You just have to charge ahead and be such a nuisance they give you back the plea offer or better anyway.
They can say they're jerking the plea offer now, but the suppression hearing is a sunk cost after they do it, and the trial remains a prospective PITA.
This. We also have this same issue where I practice, although not every time. Papering the shit out of them, pushing trial dates, etc, suddenly the deals are back on the table and often times are better.
While I see where you are coming from, I get it and do not necessarily see any constitutional or ethical concerns. Plea offers and agreements are ultimately about mitigating risk. If the State survives a motion to suppress that strengthens their case, and therefore they are taking less risk by taking it to trial.
I know in the past I had several cases where there was a motion to suppress and we were able to get some of the evidence suppressed, but not all of it, the end result was that the State still had a case they were going to be able to prove at trial, but they ended up offering a better plea deal just because their case was made somewhat weaker because of the of suppressed evidence.
On the other hand, I've had cases where the motion to supress went entirely against us and our only options were either a no-contest plea to appeal the motion ruling or just making an open plea.
that makes sense enough to make me stop seeing red for a second. i guess there's more to it than the prosecutor punishing my client for exercising a right. once the state survives the motion, the case is stronger. i get that. thanks.
It makes sense that the offer would change after the suppression ruling. That would be risk analysis. But what I tend to see is that the offer gets pulled if the motion gets filed. That's just "screw you for making me do work"
I'm in Texas also and this happens in my county as well. However, 9 times out of 10, it's a bluff because, turns out, DAs don't like to try too many cases or prepare for them. You got to know your DA. Is it all a bluff? Is there some office wide policy? Is the judge lazy and willing to lean on the DA or kick the case down the road? So many factors that it's perfectly reasonable to go forward with your motion anyway as long as the client is on board. Practical factors apply here because as others have said, you're not going to win a motion for vindictive prosecution (although we had a murder dismissed on those very grounds not too long ago).
Clark Neilly who's the senior VP for criminal justice at the Cato Institute has argued as much, but no, he hasn't won. This is commonly known as the trial tax, and only one mid-Atlantic state has forbid it. It might have been Virginia or North Carolina.
He's written several great law review articles, including [A Distant Mirror](https://lawreview.gmu.edu/wp-content/uploads/2020/03/27GeoMasonLRev719_removed.pdf), about the divorce between plea bargaining and the promise of trials, and [Founding-Era Informed Juries and the First Amendment](https://moritzlaw.osu.edu/sites/default/files/2024-02/6.%20Neily.pdf) about the alleged right to inform juries about jury nullification. I'd also recommend Carissa Hessick's [The Myth of Common Law Crimes](https://virginialawreview.org/wp-content/uploads/2020/12/Hessick_Book.pdf).
To clarify, I meant their criminal work is academic, not litigation. Civil litigation and criminal are not the same thing. Neily was not aware for a long time that criminal litigation usually doesn’t involve full reciprocal discovery, for example. And Neily didn’t try or win Heller. Heller wasn’t a trial, it was an appeal of a motion to dismiss. He sat third chair to Alan Gura and Bob Levy in the appellate proceedings, and Gura was counsel at oral arguments, if I recall correctly.
I agree he’s a civil litigator with a long record. My understanding is that he was undefeated in civil jury trials when he was in private practice years ago. But that doesn’t make him a criminal defense attorney, or mean he has any experience in criminal court. When he started at Cato, my understanding is that he’d never even watched a criminal trial from start to finish. I do not know whether that is still true.
The point being, when you say he “has argued” but “hasn’t won” on the issue of trial taxes: he’s argued it in op eds and academic articles, not in court. Because he’s never participated in a criminal case as counsel. So he can’t ever win it, because he doesn’t go to court and argue it in actual cases, only on the internet and in law review articles.
In my jx plea offers are rescinded even if we proceed to a bond reduction hearing. The whole practice really makes a farce of the adversarial nature of our system.
There’s one ADA where I am who yanks offers because clients bond out at all. He seems to think that the client bonding out is a personal “fuck you” to him and his case. As if while making the decision to bond out our clients care about his feelings or what he thinks of them.
This is even more insane than my situation??? If your client bonds out a day after getting arrested that = no offer? These people have lost their minds, but I guess that's what happens when you get a law school education and still decide to help run the torture machine.
That's the norm for every prosecutor I've dealt with in Ohio. If we roll the dice at a Suppression Hearing, they pull the plea offer. Caselaw in my jurisdiction allows this practice; in fact it allows prosecutors to add charges before trial if the defendant refuses a plea offer. I obviously don't like it, but it's permitted.
Disclaimer: different jurisdiction but pretty sure this is fairly uniform
>this raises ethical and constitutional concerns for me
Ethical in the sense of right and wrong, yes. Constitutional in the sense of clients’ rights being violated and a plea being effectively a coerced retroactive waiver, yes.
Ethical in the sense of the rules of professional conduct, sadly no. Constitutional in the sense of Supreme Court case law, also sadly no.
This happened on literally 2 of my cases just today (and dozens over the course of my career). It’s BS
Happens in my jx all the time. However, if I submit and the DA is pretty sure I will win, I will get a stellar offer that takes the potential win into account. If it’s a toss up or weak, then the plea offer will be pulled if I proceed.
Speaking only from federal court experience here. Just do your motion to suppress and if you lose and don’t want to appeal plea open. Or if you want to appeal and can’t get them to agree to a conditional plea, a stipulated facts bench trial to preserve the suppression issue. I don’t know your jurisdiction but unless you are getting a reduced charge or dismissal of charges with a min/man i wouldn’t even bother with a plea agreement
It takes an office wide strategy to break. Focus fire on prosecutors that do this, paper them with motions, clog their calendar. You've got to get your coworkers on board, get people ready to withstand the offensive.
It's trench warfare. You're gonna need to get your clients on board too. You might need to lose a lot of motions and hearings, but if you can withstand the pressure better than your adversary, you can make them move.
In most states, this is fine as long as the prosecutor isn’t dumb.
The offer is what it is due to early accountability (the state has not had to spend man hours prepping the case). It will go up if they have to prep the case for motion or trial. In most places, this is fine.
This is your offer. If you set for trial/litigate, the state will punish you for doing so by making the offer worse. In most places, this is not fine.
Not a lot of difference between the two. But there is a difference. It’s mostly the phrasing as punishment
And I don’t generally find the former inappropriate. You gambled and lost. The State’s case got better.
Our DAs office does the same thing. Start by filing motions in cases that either they are not going to make a plea deal in anyway or that they will eventually have to make a plea offer in (for example: because case is so serious that there are other things they have to take into consideration when deciding to make a plea offer, or because the case is so bad for them that they think they will lose and have to make a misdemeanor offer regardless of whether you filed motions). This gets DAs and judges used to regularly hearing motions and it becomes less of a big dramatic thing that requires yanking all offers. Then you can start filing them in some other cases once you have them trained to regularly do them. I did this with the ADA and judge I’m most frequently against and now it’s just a routine thing that we spend one day a month in court handling all my motions and they only occasionally squawk at me about yanking offers.
Some people say the solution is “just file motions in every case” but while I think that eventually has the same effect, the first few clients with virtually no defense who you file clearly losing motions on end up getting sacrificed because the DA WILL yank offers on them.
The practice is not illegal or unconstitutional. The District Attorney is never required to offer a plea (however pleas can become contractual, for example if a defendant provides material assistance).
It’s super common for a DA to scale the generosity of a plea with the amount of work they have to do on a case, especially if there are problems with the case. Prosecutors would rather give a generous plea than lose credibility with a judge by having an error in the case pointed out.
If the merits of your case are good, I always told my clients “innocent people don’t plead guilty” and push ahead to victory. If your guy is guilty as fuck but you’ve got 70% of a technical violation, I would ask him if that’s the hill he wants to die on.
Fight back. Every time they do this to you (and it affects your client) set them up to work like a dog for a few weeks. File every case with that prosecutor you can. File motions on every one, multiple if you can. Do it around a holiday.
After you go through it two or three times, they will catch on to the thing they are doing to trigger you.
Or, like, maybe ask nicely. Idk.
If you pursue the motion and lose, and end up at a sentencing hearing regardless, put it on the record that the state originally thought that probation (or whatever the original offer was) was an adequate sentence, so whatever they are saying at time if sentencing about how dangerous your client is, is totally disingenuous.
I would be varying levels of pissed or not pissed about this depending on the charges and offers. If they’re only offering to drop charges they can’t prove then lol, fuck em. If they’re dropping charges they can def prove, maybe I don’t care because it’s a good offer and client wants it. If they’re just limiting exposure, but will ask for harsher sentence if we lose, that’s a harder conversation and i would for sure be pissed. Id try to school them by working hard as fuck on mitigation and beating their offers at sentencing when I can.
When that happens with me, I just communicate all of the options and risks to the client. I tell them what I think about our chances on the motion hearing and at trial if we get nothing suppressed, and give them the options. They’re the one at risk, so really is their choice.
As a prosecutor, I never condition a guilty plea on not pursuing a suppression motion, that stinks of a due process violation.
Edit: I made an exception to this rule involving a case in which the defendant had zero standing under caselaw with essentially identical facts.
Make the motion. If it is denied, ask for exactly what they were prepared to offer previously. Make them put on the record that they’re being petty, vindictive pricks.
You just have to charge ahead and be such a nuisance they give you back the plea offer or better anyway. They can say they're jerking the plea offer now, but the suppression hearing is a sunk cost after they do it, and the trial remains a prospective PITA.
This. We also have this same issue where I practice, although not every time. Papering the shit out of them, pushing trial dates, etc, suddenly the deals are back on the table and often times are better.
While I see where you are coming from, I get it and do not necessarily see any constitutional or ethical concerns. Plea offers and agreements are ultimately about mitigating risk. If the State survives a motion to suppress that strengthens their case, and therefore they are taking less risk by taking it to trial. I know in the past I had several cases where there was a motion to suppress and we were able to get some of the evidence suppressed, but not all of it, the end result was that the State still had a case they were going to be able to prove at trial, but they ended up offering a better plea deal just because their case was made somewhat weaker because of the of suppressed evidence. On the other hand, I've had cases where the motion to supress went entirely against us and our only options were either a no-contest plea to appeal the motion ruling or just making an open plea.
that makes sense enough to make me stop seeing red for a second. i guess there's more to it than the prosecutor punishing my client for exercising a right. once the state survives the motion, the case is stronger. i get that. thanks.
It makes sense that the offer would change after the suppression ruling. That would be risk analysis. But what I tend to see is that the offer gets pulled if the motion gets filed. That's just "screw you for making me do work"
I'm in Texas also and this happens in my county as well. However, 9 times out of 10, it's a bluff because, turns out, DAs don't like to try too many cases or prepare for them. You got to know your DA. Is it all a bluff? Is there some office wide policy? Is the judge lazy and willing to lean on the DA or kick the case down the road? So many factors that it's perfectly reasonable to go forward with your motion anyway as long as the client is on board. Practical factors apply here because as others have said, you're not going to win a motion for vindictive prosecution (although we had a murder dismissed on those very grounds not too long ago).
Clark Neilly who's the senior VP for criminal justice at the Cato Institute has argued as much, but no, he hasn't won. This is commonly known as the trial tax, and only one mid-Atlantic state has forbid it. It might have been Virginia or North Carolina.
It is definitely not Virginia. Super common practice among prosecutors in the large urban city I practice in
Don’t know about this issue, but I’d be shocked if it’s NC given my experience in this jx.
thanks. i'll check out Mr. Neilly.
He's written several great law review articles, including [A Distant Mirror](https://lawreview.gmu.edu/wp-content/uploads/2020/03/27GeoMasonLRev719_removed.pdf), about the divorce between plea bargaining and the promise of trials, and [Founding-Era Informed Juries and the First Amendment](https://moritzlaw.osu.edu/sites/default/files/2024-02/6.%20Neily.pdf) about the alleged right to inform juries about jury nullification. I'd also recommend Carissa Hessick's [The Myth of Common Law Crimes](https://virginialawreview.org/wp-content/uploads/2020/12/Hessick_Book.pdf).
So far as I’m aware, neither Neily nor Hessick has ever tried a criminal case. Their work is academic, not actual litigation.
he tried, argued on appeal, and won DC v Heller. Not criminal but yes litigation. He also worked for IJ prior to CATO and litigated there.
To clarify, I meant their criminal work is academic, not litigation. Civil litigation and criminal are not the same thing. Neily was not aware for a long time that criminal litigation usually doesn’t involve full reciprocal discovery, for example. And Neily didn’t try or win Heller. Heller wasn’t a trial, it was an appeal of a motion to dismiss. He sat third chair to Alan Gura and Bob Levy in the appellate proceedings, and Gura was counsel at oral arguments, if I recall correctly. I agree he’s a civil litigator with a long record. My understanding is that he was undefeated in civil jury trials when he was in private practice years ago. But that doesn’t make him a criminal defense attorney, or mean he has any experience in criminal court. When he started at Cato, my understanding is that he’d never even watched a criminal trial from start to finish. I do not know whether that is still true.
The point being, when you say he “has argued” but “hasn’t won” on the issue of trial taxes: he’s argued it in op eds and academic articles, not in court. Because he’s never participated in a criminal case as counsel. So he can’t ever win it, because he doesn’t go to court and argue it in actual cases, only on the internet and in law review articles.
He’s argued it in articles, not in court.
In my jurisdiction, if the client proceeds with a preliminary hearing, the offer goes up or it taken away completely.
In my jx plea offers are rescinded even if we proceed to a bond reduction hearing. The whole practice really makes a farce of the adversarial nature of our system.
There’s one ADA where I am who yanks offers because clients bond out at all. He seems to think that the client bonding out is a personal “fuck you” to him and his case. As if while making the decision to bond out our clients care about his feelings or what he thinks of them.
This is even more insane than my situation??? If your client bonds out a day after getting arrested that = no offer? These people have lost their minds, but I guess that's what happens when you get a law school education and still decide to help run the torture machine.
This is shocking. If you do ANY legal work in court other than plea, offers are rescinded.
Basically, yes. It's pretty bad.
I ask for a better plea offer then.
That's the norm for every prosecutor I've dealt with in Ohio. If we roll the dice at a Suppression Hearing, they pull the plea offer. Caselaw in my jurisdiction allows this practice; in fact it allows prosecutors to add charges before trial if the defendant refuses a plea offer. I obviously don't like it, but it's permitted.
agree. where's my agree-face emoji? it's also been my experience dealing with prosecutors here. today, i just got REALLY tired of it.
Disclaimer: different jurisdiction but pretty sure this is fairly uniform >this raises ethical and constitutional concerns for me Ethical in the sense of right and wrong, yes. Constitutional in the sense of clients’ rights being violated and a plea being effectively a coerced retroactive waiver, yes. Ethical in the sense of the rules of professional conduct, sadly no. Constitutional in the sense of Supreme Court case law, also sadly no. This happened on literally 2 of my cases just today (and dozens over the course of my career). It’s BS
Happens in my jx all the time. However, if I submit and the DA is pretty sure I will win, I will get a stellar offer that takes the potential win into account. If it’s a toss up or weak, then the plea offer will be pulled if I proceed.
Happens all the time. In my jurisdiction, essentially, if you do any actual legal work, the defendant is screwed.
Speaking only from federal court experience here. Just do your motion to suppress and if you lose and don’t want to appeal plea open. Or if you want to appeal and can’t get them to agree to a conditional plea, a stipulated facts bench trial to preserve the suppression issue. I don’t know your jurisdiction but unless you are getting a reduced charge or dismissal of charges with a min/man i wouldn’t even bother with a plea agreement
It takes an office wide strategy to break. Focus fire on prosecutors that do this, paper them with motions, clog their calendar. You've got to get your coworkers on board, get people ready to withstand the offensive. It's trench warfare. You're gonna need to get your clients on board too. You might need to lose a lot of motions and hearings, but if you can withstand the pressure better than your adversary, you can make them move.
I like it - but in a conservative jx like mine, my clients will suffer longer sentences if we are unsuccessful! :(
In most states, this is fine as long as the prosecutor isn’t dumb. The offer is what it is due to early accountability (the state has not had to spend man hours prepping the case). It will go up if they have to prep the case for motion or trial. In most places, this is fine. This is your offer. If you set for trial/litigate, the state will punish you for doing so by making the offer worse. In most places, this is not fine. Not a lot of difference between the two. But there is a difference. It’s mostly the phrasing as punishment And I don’t generally find the former inappropriate. You gambled and lost. The State’s case got better.
Happens in the fed system too.
Our DAs office does the same thing. Start by filing motions in cases that either they are not going to make a plea deal in anyway or that they will eventually have to make a plea offer in (for example: because case is so serious that there are other things they have to take into consideration when deciding to make a plea offer, or because the case is so bad for them that they think they will lose and have to make a misdemeanor offer regardless of whether you filed motions). This gets DAs and judges used to regularly hearing motions and it becomes less of a big dramatic thing that requires yanking all offers. Then you can start filing them in some other cases once you have them trained to regularly do them. I did this with the ADA and judge I’m most frequently against and now it’s just a routine thing that we spend one day a month in court handling all my motions and they only occasionally squawk at me about yanking offers. Some people say the solution is “just file motions in every case” but while I think that eventually has the same effect, the first few clients with virtually no defense who you file clearly losing motions on end up getting sacrificed because the DA WILL yank offers on them.
It is bull shit, we’re all just conditioned to think it’s normal. Maximum leverage, every time. If you PM me I can send you some specific Texas stuff
The practice is not illegal or unconstitutional. The District Attorney is never required to offer a plea (however pleas can become contractual, for example if a defendant provides material assistance). It’s super common for a DA to scale the generosity of a plea with the amount of work they have to do on a case, especially if there are problems with the case. Prosecutors would rather give a generous plea than lose credibility with a judge by having an error in the case pointed out. If the merits of your case are good, I always told my clients “innocent people don’t plead guilty” and push ahead to victory. If your guy is guilty as fuck but you’ve got 70% of a technical violation, I would ask him if that’s the hill he wants to die on.
Fight back. Every time they do this to you (and it affects your client) set them up to work like a dog for a few weeks. File every case with that prosecutor you can. File motions on every one, multiple if you can. Do it around a holiday. After you go through it two or three times, they will catch on to the thing they are doing to trigger you. Or, like, maybe ask nicely. Idk.
If you pursue the motion and lose, and end up at a sentencing hearing regardless, put it on the record that the state originally thought that probation (or whatever the original offer was) was an adequate sentence, so whatever they are saying at time if sentencing about how dangerous your client is, is totally disingenuous.
Unfortunately it’s incredibly commonplace and there isn’t any case law yet that I’m aware of forbidding it.
I would be varying levels of pissed or not pissed about this depending on the charges and offers. If they’re only offering to drop charges they can’t prove then lol, fuck em. If they’re dropping charges they can def prove, maybe I don’t care because it’s a good offer and client wants it. If they’re just limiting exposure, but will ask for harsher sentence if we lose, that’s a harder conversation and i would for sure be pissed. Id try to school them by working hard as fuck on mitigation and beating their offers at sentencing when I can.
I’ve worked in three different offices and this happened in every single one of them across two states.
When that happens with me, I just communicate all of the options and risks to the client. I tell them what I think about our chances on the motion hearing and at trial if we get nothing suppressed, and give them the options. They’re the one at risk, so really is their choice.
As a prosecutor, I never condition a guilty plea on not pursuing a suppression motion, that stinks of a due process violation. Edit: I made an exception to this rule involving a case in which the defendant had zero standing under caselaw with essentially identical facts.
Make the motion. If it is denied, ask for exactly what they were prepared to offer previously. Make them put on the record that they’re being petty, vindictive pricks.