South Carolina Criminal Attorney Blog

The short answer is, Yes. We all know that things such as weak evidence, possible defenses, questionable witnesses, various legal issues, and so forth can prompt the prosecutor to reduce a criminal charge. But don't limit yourself. There's sometimes other and rather novel approaches to this. This is best illustrated by sharing an experience I just had this week. The following summarizes how an attorney can sometimes go with the less common approach.

The judge just grinned and the prosecutor came right out and laughed. That is how ridiculous they both thought the idea of probation was when the prosecutor told the judge at the bench prior to the sentencing hearing that the attorney was going to ask the judge to give his two clients probation when they were arrested for Trafficing.

Just before the guilty plea hearing started, the prosecutor and myself decided we should approach the bench (off the record), and give him the heads-up on why the Charge of Trafficing Cocaine was being reduced to Possession with Intent to Distribute. That is next to never done, which is exactly why the prosecutor was laughing when he told the judge at the bench what I was going to ask for.

Here is what happened. I represented a husband and wife. He was 64 and she was 57. They were both charged with Trafficing Cocaine out of their home. It was enough cocaine that there was a mandatory minimum sentence of seven years, on a 7 to 25 year charge. After they hired me I looked at the discovery and it was a text book arrest. Everything from the surveillance to the search warrant to the Miranda to the preliminary hearing. My point is that there was no wiggle room as there was no defense whatsoever. This would have been a slam dunk for the prosecutor if taken to trial.

The prosecutor offered my clients the minimum of seven years. Although that is the lowest they could have received for that particular charge under the law, its still hard to accept. Seven years is a very long time in prison when you are convinced that your client's have learned their lesson and will never be arrested again. And that was how I felt.

Every time my clients would come into my office, the husband would be carrying an oxygen tank that every couple seconds would make this hissing sound that I couldn't stand. And the wife was so thin she looked like she just got run over by one of the machines that smooths out new pavement. So I started asking about their health. Come to find out that he had seven heart attacks, was a diabetic and had some disease in which he was in the "last stage" of. I didn't understand the disease, but I did understand how awful the term, "last stage" sounded. When I asked her, she replied with 3 or 4 medical terms that I sill cannot pronounce. So what I did was I asked them both to go their doctor and have the doctor write me a letter outlining how poor their health was.

I then sent the doctor's letters to the prosecutor on the case and I explained that not only was there almost a total lack of a criminal record, and one was 64 and one was 57, and in my humble opinion it was likely that at least half of the husband and wife team would not outlive a seven year prison sentence. And based on that, would they consider reducing the charge to something lessor that did not carry a minimum sentence.

Much to my surprise, in fact the only time I have ever heard of such a thing, about a week later I received a letter from the solicitor who explained that he took my letter to his boss and his boss gave him permission to reduce their charges to Possession with Intent to Distribute, which did not carry a minimum sentence. He went on to explain that my client could plead to this, but that he was still going to request that they get seven years. They call this a "substantial departure." So when we were at the judge's bench explaining what was going on, that is when the judge grinned and the solicitor laughed. In all honesty, I didn't fault the solicitor for finding it funny. Having a judge give a defendant probation who was arrested for the most serious drug dealing statute on the books, is kind of funny when you stop to think about how remote the chances are.

About 20 minutes later, the solicitor wasn't laughing anymore. The hearing was over and I had explained that only one of them had a prior arrest and it was only one arrest and it was 14 long years ago, and the two defendants were 64 and 57, and just how terrible their health was, and what a shame it would be if one of them died in prison for this, and how I was convinced that these two would never see the inside of a courtroom again if you give them probation, and we could in fact have justice if they were put on probation, the judge did just that.

I take my hat off to the solicitor and to his boss that gave the approval for reducing the charge. That is not something that they normally do and they were under no requirement to do such a thing whatsoever. I was quite impressed with their sense of fairness and compassion.

So I suppose that the moral of the story is that the evidence, the defendant's record, possible defenses, and so forth, although it the typical and common basis for seeking a reduction in the charges, is not the only basis of negotiations and requests for a reduction. Never limit yourself and don't be afraid of being creative. Its certainly can worth a try.