I don’t want go to trial – are there any other choices that will keep my record clean?
It is a common misconception that the only two options are plead guilty or go to trial. In reality, an experienced and creative lawyer knows multiple ways to resolve a case in your best interest, while minimizing the stress and expense to you.
On TV, it seems like all court cases are resolved by a trial by jury. It’s very dramatic, the attorneys are passionate, and the jury promptly doles out justice. The plot generally is that there was a crime, and the attorneys argue over who committed that crime. In reality, the far more common situation is that we know an act was committed and by whom. What the attorneys fight over is whether that act constitutes a crime; and if so, what should the court’s response be. And there are lot of options.
For a number of reasons, around 5% of all criminal cases proceed to trial. Part of that is limited trial court availability (especially in 2020), but a larger part is that trial is an all-or-nothing, zero sum proposition. One side has to win, one side has to lose.
Imagine a person gets in fight and injures the other party; let’s say he breaks his nose. He is charged with Assault in the Second Degree. That charge carries 3-9 months in jail, and is a felony ‘strike’ offense. His defense is that the other side started it and he only hit him in self defense, and both parties’ stories are plausible. If he wins that trial, the charge is dismissed (and he may recover legal fees); there will be no probation, no efforts toward rehabilitation, and no restitution to the victim. If on the other hand he loses that trial, he goes to jail for at least three months and may incur thousands in court costs. For most people that means probably losing a job, housing, and greatly limiting future career opportunities. Particularly in “he said / she said’ type cases, both sides have risk: the prosecutor may not want to take that risk of dismissal, and the accused certainly dreads the consequences of conviction.
So what other options are there?
Courts increasingly encourage the use of ‘alternative dispute resolution’; ways to resolve criminal cases with compromises, and not necessarily the traditional notion of plea-as-charged bargaining. In Washington, courts enjoy wide latitude in permitting alternative resolutions that often don’t involve a criminal conviction. These include both formal (in court) and informal (out of court) diversion programs, deferred prosecution, and a variety of ‘therapeutic courts’. Therapeutic courts include options like Drug Court, Veteran’s Court, and Behavioral Health Court, each equipped to address the needs of different types of clients. In each of these alternative courts, the accused person agrees to supervision and a number of probationary conditions. Probation may include drug / alcohol treatment, community service, or group and individual counseling / therapy sessions. They all have one overriding concept in common – give a person who may have committed a crime the tools and insight needed to avoid finding him or herself in a similar situation in the future, while earning a dismissal and maintaining a clean record.
One of the oddest, and most underused options, is the Washington Compromise of Misdemeanor (COM). The COM is created by statute, which reads simply:
When a defendant is prosecuted … for a misdemeanor … the offense may be compromised as [follows:] if the party injured appear in the court … and acknowledge, in writing, that he or she has received satisfaction for the injury, the court may … order all proceedings to be discontinued and the defendant to be discharged.
Basically, if the victim is compensated, and agrees to it, the judge can just dismiss the case. This procedure is really a great opportunity for defense lawyers to get charges dismissed against clients without admitting guilt and without probation or risk of jail.
Every court views these requests differently; some impose a court fee, some don’t. Some allow the prosecutor to object, some don’t. Because the statute is pretty vague, they aren’t the same from one jurisdiction to the next. Like alternative courts, this is a resolution that isn’t all or nothing – the victim of the crime does get something out of it. In the COM context, the victim really controls the negotiation, so they control the amount of compensation they will settle for as well as any other terms. We have seen victims agree only on condition of an apology letter, for example. This negotiation between defendant and victim can be very therapeutic.
Of course there is a real need for attorneys or investigators to be cautious about contacting the adverse party in a criminal case, to avoid any appearance of witness tampering or undue influence. And there are some exceptions, notably graffiti, DUI, and domestic violence charges - but when done professionally and with appropriate safeguards, the COM is a vital tool that every lawyer should consider as part of their alternative resolution checklist.