View Full Version : If you are going to trial..can you change attorneys?


Confused8
02-07-2009, 11:20 PM
I want to know if during the bargaining the offers that the DA/Judge offers is not good and your current attorney has not gotten you a good deal ...can you switch attorneys to represent you again and go into trial? and is it a good ideal to switch attorneys since the new attorney would have to read up on things and this would prolong the court date.

Gryphon
02-08-2009, 12:30 AM
Yes you can.
It might be a great idea, it might be a horrible idea. Talk to the present attorney about it to get an informed read on the situation. I can say that it is unusual for a lawyer change to do a lot regarding a pretrial offer. The prosecutor is forming an offer based on the evidence and your rap sheet, not who the lawyer happens to be. On the other hand, a different lawyer might bring a fresh perspective or a different defense to the table. Some lawyers are stronger at doing social work that prepares for sentencing; others are better motion writers.
If the case is close to trial, the trial date may stick. A lawyer change perceived as a continuance tactic is often frowned on, and a continuance can be denied.
I want to know if during the bargaining the offers that the DA/Judge offers is not good and your current attorney has not gotten you a good deal ...can you switch attorneys to represent you again and go into trial? and is it a good ideal to switch attorneys since the new attorney would have to read up on things and this would prolong the court date.

Confused8
02-08-2009, 10:30 AM
What you say makes sense that's why I'm afraid to bring a new lawyer in for the trial part since I might not get a continuance and the court may frown upon it. Also, I don't know what my current attorney would feel about it.

I just don't get a feel that we are going to get a good deal and want to be prepared to make that change if it becomes necessary.

Thanks!

Mark2008
02-08-2009, 09:44 PM
If you are paying the piper, you get to call the shots. If you have a public defender, not so much.

RobinsMan
02-09-2009, 03:43 PM
A lawyer change certainly can make a difference depending on the attorneys in question. Some attorney's are well know for either never going to trial or being a pushover in court. Others are at the opposite end of that spectrum. Along with their feelings about their chances to win at trial based upon the case the DA will definitely consider who will be their opponent as they go about their business. I did it once after finding that the attorney I hired was a complete waste of time and money and the change in behavior by the DA's office was quite dramatic.

I believe that you will never get a non-biased, objective opinion if you ask your attorney if you should fire him and hire someone else. Actually, my guess is that he'll probably tell you in a heartbeat that it is fine with them since they have already collected their fee and will galdly do no more work for it. If you are going to fire your attorney then I wouldn't even tell him about it. Well, unless you just feel the need to do so. You can let the new attorney notify him and file the necessary paperwork and motion in court.

djsmom
02-09-2009, 04:47 PM
we changed attorneys hours before trial was to start. but we had plea offers previously. i wholeheartedly agree with everything robinsman said. for all the reasons he said.
and our DA was really pissed,especially when he saw the new attorney was someone from out of town,that he did not know at all. did it help? on the surface,it may seem no....but in my heart i believe it did. the one big difference was my son was found not guilty on a gun charge they added at the last minute. i have no confidence that that would have happened with the old piece of crap.

Confused8
02-09-2009, 06:27 PM
we changed attorneys hours before trial was to start. but we had plea offers previously. i wholeheartedly agree with everything robinsman said. for all the reasons he said.
and our DA was really pissed,especially when he saw the new attorney was someone from out of town,that he did not know at all. did it help? on the surface,it may seem no....but in my heart i believe it did. the one big difference was my son was found not guilty on a gun charge they added at the last minute. i have no confidence that that would have happened with the old piece of crap.


I am told that if you don't accept their pleas and go to trial and lose...you get a harder sentence and no more plea bargain. Is that true? Did they offer you any other pleas before the trial?

Albee Damned
02-09-2009, 07:11 PM
I am told that if you don't accept their pleas and go to trial and lose...you get a harder sentence and no more plea bargain. Is that true? Did they offer you any other pleas before the trial?

First of all, once you are CONVICTED AT TRIAL, there is no more plea opportunity! There is a risk you will get a harsher sentence, but sometimes that isn't true. It depends on the deal you were offerred. You just have to use your best judgement and weigh all the factors, which isn't easy.

The sentencing laws in California are MUCH different than any other state. California is the ONLY state in the US that has DETERMINATE sentencing. Therefore, it is pretty easy to predict a sentence if convicted. This helps you form an idea of what should be a good deal and what isn't.

In the other states, which use INDETERMINATE sentencing, the judge has a lot more discretion with sentencing. A crime may hold a sentence of 2-10 years and the judge decides what amount of time you get. Therefore evaluating deals is more difficult (in my opinion).

With California's DETERMINATE sentencing, most crimes have 3 stipulated possibilities, like 2, 4, or 6 years in the case of 1st degree burglary (CA PC 459/460). These are known as the lower, middle, and upper terms. Usually you get the middle. If there are factors in aggravation you might get the upper, whereas mitigating factors may result in the lower term. If the middle term is not given, the judge must state the reason on the court record.

Additionally, when convicted on multiple charges and sentenced CONSECUTIVELY, California sentencing law has what is known as an aggregate term limitation. With this, the most serious charge is known as the principal charge, and the rest are known as subordinate charges. IF SENTENCED CONSECUTIVELY, the most time you can get is the sentence for the principal charge plus 1/3 of the sum of the middle terms for the subordinate charges. If the charges all stem from the same "incident", there is a good chance you will be sentenced CONCURRENTLY and only have to do the time for the principal (most serious) charge.

So let's look at an example:

Let's say I pull a home invasion burglary and assault two people in the household with a knife, harming both. At trial I am found guilty of 1 count of 1st degree burglary and 2 counts of felony assault with a deadly weapon (ADW). The burglary 1 carries 2, 4, or 6 years in the state prison, while the felony ADW carries 2, 3, or 4 years per charge. You might think that I am facing 14 years maximum (6 + 4 + 4), but that is incorrect. My maximum sentence is really (6 years for the burglary 1) + ( 1/3 times ( 3 years + 3 years)) = 8 years. That is the MAXIMUM and depends on getting the upper term for the principal charge. You might get away with as little as 2 years in this case if the judge decided to sentence you concurrently and use the lower term for the principal (burglary) charge (highly unlikely, though).

So the bottom line is that if the DA wants to plea you out to 1st degree burglary and drop the AWD charges with a guarantee of 4 years instead of 6, you were only facing a MAXIMUM of 8 to begin with. But being convicted on all 3 charges would give you 3 strikes, which could SERIOUSLY haunt you in the future. 8 years max and 3 strikes if convicted at trial, or 4 years guaranteed and 1 strike with a plea? Good deal or bad deal, it depends on their case against you.

Either way, in California it is pretty easy to figure what you are facing in most cases. Aggregate term limitation sentencing does change if the defendant has previous strike convictions, and with some sex crimes regardless. Let's hope that neither of these situations concern you!

Good luck with the outcome of your case!

Albee