C. Scott Brumley
All of us who work in the criminal justice system are busy. Time is short and the press of business is great. And so it is that ideas to make the process more efficient and less burdensome should be considered carefully. Like many of you, I have given this notion some thought, although I can’t claim that the thought was particularly deep or useful. Nonetheless, the general idea of efficiency is a sound one, and in that vein, I recently recalled a tool I encountered early in my prosecutorial career.
When I started in the government lawyer business years ago, several of my colleagues had posted on their doors a checklist for prefatory issues from defense counsel. I have no idea who the original author was, but I do know that he or she was a comedic genius. The form addressed an array of matters used to “prime the pump” for case disposition negotiations. Lest there be any misunderstanding or unintended hard feelings, the form was decidedly tongue-in-cheek.
In the years since, I have not seen an update of the form, so I thought I would undertake a revision to bring it into modern practice. Likewise, among the factors I considered was the concept that if you don’t occasionally laugh in this business, it will eat you. As a result, I offer the following form to assist in the frequent and, with any luck, jovial interplay between prosecution and defense.
Preliminary Plea Negotiations Worksheet
My name is: __________________________ My client’s name is:___________________________
My client may be identified by:
• his/her date of birth:_______________.
• his/her Social Security number: _________________.
• prominent tattoos.
My client is charged with:________________________________________________________.
(You may attach additional sheets as necessary.)
To facilitate orderly, expeditious negotiations for disposition of my client’s case(s), please be advised of the following:
I have _____ years of criminal experience, and this case:
• is one of the weakest I’ve seen.
• is deeply troubling because it seems to represent overreaching.
• is deeply troubling because you’ve gone to great lengths to portray my client as “guilty.”
• is one that should be easy to work out by way of your capitulation.
(Note: In completing the blank for years of experience, a minimum of 20 is recommended for effect. However, anything over 75 may tarnish your believability.)
You may be appropriately intimidated by some of my past successes, which may be found:
• in the caselaw reporters covering Texas.
• on any electronic legal research database.
• in a list of cases I will gladly provide to you upon your remittance of $150, plus shipping and handling.
• on my website, ____________________ (if you see any unflattering remarks about you on the site, they undoubtedly are the work of nefarious hackers).
I’m glad to be talking to you:
• because what some call “weak trial statistics” I call a sense of compassionate justice.
• because … did I mention that you look strikingly stylish today?
• instead of some of the other Nazis around here.
• because that “pen time” thing we talked about on the phone was a joke, right?
• because I thought I had been trespassed from the office.
You have big problems because:
• my client is sympathetic, and your victim and witnesses are not.
• your victim has signed an affidavit of non-prosecution (please disregard that my office prepared the form).
• you can’t prove one or more of your essential elements.
• I’m counting on you overlooking one or more of your essential elements.
• I’m smooth like chocolate pudding.
• I’m smooth like tapioca pudding.
The war stories I’m going to tell to soften you up will take:
• 15 minutes. • less than an hour.
• more than an hour. • the time required for your retirement to vest.
I need a continuance because:
• I have had an inadequate opportunity to prepare for trial.
• I have a conflicting setting.
• I have a conflicting tee time.
• I have been unable to locate an essential defense witness.
• I have been unable to locate an essential witness named “Mr. Green.”
My client has:
• no criminal history.
• a few priors, which were the result of a series of amusing misunderstandings.
• several priors, which are irrelevant.
• a criminal history that reads like the Code of Federal Regulations.
As to any prior convictions/deferred adjudication orders, my client:
• will stipulate to any and all such orders after an opportunity to review them.
• has no fingerprints as the result of an unfortunate “chemical experiment” gone awry and cannot be tied to any “pen packet” you may offer.
• invokes the “liar, liar, pants on fire” doctrine.
My client is an ideal candidate for:
• pretrial diversion.
• deferred adjudication.
• a substantially reduced term of incarceration.
• a plea to a less onerous offense.
• an outright dismissal and letter of apology from the chief of police/sheriff/your office.
… because (please check all that apply):
• he/she has a good mama.
• he/she has other good family members, who may be contacted (please check one):
• at their residences.
• at the county jail.
• by way of my version of what they will say.
• he/she has a mental impairment.
• you have a mental impairment.
• he/she didn’t do it, and the State’s witnesses who say otherwise are scallywags (even though this isn’t a maritime case).
• he/she will be perfectly law-abiding if allowed to retain his/her Mercedes (needed to travel to and from work), automatic handgun (needed for self-protection) and all of the cash seized from him/her (legitimately earned through construction work or casino winnings).
• every other county in Texas does it this way.
• as a taxpayer of the county, I pay your salary.
You should consider leniency for my client, because he/she can provide (please check all that apply):
• solid evidence against the more responsible parties to the offense.
• solid evidence against anyone you want.
• credible witnesses who will vouch for his/her generally good character.
• photographic evidence of his/her blamelessness (note: the county will be billed for any necessary Photoshop work).
You’re dead in the water because of our defensive issues, which include (please check all that apply):
• no probable cause.
• that you can’t prove the case beyond a reasonable doubt.
• that you can’t prove the case beyond a metaphysical doubt.
• that the stop/search was bad.
• that the stop/search was unpleasant, hence it was unduly prejudicial.
• that my client expressly invoked his/her Miranda rights.
• that my client telepathically, but emphatically, invoked his/her Miranda rights.
• actual innocence.
• claimed innocence.
• mistake of law.
• mistake of judgment.
• a Brady claim.
• a Brady Bunch claim (see discussion of good family above).
• that the State’s witnesses have all the credibility of a Wall Street CEO.
• that the State’s witnesses are all Wall Street CEOs.
• an airtight alibi.
• a somewhat believable alibi.
• jury nullification.
If I were you, I wouldn’t want to take this case to trial because (please check all that apply):
• I’ve tried hundreds of these cases.
• I’ve tried hundreds of these cases and actually won one.
• I’m going to get a favorable instruction (justified).
• I’m going to get an instructed verdict (justified).
• I’m going to get a favorable instruction (because the judge doesn’t like you).
• I’m going to get an instructed verdict (because the judge really doesn’t like you).
• I’m going to jump up and object to every question you ask like an espresso-fueled Chihuahua.
• I look better in a suit than you do.
Your forensic evidence is flawed because (please check all that apply):
• the tests did not follow scientifically accepted and proven methodologies.
• my experts can beat up your experts.
• it is based on junk science.
• it is based on punk science.
• you failed to provide me with exculpatory evidence for testing.
• you failed to misplace/destroy the inculpatory evidence for testing.
• I will dazzle the jury with my ability to correctly pronounce words like “nuclear,” “chromatograph,” “extrapolation” and “inadequate analytical rigor” (regardless of their applicability).
(If you have issued any press release or participated in any news conferences concerning this case, please complete the following two questions.)
In my press release/news conference, I referred to you as (please check all that apply):
• a fascist. • a redneck.
• a jack-booted thug. • an idiot/moron.
• unethical/unprincipled. • incompetent.
• I’m sorry.
• I regret the tone, but I believe the substance of the allegation to be correct.
• I have evidence to back it up.
• my version hit the airwaves first, so deal with it.
Based on the foregoing, I would like to discuss with you:
• a reasonable negotiated plea offer (with “reasonable” meaning no prison/jail time and an “affordable” fine).
• an immunity agreement or favorable sentencing recommendation in exchange for my client’s testimony against other responsible parties.
• stipulations to simplify the issues for trial.
• your unconditional surrender.
Thank you for your efforts to streamline the criminal justice process. You will be contacted by the prosecutor handling your case as soon as possible.