Plea Bargaining with the Judge

The case is ready for trial and all parties are present. From the bench, the judge makes a final attempt to resolve the case by saying “if we need to do a trial that’s fine, and I can call for a jury right now — but I’m just letting you all know that if the defendant was willing to plead to count 1 and state was willing to dismiss count 2, I’d be inclined to give supervised probation and we could get this case wrapped up today.”

Of course every county and every judge is unique, but most criminal attorneys have at least occasionally experienced some type of participation from the bench in working out a plea. So we know that it happens, but is it actually authorized by our statutes? Should it be? If it is, what are the limits, and what’s fair game for negotiation? Are the judge’s terms binding?

Read more


Challenging a Plea

Suppose that after judgment is entered a defendant wants to challenge a plea. Maybe he alleges that the plea wasn’t knowing and voluntary. Or maybe he claims that the judge imposed an illegal sentence. Can the defendant do this? I like to break this question into two parts: (1) Does the claim survive the plea? (2) If so, what procedural mechanism can be used to assert it? This post addresses both issues.

Read more

Ineffective Assistance and Plea Bargaining

The Supreme Court decided two cases last week about ineffective assistance of counsel during plea bargaining. The cases, Lafler v. Cooper and Missouri v. Frye, made a big splash in the media. Locally, they were featured on front page of the News and Observer. Nationally, they’ve been the talk of the New York Times and … Read more


“Show Me the Money”: Specific Performance of a Plea Agreement

Suppose a defendant is indicted on charges of trafficking, possession with intent to manufacture, sell and deliver, possession of drug paraphernalia, and simple possession. Suppose further that the defendant enters into a plea agreement with the State. Under the terms of the plea agreement, the defendant will plead guilty to one count of misdemeanor possession; … Read more

Ineffective Assistance in Plea Bargaining?

On Halloween, I was dressed up as a sheep, trick or treating with my daughter, Little Bo Peep. Fortunately, serious legal business was being conducted elsewhere: the Supreme Court heard oral argument in Lafler v. Cooper, a fascinating ineffective assistance of counsel case. Here’s a summary of the case, courtesy of SCOTUSblog: Cooper shot a … Read more

Sex Offender Registration as a Bargaining Chip

I am sometimes asked if a defendant convicted of a reportable sex crime can plea bargain his or her way out of the obligation to register. I have also been asked if a defendant convicted of a non-reportable offense can plead his or her way into registration. A formal advisory opinion from that state attorney … Read more

Restitution to Victims of Unconvicted Conduct

Can a defendant be ordered to pay restitution based on offenses that did not result in a conviction? Of course a defendant should not be ordered to pay restitution for a charge on which he or she was acquitted. State v. Bass, 53 N.C. App. 40 (1981) (restitution order for alleged food stamp overpayments was … Read more