I hate negotiating with the government. I do. I really, really do. I don’t (often) negotiate with the government to reach a plea deal.
When I try to, they don’t believe it is real. They seriously think it is some kind of trick. In fact, the last time I tried to negotiate a deal, the prosecutors called my military co-counsel to ask them what I really was up to. This prosecutor even dared to say that I was not trustworthy. Seriously.
When I was a uniformed defense counsel at Fort Hood, I wanted to set the tone that I was not afraid to try cases, that I had the ability to try cases, and I would outwork them every time. I contested drug cases, AWOL cases, DUI cases, you name it. And I did outwork them. I am told that the prosecutors groaned when I was detailed (assigned) to their cases. But it meant that when a client needed a good deal, I could negotiate a very effective deal for them. Mostly because I was known for making it really painful. I filed motions. A lot of motions. So, when a case came to me with a client who really needed a deal, I was able to negotiate very favorable terms. I even negotiated guilty pleas with a panel to sentence. Those were wins. I knew my judge, and I knew the panel, and the client benefitted from my reputation as being a fierce litigator.
Something has shifted, to be sure. The last time I tried to negotiate a deal with the government, which was met with pure skepticism, taught me that my opportunities to negotiate pretrial agreements with the government has probably been eclipsed. And I am okay with that.
Thankfully, our clients do not suffer for it. I don’t negotiate deals anymore, but I have team members who are extremely adept about negotiation. Our overall ability to be effective for our clients is that should those negotiations break down, we are poised to take the case all the way. Some cases need to be tried, even if the facts (in a case file) feel overwhelming to the client.
The first reason cases need to be tried (other than innocence, duh) is when the government is overestimates their ability to prove what they charged. The second reason cases are destined for the inside of a courtroom occurs when the government overvalues the “worth” of the case, meaning the range of the likely punishment given the facts and circumstances. The third cause is when the parties cannot reach agreement on the Stipulation of Fact, which is often related to reasons one and two. The fourth reason I want to cite may be a symptom of the first two, but I would speak to separately is because the senior attorney believes the case should be tried because their junior prosecutors will benefit from trying the case as practice for future ones. Really.
So, I do lots of things in the name of seeking justice. And I’ll keep doing them. But it would appear that I won’t be negotiating deals. And that’s okay. For military justice.
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