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As our Network President Marty Hayes indicated in his column this month, we often turn to our Affiliated Attorneys for a broader understanding of how various principles of law are applied across the nation. Looking more deeply into one of the issues the Washington Office of Insurance Commissioner originally raised but later dropped, we asked our affiliated attorneys to share their knowledge and experience with innocent clients who plead guilty when given an attractive plea offer. We asked--  

Why might an innocent person choose to plead guilty to a crime they did not commit? Have you seen this occur first-hand?

 So many attorneys wrote in to share their thoughts that we will run the first half of their responses this month and wrap up this question in our October edition.

Emanuel Kapelsohn, Esq.

Lesavoy Butz & Seitz LLC
1620 Pond Road, Suite 200, Allentown, PA 18104-2255

I believe criminal defendants often plead guilty to crimes they did not commit, for any number of reasons. A common reason is that, while they maintain their innocence, the risk that they might be found guilty by a jury that no one can control or guarantee, and have a very heavy sentence imposed, may be a very risky gamble, compared to accepting a plea bargain on a less serious charge, for an agreed shorter sentence. Thus, a sure thing versus a gamble.

I worked as an expert witness in the case of a young police officer who pled guilty to a charge of reckless homicide or some similar manslaughter-like offense, on a plea agreement that he would be sentenced to about 3 or 4 years, and would be eligible for parole in about 2 1/2 years. He had fired one shot, killing a man in a pickup truck he had approached at night. The driver had put his parked truck in gear and knocked the officer down. Whether the officer had fired while falling, or after he had already fallen and the truck was moving away from him was unclear, and was contested.

While defense counsel and I believed the officer had honestly feared for his life and had fired in self defense, he was an exceedingly poor witness. His story varied slightly each time he told it, which would have been capitalized on by the prosecution if the case went to trial. The officer had a wife and two young children. He said he took the plea bargain because if he went to trial and was convicted, he might be in prison until his children were in college. The plea bargain took away that grim possibility, in return for a sentence he felt he and his family could tolerate.


John R. Monroe

156 Robert Jones Road, Dawsonville, GA 30534-8527

This question implies that a person’s innocence is a known quantity. This might be the case in the typical TV legal drama, where a person who is truly innocent is charged with a serious crime (usually murder), and the star of the show defends the person and ultimately proves his innocence. In reality, whether a person is guilty of a crime can be much more nuanced. Consider the following actual example.

Dave Defendant wants to get money from his bank’s drive-up ATM. There is a car at the ATM, so he waits his turn. Dave observes the car’s driver, Victor Victim, appear to retrieve money from the ATM and then no further activity for some time. It appears to Dave that Victor may be just counting his cash and unaware that he is holding up the line. Dave taps the horn on his car to alert Victor of Dave’s presence, hoping maybe Victor will pull ahead to finish counting while letting Dave access the ATM.

Victor has a different reaction. He thinks Dave was being rude and impatient, so he gets out of his car and storms back toward Dave’s car to give Dave a piece of his mind. Victor is young and big – a bit intimidating. Dave is older, slighter, and not a physical person. He has no desire to get into a confrontation with Victor. Dave is legally carrying, so he holds up his handgun (pointing straight up, not at Victor), just to let Victor know that he is armed. Victor stops and calls 911 and reports being threatened with a gun. Dave is charged with aggravated assault with a firearm. Dave insists, and believes, he is innocent.

The DA offers Dave one year of probation if Dave pleads guilty, and the case will be dismissed after one year if Dave does not get into any more trouble (under the state’s “first offender” program). If Dave goes to trial and loses, he probably will get several years of probation, and perhaps even some prison time. The trial judge may not offer first offender treatment if Dave insists on a trial.

Dave insists he is innocent under the laws of the state. He can plead guilty, get only probation, and know with certainty the case will be dismissed and Dave will have no record of conviction. Or, he can go to trial and perhaps be found guilty and serve a longer sentence and be a convicted felon for life. Under these circumstances, many people will choose to plead guilty.


Neil G. Taylor

Law Offices of Neil G. Taylor, P.A.
SunTrust Plaza, Suite 1050
201 Alhambra Circle, Coral Gables, Florida 33134

 You ask, “Why might an innocent person choose to plead guilty to a crime they did not commit? Have [ I ] seen this occur first-hand”?

Yes, I have, and I can well-address it, as a former state prosecutor, state public defender, and federal prosecutor, who has tried over 400 felony cases.

People plead guilty to crimes they did not commit every day in the good ol’ USA. Often, frankly, it is because of the quality of the lawyer they hired. Most lawyers are not skilled trial lawyers and of the few that are, many simply have neither the time nor dedication to actually try a case. It is a very rigorous process and requires complete dedication to the client and their case. 

Consequently, especially when the punishment is minimized or the lawyer feels the offer is otherwise a reasonable resolution, rather than exert the time, energy, and dedication, they will tell the client to, “take the deal.”

Additionally, many clients cannot afford the cost of skilled criminal trial defense. As a result, they start out thinking they will be protected and aggressively defended but, when the invoices start rolling in, they realize it is not sustainable.

Finally, many clients have their cases disposed of by plea for fear of the consequences of going to trial and the potential for a judge who punishes a client if they are found guilty.

Taking your case to trial requires courage and determination, from the client ... as well as the attorney.


James B. Fleming

PO Box 1569, Monticello, MN 55362

 Every experienced criminal defense attorney has had this situation arise dozens and dozens of times over the course of a career ... and there are countless reasons why an attorney might counsel a client to plead in this fashion. 

  • The innocent client, with a prior conviction for statutory rape involving a 14 year old virgin. (Had that one.)
  • The client who is going to go to pieces on the stand and blow his chances to bits. (Had that one.)
  • The client who made statements to the police without his attorney present, instead of keeping his big mouth shut, where the attorney, no matter how skilled, is not going to be able to unring that bell. (Had that one.)
  • The client who forsakes a great self-defense defense, because even though he will win on that count, they have him dead solid perfect on a felon in possession of a firearm charge that will send him to prison for a mandatory five years stretch. (Had that one.)
  • The client with past background warts so large that the jury is going to want to fry him, no matter how innocent he is. (Had that one.)

And on and on and on.

Any attorney who claims that, “I never plea bargain my clients’ cases!” is either a liar, a rookie, or a complete idiot. Trials are ALWAYS 50-50 chances. You’re either gonna win or you’re gonna lose and there is absolutely no way to accurately forecast which it is going to turn out to be. Sometimes it is better to choose the devil you do know, instead of the devil you don’t know.


S. Magnus Eriksson

20860 N Tatum Blvd Ste 300, Phoenix, AZ 85050-4283
This email address is being protected from spambots. You need JavaScript enabled to view it.

This is a very good question because it happens very often in courts across the USA. Life and its outcomes are often less than perfect and many choices along the way can be very tough to make. Sometimes a fair amount of creativity goes into crafting a plea agreement to which parties can agree.

People who find themselves in the criminal justice system routinely plead to something mostly better, or at least less-bad, than the likely outcome at trial. Occasionally, people plead too quickly instead of having a trial. (And if one asks the average prison inmate, they probably will all say they’re wrongly imprisoned.)

Plea bargaining can be a double-edged sword. Sometimes it works out better for a client to plead to a completely different charge than the original. For example, a person charged with driving with a suspended driver’s license pleads to a noise ordinance violation. A plea to a non-driving offense is very advantageous to a person in that situation due the fact that the creative agreement results in the defendant avoiding collateral damage to his driving privileges. Same for a DUI client who pleads to reckless driving instead and saves a distinguished career with entities that frown on DUIs. Other good outcomes can be pleading to misprison of a felony when the person was charged with transporting heavy-duty drugs for sale. By doing so they can avoid prison all together instead of serving close to a decade. Such results are great outcomes in cases with high likelihood of conviction.

In situations more pertinent to the Network’s members and how this may play out in self-defense cases, plea agreements can be bittersweet. Let’s say in a great self-defense case, the government offers a plea that the defendant can’t refuse. The outcomes may have been much better had the individuals taken a concealed weapons class and acted slightly differently. In such cases, the defendants plead to a felony offense with a probation term instead of a long, mandatory prison sentence. This might happen to untrained individuals with nevertheless very strong self-defense claims, or in situations which are not clear cut self-defense situations but with some strong factors in favor of the defendant.

People in that situation feel very alone having to make a very tough decision. The odds of success at a jury trial could be very high, but the client risks a long mandatory minimum sentence in the event of conviction. A better and less bittersweet example is pleading to a misdemeanor offense in a serious felony case with a strong self- or other real defense claim. In such cases a misdemeanor plea saves the person a lot of money, stress and the risk of a felony conviction with a long prison term even though the outcome may not be exactly perfect. Getting outright dismissals of charges is generally very difficult, even in great cases.


John I. Harris III

Schulman, LeRoy & Bennett PC
3310 West End Avenue, Suite 460, Nashville, TN 37203
615-244-6670 Ext. 111

The question arises from time to time of why would someone who has a valid defense to a crime, such as the use of deadly force, enter into a plea bargain or submit a “no contest” plea? The fact is that this happens frequently, at least in Tennessee. 

Several years ago I was involved in a case where a young man was being attacked by two larger men. There were several identifiable witnesses who gave statements that the young man did not start the fight, that he was being attacked physically by two men at the same time, and that he pulled a gun that he illegally possessed (he did not have a permit) and shot one of the attackers. In that matter, the district attorney in a progressively “liberal” community was very much against citizens carrying firearms for self defense. The decision was made to charge the individual with multiple attempted homicide and other crimes involving serious felonies. Although the young man had a good legal and factual defense and likely would have prevailed on a self-defense claim, his risk, if he lost, was a minimum 10 years in prison under a statute that had no allowance for early release if the crime involved the use of a firearm. The plea offer? He was given the chance to plead to a lesser felony charge and would be able to and did receive supervised probation but no incarceration. The young man decided it was better to accept a felony conviction rather than to risk spending much of his life in prison.

In another recent case in Nashville, a police officer was being prosecuted by the district attorney for shooting an individual who was running away from a chase and who was displaying a handgun. The officer shot and the man died. Much of the chase was on “housing projects” security video but not an important few seconds that would have supported the officer’s theory of the case. The officer was being tried for murder.

Because of the recent convictions in the Floyd-Chauvin trial, there were concerns that the jury would also convict because it was a white officer and a black man that was killed. Again, it was a strong case of justifiable use of force. There had been several rulings by the trial judge that would be strong issues on appeal. The case was locally very high profile in the “Black Lives Matter” movement.

If the officer was unsuccessful at trial on the claim of justifiable use of force, he was looking at perhaps 40 or more years in prison. If the officer lost at trial but was able to prevail on some issues on appeal, he might spend several years in jail waiting on an appeal. On the eve of trial, he was offered a chance to enter a plea to a low grade felony that would require approximately 30 months in jail (likely less than the appeal window) and for which he might be released in as little as 12-15 months. The officer accepted the plea.

As these two examples show, it is not an uncommon occurrence for someone who is innocent or even who has a viable defense to nevertheless accept a plea deal if the risks of losing at trial are too great or if, frankly, the costs of hiring a trial attorney and expert witnesses are too great. It is critical to understand that the criminal court system is not always about justice. Sometimes, it is simply about the facts that a) government has unlimited resources to prosecute the individual and b) sometimes a small punishment is acceptable if the consequences of a loss at trial are too much to bear. The fact is that just because someone enters a “no contest” or other plea, it should not be construed as absolute proof that a jury would have concluded that the person did commit the crime.


Thank you, affiliated attorneys, for your comments about this topic. Members, please return next month for the second half of this discussion.

To read more of this month's journal, please click here.