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Criminal Law Section Newsletter | December 2013


Council Recap

The Criminal Law Section Council met on Wednesday, December 11, 2013.  Following are some of the highlights.

1.  Mug Shot Legislation. Council members received a copy of proposed language to address the online publication of mug shots.  The proposed language makes it unlawful to disseminate criminal record information through print or electronic media and require the subject of the record to pay a fee to have the information corrected or removed.  Members commented that the language should include a penalty for the offense.  The section is not being asked to comment on the proposed language at this time, so we will take a wait and see approach.  If the language is introduced during the upcoming legislative session, then we may seek a section only position. 

2.  Remote MNCIS Access for Private Defense Attorneys.  The section has corresponded with Chief Justice Gildea regarding its concerns that private defense attorneys are unable to obtain the same level of remote MNCIS access as public defense attorneys.  Justice Gildea recently responded that an advisory group looking at similar topics has been made aware of the issue.  The Council discussed the issue further and decided to draft a second letter to ask if it would be possible for the section to provide direct input to the advisory group. 

Lessons from the Trenches
A recurring column about the everyday practice of criminal law.

Negotiating Your Criminal Case
by Paul Baertschi

Much of what criminal defense lawyers and prosecutors do is negotiate.  As a prosecutor and an occasional defense attorney, I have observed and participated in thousands of negotiations. What are the most effective tactics?  There are undoubtedly many differing opinions and views on this. I will give you some ideas on what I see as most effective for defense attorneys. 

First and foremost, any negotiation must be authentic. It is usually counterproductive to convey unrealistic or phony expectations. You don’t have to “show all your cards” but the failure to acknowledge the obvious facts that are unfavorable to your side simply lowers your credibility with your opponent.  Distorting the facts is even worse.
Secondly, be realistic.  Focus on your client’s strongest objective- whether it is to avoid jail time or avoid a conviction or minimize the financial liability or something else. Asking for everything and conceding nothing won’t get you far in most cases. 

Third, give the prosecutor reasons to distinguish your case from other “typical” cases.  You can almost always find something about your client or the facts of the case that warrant not treating your client like most others facing a similar charge. Whether it is flaws in the investigation or unique characteristics of your client or an interesting legal issue, find the angle that carries the most leverage to obtain a favorable result.

Fourth, don’t telegraph your intention to plead guilty to the main charge if there is even a slight chance that the prosecutor may offer a lesser charge or a stay of adjudication. You never know for sure if the officer just moved to Alaska and is unavailable for trial!

Finally, be prepared. Know the case better than the prosecutor.  Have the documents to prove that your client has been seeing a therapist or has paid the restitution or has received awards or whatever is relevant.  Make sure you have read the statute and case law interpreting it. Bring case law to support your legal argument.  And be respectful of the prosecutor. Negotiating as a professional and in a civil manner can make doing your job enjoyable and productive without making the next case even more difficult.