It is part of our national psyche that accused persons have the right to plead “not guilty” to any criminal charge.  The government has the burden to prove beyond a reasonable doubt each element of the crime.  If the government fails to meet that burden of proof, the accused cannot be found guilty.  So almost everyone pleads “not guilty” to almost any charge at the start of their case.  We are within our rights to do so.  And we can change our minds at any time – or can we?  What is much less understood, it seems, is the right to plead “guilty”.  This is only your right at arraignment, the hearing at which the charges are read to you.  After that, it is something you have to negotiate with the prosecution.  Who knew?  Very few of us, apparently.

It is only on a handful of occasions out of thousands of times that I have heard an attorney directly inform a defendant at the time of their arraignment that they have the right to plead guilty.  And most importantly, that this is the ONLY hearing at which they have the right to plead guilty as charged.  After years in the field, I am still wrapping my head around this concept, and now I will attempt to wrap yours around it.

In the vast majority of cases, pleading “not guilty” makes perfect sense.  You have just been arrested.  Everything is up in the air.  You are probably in custody and in shock.  A guard calls out your name from a holding tank where you and others wait behind bars.  You come out into another secure area, still in handcuffs, and a lawyer you have never seen walks up to you and says, “I am your lawyer for this hearing only.  This is your arraignment.  You are being charged with… [fill in the blank].  You will get screened later to see if you qualify for a public defender”.  So far so good.

Usually what follows is something along the lines of this:  “We don’t have time to go over your case or the facts.  The prosecutor is going to tell you what you are charged with and then I will say we waive formal reading, acknowledge receipt, and request to enter a plea of ‘not guilty’.  Later on, you can meet with your attorney and go over the facts of the case.   Then you can plan your defense and maybe negotiate some kind of deal with the prosecutor.  They are offering you x [weeks/months/years] if you plead today, but I don’t recommend it.  You can probably get a better deal later.  So let’s go on the record.”

This will make sense for the vast majority of defendants.  You haven’t even seen the police report, unless the defense attorney of the day has time to read part of it to you in “the tank” before your arraignment hearing.  You have not viewed any video or audio collected.  You have not interviewed any witnesses.  You may not even know who the witnesses will be.  How can you just give all that up, and plead guilty, without knowing what your defenses could be, and what kinds of weaknesses there might be in the prosecution’s case?  Without the opportunity to go over the facts of your case in detail with advice of counsel?  So you plead “not guilty”and then hope you get released on your personal recognizance (without having to post bail) and then you set up a meeting at your attorney’s office and start planning your defense.

This works great, as I said, in most cases.   But I was just talking to one of our defense attorneys who was filing an appeal based on ineffective counsel, when one of his colleagues followed exactly the above procedure.  Why?  Because his client had the right to plead guilty to a misdemeanor charge at his arraignment, but he wasn’t told that and he didn’t do it.  He pled not guilty, as his lawyer of the day advised him.  Then the city gathered more evidence against him, and realized hey, this case is actually a felony.  So they sent it on to the county, and he was charged with a felony.

Once he was charged with a felony, the city dropped the charges, something they have a right to do – unless you plead guilty as charged at your arraignment.  When you plead guilty to a misdemeanor, and your plea is accepted by the judge, you are thereby convicted of the crime, so no one can ever again charge you in felony court or anywhere else for the same act.  Why?  Because of a little thing called Double Jeopardy.  We cannot be charged twice with the same crime.  Not even in two different courts.  Once the case is tried, or a person pleads guilty, the case is over.  Of  course, if there is a hung jury, the case has not been resolved, and the prosecutor may choose to set it for a new trial.  But once there is a conviction, including when you plead guilty, you can never again be charged with that same crime.  Not in the US.

In the case at hand, the individual had been facing up to twelve months, the misdemeanor maximum, for the original charge in municipal court.    He had been offered a six-month sentence, but his lawyer of the day had told him, as is customary, that it was too early to settle.  They didn’t have all the evidence, so he should just plead not guilty and meet with his lawyer to try and get a better deal.  But he never got a better deal.  Why?  Because while he was taking his time to have his lawyer look into the case, the city prosecutor noticed that the case was actually a felony.  And duly passed the case on to the county for felony charges.

So now we have a defendant sitting in county jail, facing five years in prison, after turning down six months in jail, not understanding that this could even happen.  And a lawyer, who simply did what almost all the lawyers do almost all the time, being cast as ineffective counsel.  It may even be malpractice, even though it is the community standard and happens all day long, every day, perhaps across the country.  So wrap your head around it if you can.  I am still trying to.  And so is the guy sitting in jail wondering if he is headed for prison.