After the rights were waived and counsel appointed at arraignment, there might be something that was not legally a part of the arraignment. This was known as plea bargaining. It would not take place if the charges were serious. The New York Criminal Court, where these arraignments took place, only had jurisdiction over misdemeanors and preliminary matters on felonies. A plea of guilty could not be entered to a felony and so plea bargaining on serious cases was down the road. It was different for misdemeanors where the maximum penalty was no more than a year in jail.

Court administrators pressure judges to “dispose” of cases quickly. In practice this meant to get pleas of guilty or a dismissal that would clear cases from the docket. If the charges were of a kind that might be plea bargained, the judge would call the assistant district attorney and me to the bench where we would have a conversation that was private and not on the record.

The prosecutor’s consent was necessary for any guilty plea to less than all the charges. Thus, the assistant district attorney would indicate to what charge(s) he would allow a guilty plea with the understanding that he would dismiss the remaining one. He might also indicate what he thought the punishment should be. I would indicate whether this was sensible to me and often make a counter offer, not generally on the charges but to the sentence. If I had learned plausible reasons from my interviews why the matter might not be as serious as depicted in the charging papers, the judge would ask the arresting officer or the complaining witness something to weigh in.

Finally, the judge would indicate what sentence he would impose if the defendant did plead guilty to the charges the prosecutor offered. I would then go back to my client standing at a table a few feet away from the bench. I would tell the client in a confidential tone what had happened at the bench. The defendant then had a few moments, and only a few moments, to decide whether he wanted to take that offered plea. If he did want to take what had been offered, I indicated that to the court, and his plea was taken. This required an “allocution.” The defendant had to be asked on the record whether he wanted to plead guilty. He had to answer “Yes.” He was then asked whether he understood that he was giving up various constitutional rights, including the right to a trial, by pleading guilty. He had to answer “Yes.” He would then be asked whether he had been forced or coerced to plead guilty or whether he had been offered any inducement to plead guilty other than the offered plea bargain. He would have to answer “No.” Such an allocution took about a minute, and the defendant would then be led back behind the courtroom. If the plea included immediate release, some paperwork had to be filled out and then he could go. If he had people in court for him, I would go to them and tell them what had happened and where they could go to meet the defendant.

There was an advantage if I had worked with the assistant district attorney and the judge before. If so, I often had a good idea of what a plea offer would be before it was made, and I would have discussed that possibility with the client back in the holding cell before the arraignment so that he could think about an offer before having to make a snap decision in court.

The limited time that an accused had for the important decision of whether to plead guilty bothered me. I was also often disturbed when I was representing multiple defendants and a plea was offered. The prosecutor and judge were dealing partly to get the case over with, and that would require a disposition from all the defendants. If three out of four were willing to plead guilty but not the fourth, the case continued and would take basically the same amount of time in the future as if none had pleaded guilty. Thus, the deal was for all or for none. This presented an ethical dilemma. If the case went on, each defendant would have a separate attorney, but at the arraignment I was representing them all, and this presented a conflict. I was simultaneously the attorney for someone who wanted to plead guilty but could only do so if all pleaded guilty and a person who did not want to plead guilty. A way out of this ethical conflict was to have the case continue so that separate attorneys could be appointed, but that conflicted with the court’s desire to get dispositions at arraignments and the desire of those defendants who wanted the case over immediately. The court never cared about the ethical conflict, and I never found a good way to handle it.

While many cases were plea bargained, defendants often rejected the offered deal. Many other cases were not plea bargained because the charges were too serious to be resolved by a misdemeanor plea. Such cases would live beyond that initial court appearance. Then the proceedings returned to another formal part of the arraignment—the setting of bail, but I will leave that for another day.

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