it requires the defense attorney to have a realistic conversation with the defendant about what he or she is willing to accept. Next, it will show opposing counsel that you are willing to listen and are someone they can work with. Finally, if the counteroffer is just, considering the facts of the case, it gives you a chance to settle the case quickly and move on to the next one.
Sometimes, you will get a counteroffer from a defense attorney accompanied by an argument for accepting it (e.g., the defendant is going to college, participating in drug rehab, caring for an invalid grandma, etc.). In such an instance, don’t be afraid to ask for documentation to support the claim. Explain that you aren’t doing it because you distrust anything the defense attorney said; rather, it is important for you and your office to “paper” the file with documentation to support a decision to accept a counteroffer. Papering the file is especially essential when accepting the counteroffer means going outside the punishment range you had previously discussed with supervisors, law enforcement, or the victim. Don’t worry about defense attorneys balking at such a request. They have an obligation to achieve the best possible outcome for their clients and will often be happy to get you what they can. If they do balk, explain that acceptance of their counteroffer can’t happen until you have appropriate documentation for the file.
Remembering all the tools in the tool chest
Successfully negotiating a plea in a criminal case isn’t always haggling over years in prison or years on community supervision. There are a lot of other tools and resources available to attorneys that can be real difference-makers in striking a deal. If the result is just and not a violation of office policy, consider these options:
• pleading to a lesser-included offense. This is often a just option if office policy does not prohibit it.
• special terms and conditions of community supervision. There will come a time, if it hasn’t already, where you will be on the fence about whether to offer community supervision or incarceration in a given case. When that happens, consider terms and conditions that the court could order: outpatient drug rehabilitation, ignition interlock devices, SCRAM bracelets, batterer’s intervention programs, and the like can all be difference-makers when you’re unsure if a defendant is suited to community supervision.
• pretrial diversions and specialty courts. I don’t think any one county in Texas handles pretrial diversion programs and specialty courts the same way. Take the time to learn which, if any, of these resources are available locally, and familiarize yourself with the specific requirements to participate in each program. Utilize them when the situation calls for it.
When the COVID-19 crisis draws to an end and the court system gets back to normal, prosecutors and defense attorneys will have a monumental task before them. Reducing our backlog and getting back to business as usual will require peak performance from everyone, especially when it comes to plea bargaining. The best plea negotiation outcomes occur when the parties prepare in advance. My hope is that the considerations in this article help in your efforts to reduce the backlog of cases in a just and efficient manner.
 Tex. Code. Crim. Proc. Art. 56A.051(a)(12)(A) (re-codified from former Art. 56.02(a)(12)(A) as of January 1, 2021). For a free PDF copy of the non-substantive re-organization of former Chapter 56 and other non-substantive changes that took effect on Jan. 1, 2021, look for links along the right rail of TDCAA’s publications webpage, https://www.tdcaa.com/books/.
 County Attorney, District Attorney, Criminal District Attorney or County and District Attorney. Always a good idea to know which of these four you work for.
 Mike Jimerson, County and District Attorney in Rusk County. He took a flier on me right out of law school. I wasn’t exactly who he wanted for his misdemeanor vacancy (he plainly stated this when he offered me the spot), but he took a chance on me nonetheless. I wouldn’t be the prosecutor I am today without his completely brutal critiques and genuine desire to see me succeed.
 Tex. Code Crim. Proc. Art. 2.01.
 Tex. Penal Code §§12.42 and 12.425.
 Buy it here: https://www.tdcaa.com/product/criminal-laws-of-texas-preorder-2019-21.