Plea Agreements in Federal Criminal Cases: the Importance of Getting it in Writing

Criminal cases in federal court, as well as the many state court matters we handle, often are resolved with what many people refer to as a “plea agreement.” Basically, the prosecutor gives the Defendant something in return for a plea of guilty, such as a recommendation for a lower sentence, or an agreement to not bring further charges, or a decision to not charge the Defendant’s company or spouse with other crimes. Just a few hours ago, the United States Court of Appeals here in Atlanta issued an opinion in a federal criminal case which demonstrates, yet again, how important it is to have a defense lawyer who knows the ins and outs of this process. The case is U.S. v. Robertson, and can be found here.

Mr. Robertson seemed to have a life of crime, and was suspected of some robberies. He decided to shorten his sentence, so he agreed to testify against a co-Defendant in order to get a shorter sentence. He claimed that the co-Defendant forced Robertson to do the robbery. The federal prosecutor (who later became a federal Magistrate Judge) got some taped calls demonstrating that Robertson and the co-Defendant were friends, and that there was no “forced” robbery. The prosecutor then retracted the offer of a lower sentence. Robertson and his lawyer then said they had information on two unsolved murders. Here is where it gets murky.

The prosecutor and two FBI agents went to visit with Robertson to discuss the potential information on the two unsolved killings. Robertson’s lawyer was with him during this meeting. Here’s the important part: Apparently, Robertson’s attorney never got anything in writing that set out the ground rules for this discussion. During the meeting, one of the agents mentioned the possibility of getting total immunity for Robertson and putting his family into protective custody.

The deal fell apart, and the prosecutor then indicted Robertson and another man for the same murders Robertson told about. Robertson’s new lawyers argued that he only gave information to the FBI concerning these unsolved crimes based on the promise that he would get immunity. Nor surprisingly, the prosecutor (now a federal Judge himself), denied this. The lawyer did not back up his former client’s claim, it appears. As a result, the Court of Appeals upheld the conviction, ruling that there never was an immunity agreement because there was nothing in writing to back up Robertson’s claim that he believed he was under an immunity agreement.

Entering into plea negotiations is tricky business. None of us is perfect, but all lawyers must remember to try and get as much in writing as possible, so as to protect our clients down the road. Robertson now probably wishes there had been something in writing before he told the FBI that he was involved in two unsolved killings, in that they later prosecuted him by using his own words against him.