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  1. #11
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    Default Re: Why Would a Public Defender Choice to Make Plea Bargin

    Quote Quoting jk
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    Yes, I know it happens all the time but a defendant actually has to commit perjury when they admit guilt to the court.
    No, they don't commit perjury when pleading guilty in plea deal when they are actually innocent of the charge to which they are pleading guilty.

  2. #12
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    Default Re: Why Would a Public Defender Choice to Make Plea Bargin

    Quote Quoting jk
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    I understand your point but I didnít want to get into the strategy of suggesting a person unlawfully stand in front of a judge and plead guilty knowing they arenít. Yes, I know it happens all the time but a defendant actually has to commit perjury when they admit guilt to the court.
    The Prosecutor will choose a crime of similar legal import or some type of lesser included offense.

    You won't be asked to plead to an offense completely unrelated to the one charged.

  3. #13
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    Default Re: Why Would a Public Defender Choice to Make Plea Bargin

    Quote Quoting RJR
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    The Prosecutor will choose a crime of similar legal import or some type of lesser included offense.

    You won't be asked to plead to an offense completely unrelated to the one charged.
    Well ... I have actually seen pleas to offenses that could not even remotely be considered a lesser included offense for the original incident, much less similar. I have cringed a few times at such pleas and have wondered how they could be lawful. I suppose as long as the defendant is not required to allocute he or she can be fine.
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  4. #14
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    Default Re: Why Would a Public Defender Choice to Make Plea Bargin

    Quote Quoting cdwjava
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    Well ... I have actually seen pleas to offenses that could not even remotely be considered a lesser included offense for the original incident, much less similar. I have cringed a few times at such pleas and have wondered how they could be lawful. I suppose as long as the defendant is not required to allocute he or she can be fine.
    I imagine it happens since there are thousands of courts across the U.S., though if the offense charged and offered are way out of legal justice, the Judge should not allow it.

  5. #15
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    Default Re: Why Would a Public Defender Choice to Make Plea Bargin

    Quote Quoting RJR
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    I imagine it happens since there are thousands of courts across the U.S., though if the offense charged and offered are way out of legal justice, the Judge should not allow it.
    I would like to think so ... but, I'm not so sure that the court just doesn't turn a blind eye to the matter if all parties are on board.
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  6. #16
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    Default Re: Why Would a Public Defender Choice to Make Plea Bargin

    If the DA makes an offer, both sides almost always speak with the judge in chambers about it. Often, it's before the DA's offer is conveyed to the client so when it is discussed, the defense attorney can also tell the client what the court has indicated the sentence will be if they take the offer. The court can agree to accept a plea to a lesser included charge without the DA's agreement. Also, the DA can amend charges to just about any lesser offense with the court's permission and if the defense doesn't object. Lastly, a defendant can always enter an Alford plea which means they are taking the offer while maintaining their innocence.

  7. #17
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    Default Re: Why Would a Public Defender Choice to Make Plea Bargin

    Quote Quoting Taxing Matters
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    No, they don't commit perjury when pleading guilty in plea deal when they are actually innocent of the charge to which they are pleading guilty.
    Really? Standing before a judge and being under oath and pleading guilty is truthful? Explain how it isnít.

    Quote Quoting cdwjava
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    Well ... I have actually seen pleas to offenses that could not even remotely be considered a lesser included offense for the original incident, much less similar. I have cringed a few times at such pleas and have wondered how they could be lawful. I suppose as long as the defendant is not required to allocute he or she can be fine.
    But they are often required to allocute. Even without allocution, stating you are guilty when you are actually innocent is lying which is perjury when under oath.

    Quote Quoting RJR
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    The Prosecutor will choose a crime of similar legal import or some type of lesser included offense.

    You won't be asked to plead to an offense completely unrelated to the one charged.
    no, not necessarily true. Often times it is the original charge with the plea deal being merely a sentencing recommendation.

    Quote Quoting cdwjava
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    I would like to think so ... but, I'm not so sure that the court just doesn't turn a blind eye to the matter if all parties are on board.
    Bingo

    Quote Quoting LegalWriter
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    If the DA makes an offer, both sides almost always speak with the judge in chambers about it. Often, it's before the DA's offer is conveyed to the client so when it is discussed, the defense attorney can also tell the client what the court has indicated the sentence will be if they take the offer. The court can agree to accept a plea to a lesser included charge without the DA's agreement. Also, the DA can amend charges to just about any lesser offense with the court's permission and if the defense doesn't object. Lastly, a defendant can always enter an Alford plea which means they are taking the offer while maintaining their innocence.

    that all depends on the state and the situation in whole. In Indiana often times a defendant pleads without the judge being involved in the plea agreement. In fact it isnít even an enforceable agreement because the courts are not a party to the agreement. It is between the prosecutor and the defendant only. I have personally witnessed a person under a plea agreement pleading guilty to the original offense. The DA had made promises of sentencing guidelines that included no jail time. The judge specifically asked if the plea was made freely and without any promises. If the defendant said no, the plea would not have been accepted. The defendant plead guilty, the court accepted it. The da recommended no jail time and the court agreed. Obviously the court is aware in an unofficial knowledge of the deal and most likely wil go along with the recommendation but they are not obligated to. They could impose a max penalty and there would be no recourse.


    and no, in the situations I have seen, an Alford plea would not be acceptable. Part of the process is that the defendant actually pleads guilty.

  8. #18
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    Default Re: Why Would a Public Defender Choice to Make Plea Bargin

    You don't know if the judge was involved prior to the plea being entered. When you are advising a client, one thing they absolutely want to know is how much time so running it past the judge is SOP. A plea deal between the DA and the defense IS an enforceable agreement once the deal is accepted and the plea entered. Before that moment, the DA can withdraw the offer. If the plea deal included the DA agreeing to a negotiated sentence, then if the court doesn't want to go along, the defendant has the right to reject the deal. If the court changes it's mind at sentencing, the defendant has the right to withdraw his plea. The court cannot reject an Alford plea. That was part of issue in Alford. A defendant has a right to accept a deal and still maintain his innocence.

  9. #19
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    Default Re: Why Would a Public Defender Choice to Make Plea Bargin

    Quote Quoting LegalWriter
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    You don't know if the judge was involved prior to the plea being entered. When you are advising a client, one thing they absolutely want to know is how much time so running it past the judge is SOP. A plea deal between the DA and the defense IS an enforceable agreement once the deal is accepted and the plea entered. Before that moment, the DA can withdraw the offer. If the plea deal included the DA agreeing to a negotiated sentence, then if the court doesn't want to go along, the defendant has the right to reject the deal. If the court changes it's mind at sentencing, the defendant has the right to withdraw his plea. The court cannot reject an Alford plea. That was part of issue in Alford. A defendant has a right to accept a deal and still maintain his innocence.
    Well, the defendants attorney and the prosecuting attorney stated such.

    regardless, standing in front of the judge and agreeing that there had been no promises made to induce the guilty plea surely smacks of either the judge not being aware or actual extortion.

    and no, the deal was not enforceable. Both the defense attorney and the prosecuting attorney stated this. It is an extra judicial agreement. You can deny that all you want but I was very closely related to the defendant in one of these types of situations. I know the truth and facts of the matter.

    the plea deals often include the defendant pleading guilty so no, they cannot maintain their innocence. With Alford he still plead guilty. If you ask the residents of most prisons you will find that many inmates maintain their innocence. That doesn’t alter the fact they may have stood before a court and plead guilty.

    so tell me how does an Alford plea play in to a situation where the defendant is required to allocute? Many plea deals do require allocution.

  10. #20
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    Default Re: Why Would a Public Defender Choice to Make Plea Bargin

    Quote Quoting jk
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    Really? Standing before a judge and being under oath and pleading guilty is truthful? Explain how it isnít.
    Whether the responses to the judge's questions in the plea hearing would be considered "truthful" depends on what is asked, what the response is, and what the actual facts are. Depending on exactly what is asked there may be no lie. Even if there is a lie, it is not necessarily perjury. Perjury is generally the giving of false testimony while under oath in court. But defendant in the plea hearing is not testifying on the stand and may not be under oath. In the jurisdictions I practice, the statements made at the plea hearing are taken under oath and would not be subject to perjury. Even if that was a possibility, an Alford or nolo contendre plea could be used for the plea deal instead. In short, there is certainly a way to do the plea deal even when the defendant is actually not guilty that would not amount to perjury.

    Quote Quoting jk
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    Even without allocution, stating you are guilty when you are actually innocent is lying which is perjury when under oath.
    I disagree. Accepting a plea of guilty is no more a lie than a defendant pleading not guilty when, in fact, he is guilty. Can you find me even one appellate decision that states pleading guilty when the defendant is innocent is perjury?

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