COMMON MISCONCEPTIONS HEARD AT THE COUNTY JAIL
While you are in jail, you are bound to hear one or more of the following things. Some of them are funny. None of them are true (except perhaps one). An explanation will be given where appropriate, but when someone tells you about one of these things and swears that they are true, you should ask them where they went to law school.
MISCONCEPTION #1 : I will get three plea bargain offers.
TRUTH: This is probably incorrect. A plea bargain requires that you, your attorney, and the prosecuting attorney all agree to a deal to resolve your case. If the prosecutor will not agree to a deal, you will not get one. There is no way to make the prosecutor agree to a deal. Even if you have a great case, the prosecutor can still insist on going to trial; so can you. You have no right to a plea bargain. You do have a right to go to trial. In Morgan County , typically the first offer the State makes is the only offer the State makes. Now, if there is something about your case that is different than the Prosecutor originally thought, we may be able to get a better deal. This usually involves situations where a witness changes his/her story.
MISCONCEPTION #2 : My plea offer will improve if I do not take the first offer, so I should not accept it.
TRUTH: This statement may be true, or it may not be. See Misconception #1 above. If you put off taking a plea bargain until the plea bargain deadline expires, the Judge in your case will not accept a plea with any cap on your sentence. In general, if you are facing a plea bargain deadline, you should assume that you have the best offer that the prosecutor will accept, and you should realize that if you turn down the offer, you will be going to trial and probably facing significantly more time.
MISCONCEPTION #3: I have the right to continue my case three times.
TRUTH: No, you do not have that right. Any continuance, whether it is the first one or the fourteenth one, must be necessary. The Judge will decide if the continuance you request is actually necessary, and will grant the continuance only if the Judge feels it is truly necessary. You have no right to even the first continuance unless you can prove that it is necessary.
MISCONCEPTION #4: I want a “motion of discovery.”
TRUTH: Actually, there is no such thing as a “motion of discovery”. There is a motion for discovery, and what the prosecutor produces, by way of statements, police reports, and other evidence, is simply called “discovery”. There has never been anything in law called a “motion of discovery”. In Morgan County , the court issues its own motion in every case, so it is generally not necessary for me to file another one.
MISCONCEPTION #5: With a motion of discovery, I personally get my evidence.
TRUTH: Wrong again. First, there is no such thing as a “motion of discovery”. See Misconception #4 above. Second, as long as I represent you, I am the one working for you. Therefore, I, and not you, will be given the discovery material. I will go over the material with you. It is usually my practice to mail or give you everything that I receive, so unless the discovery consists of an automobile engine or something like it, I will be sending you copies of all paperwork I receive in your case. If you ever think that I've gotten something and not given it to you, just ask me and I'll be happy to show you what I've been given.
MISCONCEPTION #6: My lawyer has to do what I want, and to use the defense I specify.
TRUTH: No. I do not have to go by your wishes in these matters. As a person represented by an attorney, you have the right to decide only the following issues:
A. Whether or not to plead guilty or accept a plea bargain.
B. Whether to testify at your trial, and
C. Whether to waive a jury trial and have the trial to the Judge.
Now, I will absolutely consult with you about these issues and others, but I only must accept your decisions as they pertain to the above three matters. If you wish to represent yourself and the Judge decides you are qualified to do so, you will then have the responsibility to make all of the decisions in your case. Closely related to this is that oftentimes clients think they can improve their case by writing letters to the judge. DON'T DO IT. The letters can be used against you, and most of our judges don't read them anyway.
MISCONCEPTION #7: I'm entitled to a bond reduction.
TRUTH: Wrong. In Morgan County , as in most others, there are written guidelines for your bond, depending on how serious your case is, whether you were on probation, what your criminal history is, etc. Our judges usually follow these guidelines. I do not automatically file a request for bond reduction, although that is something we can discuss. If you are a PD client of mine, please read my letter about bond reductions.
MISCONCEPTION #8: Credit time is being changed to “3 for 1", so pretty soon I will get three days' credit for each day I serve.
TRUTH: This is highly unlikely with our current legislature. This rumor has been floating around the jail for decades. It is false. What is it with all these “threes”?
MISCONCEPTION #9: I am not a dealer because I only sold dope once, and that was to support my habit.
TRUTH: Once is enough. MISCONCEPTION #10 : Steve Litz is the best damn lawyer in the county, and he will fight for me like no one else.
TRUTH: Absolutely true. Not a misconception at all.
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