Negotiating Before Arraignment and Pleading Guilty at the Arraignment
Defendants who believe the case against them is very weak often ask whether it's possible to negotiate a dismissal before the arraignment. Unfortunately, this possibility generally existsonly for defendants who hire private attorneys prior to arraignment. Defendantswho are represented by court-appointed counsel often do not even have counselappointed until the time of arraignment. And a self-represented defendantshould not risk additional legal difficulties by discussing the case with aprosecutor before arraignment (assuming that a prosecutor would agree to meetwith the defendant in the first place).
The Private Counsel Advantage
Defendants who hire private counsel before arraignmenthave a chance to derail the case for several reasons.
A weak case exposed
First, in most parts ofthe country, intake prosecutors (not the police) are supposed to analyze casesto make sure that there is evidence of guilt and that prosecution is in theinterests of justice. Frequently, however, the caseload is so heavy thatreviews are cursory, and weak cases sometimes slip into the pipeline. If anattorney who is well known to the courtroom prosecutor can convince thatprosecutor of the weaknesses in the case, the case may get dismissed.
Away from the limelight
Before arraignment, no one in the prosecutor’soffice has invested a lot of time or money in the case. With less invested, it's easier to let a weak case go.
A favor to overcrowded court dockets
Especially in urban areas, courtroom dockets(schedules) are crowded. By quickly disposing of weak cases, prosecutors candevote the little time they have to more serious cases. And disposing of iffy cases early on spares the courtroom prosecutor of the embarrasment of showing up in courtwith weak cases.
For all these reasons, if defense counsel can point outweaknesses that the intake prosecutor did not consider, or convince theprosecutor that further proceedings would not be in the interests of justice, aprearraignment meeting between the defendant’s attorney and the prosecutor mayresult in the case being derailed before arraignment.
Example: Redd Emption was arrested for carrying aconcealed weapon. Rushing to make an airplane, Redd forgot that the gun he wassupposed to leave at his house was still in his backpack. He was arrested whenthe airport metal detector revealed the gun. Redd has no prior arrests. Theonly reason that he had the gun in the first place is that a series ofrobberies had taken place in his apartment building, and his father had loanedhim the gun for protection. Redd is out on bail and is scheduled forarraignment in a week. Thinking that his arrest is a misunderstanding, Redd isuncertain about whether to hire an attorney. However, a private attorney may beable to get the case dismissed before the arraignment. Redd’s attorney may beable to contact the arraignment prosecutor to seek a mutually agreeableoutcome. Redd’s attorney can point out information that the intake prosecutormay not have been aware of—Redd didn’t own the gun; he had borrowed it forprotection, and inadvertently had it in his backpack. Though Redd istechnically guilty as charged, these factors may convince the prosecutor thattrying Redd is not in the interests of justice. As a result, the prosecutor mayagree to dismiss the case or offer Redd diversion (that is, agree totemporarily not file the charges and end the case permanently if Redd stays outof trouble for a period of time).