The ultimate goal of a criminal defense is a not-guilty verdict at trial. This outcome completely vindicates the defendant. But less than 5 percent of criminal cases go to trial in Cobb County. Plea bargains, or out-of-court settlements, resolve nearly all the rest. Frequently, these plea bargains mean reduced direct or collateral consequences. If a not-guilty verdict is impossible, reduced consequences are usually the next best thing.
Assaults, one of the most common criminal cases in Georgia, exemplify these direct and collateral consequences. Few defendants do jail or prison time, unless they have lengthy criminal records. But an assault conviction usually means at least several months of intense court supervision. Additionally, these convictions often have significant collateral consequences. A domestic violence conviction adversely affects any future divorce or other family law case. Among noncitizens, an assault conviction could prompt deportation or removal proceedings.
Even though very few cases go to trial, a Marietta criminal defense attorney must always prepare as if the matter will go all the way. The following resolutions are available, but they are by no means guaranteed. So, it’s not enough to be a good litigator. The best Marietta criminal defense lawyers are also good negotiators in all situations. Frequently, a tough, hardline negotiation posture produces the best results. Other times, you catch more flies with honey than you catch with vinegar.
Charge Reduction
We mentioned assault as an example of direct and collateral consequences. Charge reduction plea bargains are quite common in assault cases. That’s because there are three levels of assault in Georgia: felony, gross misdemeanor, and simple misdemeanor (basically a traffic ticket level).
Here’s a typical scenario. Assume Pablo breaks several of Raul’s bones in a fight. Most likely, aggressive prosecutors would charge Pablo with felony assault. But Raul is uncooperative. If his testimony is unavailable, the state’s case would most likely fall apart. Since the evidence is weak, prosecutors might reduce the felony charges to misdemeanor charges.
Incidentally, assault victims cannot “drop” cases in criminal court. As far as the state is concerned, they are material witnesses. So, if they refuse to voluntarily cooperate, prosecutors could subpoena them and force them to testify against their will. But that only happens in rare instances.
Other frequent charge reduction plea bargain matters include sex crimes, drug cases, and DUIs. Like assaults, most sex crime offenses hinge on an alleged victim’s testimony. As for the other matters, if the evidence is weak, prosecutors often reduce drug trafficking to drug possession and DUI to reckless driving.
Pretrial Diversion
Frequently, the evidence is not weak enough for a charge reduction plea bargain. But it is weak enough for pretrial diversion. For example, perhaps Raul is cooperative, but he has moved out of Cobb County. Normally, pretrial diversion is available in these situations. That’s especially true if the defendant is charged with a nonviolent crime, like drug possession or simple DUI.
Eligibility requirements vary. In some jurisdictions, defendants meet with pretrial services officers who determine if pretrial diversion is appropriate. In other places, prosecutors control this process. Regardless, the state always has the final say in terms of eligibility.
Program requirements vary as well. Generally, these programs last a few weeks, during which time defendants must avoid rearrest. Defendants must jump through some other hoops as well. Common ones include paying restitution, attending a victim impact panel, completing a counselling class, and performing community service.
If the defendant qualifies and successfully completes the program, prosecutors dismiss the case, and that is that.
Deferred Disposition
In terms of the final outcome, deferred disposition is a lot like pretrial diversion. But instead of a prosecutorial dismissal, the judge dismisses the case. And, instead of a brief, informal program, defendants must complete probation.
Both deferred disposition and pretrial diversion take care of the conviction record. But they do not address the arrest record. This issue normally does not come up, since most people only care about conviction records. Expungement, sealing, and executive pardon are usually the only way to erase an arrest from a permanent record.
Procedurally, the defendant pleads no contest or guilty, and the judge places the defendant on probation. Common conditions include reporting to a probation officer, attending court-ordered counselling sessions, and staying out of trouble with the law.
If the defendant successfully completes probation, which is different from perfectly completing probation, the judge dismisses the case.
Expungement
On January 1, 2021, the law changed significantly in this area. Before Senate Bill 288, expungement was largely unavailable in Georgia. Today, most people can expunge up to two misdemeanors and an unlimited number of felonies.
The misdemeanor expungement process is rather straightforward. Defendants may apply for expungement four years after they finish their sentences. Judges must grant these petitions if the defendant has no criminal convictions in that time period and faces no pending cases.
Felonies are more complex. Judges may grant expunction petitions if the State Board of Pardons and Paroles issued a pardon. In most cases, the minimum requirements are:
- Five years from sentence completion date,
- Defendant has “lived a law-abiding life” during this period,
- No pending charges, and
- All restitution and fines paid.
Judges usually, but do not always, expunge criminal records if the defendant has been pardoned. Basically, expungement means the elimination of the arrest and conviction from all law enforcement, judicial, and other official records.
Executive Pardon
This relief has the same effect as expungement, and there are no eligibility rules or waiting periods. Furthermore, obtaining an executive pardon is easier than you might think.
Occasionally, a pardon is a matter of political favoritism. But much more commonly, governors grant pardons if the applicant’s situation is consistent with the governor’s political agenda. Former President Barak Obama is a good example. Obama pardoned thousands of drug offenders who were sentenced under the harsh laws enacted in the 1980s.
So, presentation is important. Timing is important as well. Lame-duck governors who are on their way out the door are more likely to grant pardons than governors who would face media scrutiny.
Criminal cases do not necessarily stain your permanent record forever. For a free consultation with an experienced criminal law attorney in Marietta, contact The Phillips Law Firm, LLC. Virtual, after-hours, and jail visits are available.
Jail Release Basics in Cobb County