The Pre-Pleading Memorandum: The Legal Equivalent of a Hail Mary Pass

hail-mary-300x214The vast majority of New York State criminal cases end in plea bargains; getting a favorable one, however, largely rests on the shoulders of your defense lawyer.  And while many cases allow for easily negotiated pleas, many others involve deeply unpopular conduct or which have overwhelming evidence against the defendant.  These are the cases which require creativity from your attorney to achieve the best result possible.  In this post, I will discuss pre-pleading submissions; as the best New York criminal attorneys know, a well-researched and thorough document presented to the prosecutor and/or judge which extolls the virtues of the defendant or highlights mitigating factors of the defendant’s behavior can mean the difference between lengthy prison sentences and probation.  

An Ugly Case Ends Well Once the Prosecutors Learn More About the Defendant 

The pre-pleading memo submission is the legal equivalent of a Hail Mary pass: the defense lawyer has already advocated for a lower sentence to the prosecutor and has failed.  The lawyer is faced with either a potentially overwhelming case against his client or cannot risk the chance of a trial due to the potentially lengthy sentence facing his client if convicted.  Traditional methods out the window, the defense lawyer works on a submission to the prosecutor which presents the defendant in a completely different light than what is available to the prosecutor who, not surprisingly, has only seen a rotten side.  In one very bad DWI case which also charged the defendant with Assault in the Second Degree (PL § 120.05(4)), two counts of Vehicular Assault in the Second Degree (PL § 120.03(1)), two counts of Leaving the Scene of an Incident Without Reporting (VTL § 600(1)(a) and (2)(a)), and two counts of Operating a Motor Vehicle While Under the Influence of Alcohol (VTL § 1192(2) and (3)), a client of ours was arrested after drunkenly plowing into an immigrant deliveryman on his bicycle.  The defendant fled the scene and was captured blocks away; the deliveryman was left unconscious, brain damaged and, as noted in the criminal complaint, likely to die.  And to top it off: my client’s father was a wealthy Wall Streeter who was friendly with Bernie Madoff.   Not surprisingly, both the prosecutor and the presiding judge agreed that any plea agreement would require the defendant to spend five years in prison.

Instead of having the client plead to a five year prison sentence, we put together a gargantuan submission to the prosecutor and her supervisor which included dozens of character letters from friends, family, business associates and charities, all which spoke of the defendant’s good character.  In addition, we explained the defendant’s psychological state and noted his very young family which included three children.  To top it off, after delivering the written submission we brought the defendant to a meeting with the prosecutor and her supervisor, which revealed that the defendant was not the monster he was thought to be but instead had a horrendously aberrational bad act in a lifetime of otherwise good deeds.  Result: the plea offer went from five years in prison to 16 months, a reduction of 73% from a plea offer that was seemingly stuck in cement and going nowhere.

Sometimes the Pre-Pleading Memorandum Bypasses an Unreasonable Prosecutor and Goes Right to the Judge 

In a high-profile case currently in the news involving a leader in the burgeoning vegan food world, our client was charged with Grand Larceny in the Second Degree (PL § 155.40(1)), Criminal Tax Fraud in the Second Degree (NY Tax L § 1805) and lesser charges, due to allegations that she looted investor funds earmarked for her restaurant.  Despite compelling evidence that the defendant was badly manipulated by her codefendant, a lifelong fraudster with a criminal record, and ignoring a mountain of mitigating circumstances, the Kings County prosecutor refused to budge off her offer of 1-3 years in prison for both defendants.  The Brooklyn state judge handling the case, however, made clear that he would not be bound by the prosecutor’s seeming intransigence.  Multiple pre-pleading memorandum were submitted to the judge which included letters from friends, family and multiple victims in the case, all extolling the defendant’s virtues and blaming her codefendant for the lion’s share of the criminal responsibility in the case.  In addition, we provided contemporaneous emails and journal entries of the defendant which revealed that she had been manipulated and abused by the codefendant.  Finally, we included a lengthy psychological examination of the defendant which supported our view of her ultimate responsibility for the crimes alleged.  Our next court appearance is in 10 days and we expect to receive a formal promised sentence from the judge which is considerably lower than the prosecutor’s firm 1-3 years offer.

Conclusion: Hire a Lawyer Who Won’t Take No for an Answer 

When traditional advocacy does not work or the evidence in a case is just too overwhelming to allow for a trial, you’ll need an attorney who is willing to take a non-traditional path to a better plea deal — and that’s where the pre-pleading memorandum comes into play.  Inventive, creative, hard-working criminal defense lawyers will spare not detail and effort to get the best result for their clients.  Call the top New York criminal defense attorneys at the Law Offices of Jeffrey Lichtman at (212) 581-1001 to discuss your case today.   

Jeffrey Lichtman has received the highest rating (AV) from the Martindale-Hubbell Legal Directory, is recognized in the Bar Register of Preeminent Lawyers and has also been selected as a New York City Super Lawyer for being a leader in his field of criminal defense.  Mr. Lichtman has received a rating of 10.0/10 Superb rating from Avvo Lawyer Directory and was profiled in the New York Daily News, The New York Times as part of the “Public Lives” series and in a two-part series in Super Lawyers magazine.