To Plea or Not to Plea?

As a takeoff from my presentation today at Texas Criminal Defense Lawyers Association’s Defending Juveniles, I wanted to share an outline of how to approach advising your juvenile client to plea or not to plea.

What is a Plea?

In this context, a “plea” is similar to a plea-bargain in a criminal case. A “plea” is to enter a plea or “true” (or no contest) or “not true.” A plea of “not true” results in proceeding forward toward a trial by court or jury. A plea of “true” is an admission and judicial confession to the delinquent conduct in question as alleged in the petition. A plea of “true” can be made with an agreed recommendation from the prosecutor or without.

A plea of “true” made to the court is an adjudication hearing. Because adjudication hearings cannot be waived, it is the plea of “true” coupled with the juvenile’s confession (or agreement to stipulated facts) that gives the juvenile court an evidentiary basis upon which to find the juvenile has engaged in delinquent conduct and thus becomes an expedited adjudication hearing.

To Plea or Not To Plea, Who Decides?

Ultimately, it is always the client’s decision whether or not to enter a plea of true. Texas Disciplinary Rules of Professional Conduct Rule 1.02 states a lawyer shall abide by a client’s decisions in a criminal case (and by extension juvenile cases), after consulting with the lawyer, as to a plea to be entered, whether to waive a jury trial, and whether the client will testify.

Though the plea to be entered and the waiver of a jury trial are each left to the client, the rule requires that client’s decision to come after consultation with the lawyer. Failure to provide adequate information for the client to make a decision about whether to have a jury trial or whether to accept a plea offer can result in an attorney being sanctioned by the State Bar. It is imperative that you not only convey offers (if any) and discuss whether to proceed to trial but also consult with the client the consequences of each decision. The client must understand the trial process and its pros and cons along with the evidence that is likely to be admitted.

Should I Advise My Client to Plead True?

First, you must know your case, your client, your prosecutor, your judge, and your options. Sometimes the question to plead true is more easily made.

Know Your Case

Sounds simple, but attorneys must investigate their client’s case before advising the client on how to proceed. At a minimum, this requires (1) reviewing the petition for alleged facts and potential defects, (2) discussing the allegation with your client, and (3) reviewing the prosecutor’s file, including evidence and other items provided through discovery. Often, knowing your case goes beyond these basics and will include an independent investigation into the facts and circumstances of the alleged offense. Where appropriate, seek an appointed investigator to assist in your investigation, subpoena records, and interview witnesses.

While reviewing the prosecutor’s file (offense report and other discovery) is a good place to start, it is rarely the end of your inquiry into the case. Once you have reviewed the offense report, statements and all other materials in the prosecution file, you should discuss the items and reports with your client. Are there other witnesses you should send an investigator to interview? Do you need to subpoena dispatch records, MDT’s, blood records, CPS records, medical records, audio and video recordings, social media records, etc? Do you need an expert to evaluate some forensic conclusion?

Essentially, you should prepare your case for trial. Review the elements of the alleged offense and determine whether or not the prosecutor can prove each and every element. Know which witnesses can be used to prove each element. Know whether or not those witnesses are impeachable. Know whether or not evidence will be available for trial.

Know Your Client

Not only must you discuss the offense allegations and evidence with your client, but you must also know your client and his history: court history as well as school and mental histories. Has your client been involved in the juvenile court system before? Has your client been a discipline problem at school? Did your client behave in detention while this case has been pending? Does your client skip school regularly? What kind of grades does your client make in school? Does your client see a therapist or psychiatrist? Has your client been hospitalized for mental issues? Does your client have a drug problem? Has CPS been involved in your client’s life? The answers to these questions and so many more can paint the picture of your client. A picture that can either help or hurt as assess whether or not a plea is appropriate.

Talk to your client and his parents. Get a history independent from that provided by probation. Depending on your client’s history, you may also need to speak with teachers, counselors, and others.

Know Your Prosecutor

When advising your client whether to plea or not, you must know your adversary. Is he reasonable? Can he try cases? Is he going to make a reasonable offer, or is there wiggle room in his offer to plea? Is he willing to offer deferred prosecution? Is he willing to dismiss one or more counts for a plea on another count? Is the judge likely to undercut his recommendation? Is his recommendation tied to “office policy” and therefore non-negotiable? Is he going to attempt to fix a weak case if you point out problems with the prosecution? Will he be reassigned before your case concludes?

Knowing your prosecutor is likely the least important part of this discussion, but it is still something you need to consider when advising your client on whether or not to plea, especially if that plea is with an agreed recommendation from the prosecutor.

Know Your Judge

Knowing your judge is just as important as knowing your case and your client. Knowing your judge is important in understanding whether an agreement with the prosecutor is a good deal for your client. Would the judge grant your client a deferred prosecution over the prosecutor’s objection? Would the judge allow your client to remain in the home on disposition despite the fact that the prosecutor wants a local residential commitment? Is it likely that the judge would find no disposition necessary? Is the judge likely to grant a motion to suppress? How likely is your judge to grant or deny certification requested by the prosecutor? How likely is the judge to follow probation officer recommendations? Will the judge request or require a urine test prior to considering a request for deferred prosecution?

If you don’t know these answers, it’s time to find out before you can fully and properly advise your client.

Know Your Options

In this context, outside of the option to plea or proceed to trial, you must also know your options, especially for disposition. Generally speaking, your options are: (1) no disposition, (2) probation, or (3) confinement. Probation can be in the child’s home or in a residential facility. Confinement can mean locally or within TJJD.

The court has available a myriad of options and programs within the system (juvenile probation) but is not tied to only those within the system.

Does your client’s family possess the resources to seek non-county resources such as therapy or drug treatment outside of the probation department? Does your client qualify for mental health or drug programs? When will your client be eligible to have his record sealed under each available scenario? Does probation have other resources that may be better tailored to your client’s need then those proposed by the prosecutor? Does your client’s family have the ability to supervise your client in an informal program (diversion) or will your client require more stringent rules? Would entering a plea on a lesser-included offense better serve your client’s interests? Will your client be required to register as a sex offender? Will a plea result in a suspended driving privilege?

All this and more must be known or explored by the lawyer so that they lawyer can competently and appropriately advise the client. Only the informed client can make the decision to plea or not to plea.

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