# Plea deals and double jeopardy: lawyer question.. **URL:** \ **Category:** Factual Questions\ **Created:** [January 29, 2013, 10:55pm UTC](https://boards.straightdope.com/t/plea-deals-and-double-jeopardy-lawyer-question/648750 "2013-01-29T22:55:45Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 29, 2013, 10:55pm UTC](https://boards.straightdope.com/t/plea-deals-and-double-jeopardy-lawyer-question/648750/1 "2013-01-29T22:55:45Z")
I promise this isn’t homework. 🙂 Let’s say that a man is charged with nine counts of mopery. He enters a plea deal where he pleads guilty to one count and the prosecution dismisses the other eight counts with prejudice. The man then claims that his guilty plea was coerced and files a habeas petition to overturn his conviction. He wins and gets a new trial. Did he violate his plea deal? Can the prosecution bring the original 9 counts or did they forever bar themselves from prosecuting the other eight? ---
**Author:** ![deltasigma](https://avatars.discourse-cdn.com/v4/letter/d/e5b9ba/32.png) [@deltasigma](https://boards.straightdope.com/u/deltasigma)\ **Post date:** [January 29, 2013, 11:44pm UTC](https://boards.straightdope.com/t/plea-deals-and-double-jeopardy-lawyer-question/648750/2 "2013-01-29T23:44:45Z")
I really have no idea since this isn’t the sort of case I usually ran into. But I’m a big believer in the idea that understanding the basic principles can take you pretty far, so let’s see how well that works here. The essence of any agreement is assent. So the essential element in a plea deal is assenting to an admission of guilt. However one of the factors that will negate assent is duress. Putting that aside for a moment, what about the 8 dependent cases. Regardless of the dismissal w/ prejudice, these are part of the agreement and I think would have to stand or fall with it (or vice-versa?). In a situation like this, I think that will be regarded as a procedural technicality and ignored. So to my mind, the only real issue is the one guilty plea that the deal is based on. So when that plea is vitiated, the entire deal would be void ab initio or essentially as if it never happened and everyone would be back at square one with 9 counts of mopery. ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [January 29, 2013, 11:46pm UTC](https://boards.straightdope.com/t/plea-deals-and-double-jeopardy-lawyer-question/648750/3 "2013-01-29T23:46:14Z")
My understanding is that one generally gives up the right to appeal when making a plea deal. ---
**Author:** ![gms453](https://avatars.discourse-cdn.com/v4/letter/g/50afbb/32.png) [@gms453](https://boards.straightdope.com/u/gms453)\ **Post date:** [January 29, 2013, 11:51pm UTC](https://boards.straightdope.com/t/plea-deals-and-double-jeopardy-lawyer-question/648750/4 "2013-01-29T23:51:36Z")
No; he caused it to be nullified. In PA, it can. Contrary to popular belief, defendants almost never “beat the rap” on technicalities or tricks such as the one posited by the OP. The law is not nearly the ass TV, novel authors and Hollywood make it out to be. ---
**Author:** ![deltasigma](https://avatars.discourse-cdn.com/v4/letter/d/e5b9ba/32.png) [@deltasigma](https://boards.straightdope.com/u/deltasigma)\ **Post date:** [January 30, 2013, 12:06am UTC](https://boards.straightdope.com/t/plea-deals-and-double-jeopardy-lawyer-question/648750/5 "2013-01-30T00:06:00Z")
> [@friedo](#): > > My understanding is that one generally gives up the right to appeal when making a plea deal. I don’t recall ever having dealt with it so I needed a wiki refresher. Habeus corpus is a federal civil (apparently) procedure that allows prisoners to do an end run around state law basically. However the sorts of things they can challenge are pretty sparse as I recall. I think you’re talking things like due process and really basic constitutional rights. [Here’s the link.](http://en.wikipedia.org/wiki/Habeas_corpus_in_the_United_States) ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 30, 2013, 12:12am UTC](https://boards.straightdope.com/t/plea-deals-and-double-jeopardy-lawyer-question/648750/6 "2013-01-30T00:12:44Z")
> [@gms453](#): > > No; he caused it to be nullified. In PA, it can. Contrary to popular belief, defendants almost never “beat the rap” on technicalities or tricks such as the one posited by the OP. The law is not nearly the ass TV, novel authors and Hollywood make it out to be. I think this is absolutely right. It seems as it ought to be absolutely right. Maybe since the court never ruled on the merits that jeopardy didn’t attach? Or that dismissal w/prejudice was conditioned on his guilty plea? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 30, 2013, 12:13am UTC](https://boards.straightdope.com/t/plea-deals-and-double-jeopardy-lawyer-question/648750/7 "2013-01-30T00:13:48Z")
> [@deltasigma](#): > > Habeus corpus is a federal civil (apparently) procedure \*snip Many (all?) states also have their own habeas processes. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [January 30, 2013, 12:15am UTC](https://boards.straightdope.com/t/plea-deals-and-double-jeopardy-lawyer-question/648750/8 "2013-01-30T00:15:05Z")
> [@friedo](#): > > My understanding is that one generally gives up the right to appeal when making a plea deal. Except you can appeal whether the plea was voluntary. The Judge spends a lot of time when taking a plea making a record on how voluntary it is, so you almost never see an appeal. To the OP, I had one client who filed a motion to withdraw his plea after the prosecution dropped a bunch of charges. They said, “Fine, but we’re going forward on everything and you’re looking a life in prison.” He dropped his appeal, so I don’t know how it would have played out. ---
**Author:** ![deltasigma](https://avatars.discourse-cdn.com/v4/letter/d/e5b9ba/32.png) [@deltasigma](https://boards.straightdope.com/u/deltasigma)\ **Post date:** [January 30, 2013, 12:27am UTC](https://boards.straightdope.com/t/plea-deals-and-double-jeopardy-lawyer-question/648750/9 "2013-01-30T00:27:22Z")
> [@jtgain](#): > > I think this is absolutely right. It seems as it ought to be absolutely right. Maybe since the court never ruled on the merits that jeopardy didn’t attach? Or that dismissal w/prejudice was conditioned on his guilty plea? When something is void ab initio, if that is in fact the situation in your hypothetical, then there was never any chance for jeopardy to attach. They tend to mean that ‘ab initio’ bit pretty literally. Maybe not Doctor Who literally, but . . . getting there. ---
**Author:** ![denquixote](https://avatars.discourse-cdn.com/v4/letter/d/b9bd4f/32.png) [@denquixote](https://boards.straightdope.com/u/denquixote)\ **Post date:** [January 31, 2013, 7:19am UTC](https://boards.straightdope.com/t/plea-deals-and-double-jeopardy-lawyer-question/648750/10 "2013-01-31T07:19:14Z")
I cannot imagine a negotiated plea being appealed after the judge has ascertained the voluntariness in court. ---
**Author:** ![FrankJBN](https://avatars.discourse-cdn.com/v4/letter/f/f0a364/32.png) [@FrankJBN](https://boards.straightdope.com/u/FrankJBN)\ **Post date:** [January 31, 2013, 3:46pm UTC](https://boards.straightdope.com/t/plea-deals-and-double-jeopardy-lawyer-question/648750/11 "2013-01-31T15:46:42Z")
" one generally gives up the right to appeal when making a plea deal. " A habeus corpus argument, or in the states a plea for post conviction relief, is not strictly an appeal. These are very common post negotiated pleas. “cannot imagine a negotiated plea being appealed after the judge has ascertained the voluntariness in court” thing is, it isn’t the judge making the appeal. To make a winning appeal is a different thing, but certainly appellants will be glad to say I"I didn’t understand’ after stating to the judge in open court “I fully understand.” ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [January 31, 2013, 4:41pm UTC](https://boards.straightdope.com/t/plea-deals-and-double-jeopardy-lawyer-question/648750/12 "2013-01-31T16:41:31Z")
> [@jtgain](#): > > The man then claims that his guilty plea was coerced … Isn’t this basically the essence of a plea deal - take it or else? Or, like Schwarz (6 months or 50 years?), you could commit suicide. Why would the other 8 be dismised with prejudice; the whole point of enforcing the deal is that “if you renege, we can hit you with the rest of the charges”. Someone mentioned in an earlier thread, that once a jury has been empanelled and the case starts, then double jeopardy kicks in. If the case ends for any reason other than hung jury, it cannot be refiled? (Except retrial of guilty verdict on appeal) ---
**Author:** ![FrankJBN](https://avatars.discourse-cdn.com/v4/letter/f/f0a364/32.png) [@FrankJBN](https://boards.straightdope.com/u/FrankJBN)\ **Post date:** [January 31, 2013, 6:16pm UTC](https://boards.straightdope.com/t/plea-deals-and-double-jeopardy-lawyer-question/648750/13 "2013-01-31T18:16:28Z")
“If the case ends for any reason other than hung jury, it cannot be refiled?” Not so. certainly a mistrial can be declared for a variety of reasons one of which might be juror misconduct tainting the panel. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 31, 2013, 6:22pm UTC](https://boards.straightdope.com/t/plea-deals-and-double-jeopardy-lawyer-question/648750/14 "2013-01-31T18:22:50Z")
> [@FrankJBN](#): > > A habeus corpus argument, or in the states a plea for post conviction relief, is not strictly an appeal. These are very common post negotiated pleas. I know that you are not my lawyer, etc., but in your opinion do these “common” habeas petitions void the initial plea deal? In other words, just by filing the habeas, successful or not, I could see the prosecution bringing the other 8 mopery charges by saying, “Hey, that dismissal was contingent on our deal. You are now challenging our deal in court saying that you were coerced. Therefore, we no longer have a deal.” ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [January 31, 2013, 6:26pm UTC](https://boards.straightdope.com/t/plea-deals-and-double-jeopardy-lawyer-question/648750/15 "2013-01-31T18:26:39Z")
> [@jtgain](#): > > Did he violate his plea deal? Can the prosecution bring the original 9 counts or did they forever bar themselves from prosecuting the other eight? My (possibly wrong) understanding was that plea deals aren’t legally binding in any way. There isn’t any legal bar to a prosecutor promising to drop charges, having the defendent fulfill his side of the bargain and then reneging and going ahead with the other charges. The reason they don’t do that is that it would only work once, and then every lawyer would tell their clients not to make plea-deals. ETA: googling, it looks like there are two different types of deals, one of which is legally binding. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 31, 2013, 6:46pm UTC](https://boards.straightdope.com/t/plea-deals-and-double-jeopardy-lawyer-question/648750/16 "2013-01-31T18:46:30Z")
> [@Simplicio](#): > > My (possibly wrong) understanding was that plea deals aren’t legally binding in any way. There isn’t any legal bar to a prosecutor promising to drop charges, having the defendent fulfill his side of the bargain and then reneging and going ahead with the other charges. > > The reason they don’t do that is that it would only work once, and then every lawyer would tell their clients not to make plea-deals. > > ETA: googling, it looks like there are two different types of deals, one of which is legally binding. From my (very limited; I am a law student) understanding it usually works like this: A plea deal is drawn in the form of a contract with the terms specified (e.g. Defendant pleads guilty to one count of mopery, Prosecution agrees to dismiss with prejudice 8 counts of mopery and hereby does so; sentence is left up to the judge, but the Prosecution agrees to recommend 3 to 5 years, etc.). The judge then reads the plea deal and agrees or disagrees. If he agrees, then he asks the Defendant his plea. (Guilty, your honor. \) Then he asks the Prosecution if it is satisfied with the plea. Yes, check. Yes, check. Plea deal is ratified. Defendant is adjudicated guilty of one count of mopery. Eight counts dismissed with prejudice. Sentencing will be 3 months from now…etc. Is there a different way of doing it in other states? ETA: There is a lot of “middle, middle, middle” in there. Usually asking the Defendant if he understands everything, but it’s basically the outline I gave. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 31, 2013, 6:59pm UTC](https://boards.straightdope.com/t/plea-deals-and-double-jeopardy-lawyer-question/648750/17 "2013-01-31T18:59:11Z")
> [@jtgain](#): > > From my (very limited; I am a law student) understanding it usually works like this: A plea deal is drawn in the form of a contract with the terms specified (e.g. Defendant pleads guilty to one count of mopery, Prosecution agrees to dismiss with prejudice 8 counts of mopery and hereby does so; sentence is left up to the judge, but the Prosecution agrees to recommend 3 to 5 years, etc.). The prosecution agrees that the state _will_ dismiss the remaining counts. Dismissal need not be contemporaneous. Beides that, it’s been tried: > [@](#): > > I will deny Abuhouran’s habeas petition for the following three reasons: (1) Abuhouran waived the right to collaterally attack his conviction and sentence in the Plea Agreement; (2) Abuhouran’s habeas petition is untimely; and (3) the Booker case does not apply retroactively to habeas petitions.A. Abuhouran Waived the Right to Collaterally Attack His Conviction and Sentence By Signing the Plea Agreement.First, I find that Abuhouran has waived the right to collaterally attack his conviction. Waivers of appeals are strictly construed by the Third Circuit. United States v. Khattak, 273 F.3d 557, 563 (3d Cir.2001). Waivers of appeals are generally permissible “if entered into knowingly and voluntarily, unless there is a miscarriage of justice.” Id. at 563. To determine whether there has been a miscarriage of justice, district courts will consider “the clarity of the error, its gravity, its character … the impact of the error on the defendant, the impact of correcting the error on the government, and the extent to which the defendant acquiesced in the result.” Id. at 573 (adopting the case-by-case approach for determining a miscarriage of justice established in United States v. Teeter, 257 F.3d 14, 26 (1st Cir.2001)). While the Third Circuit has not directly addressed the issue of waiver of the right to collateral attack, other courts in the Eastern District of Pennsylvania have held that the Khattak rule should apply to a waiver of the right to collaterally attack a federally-imposed conviction. See, e.g., United States v. Chancley, Civ. A. No. 04-4902, 2006 WL 463389, at \*4 (E.D.Pa. Feb.23, 2006). See also United States v. Fagan, Civ. A. No. 04-2176, 2004 WL 2577553, at \*3 (E.D.Pa. Oct.4, 2004); United States v. Robinson, Civ. A. No. 04-884, 2004 WL 1169112, at \*9-10 (E.D.Pa. April 30, 2004). > > United States v. Abuhouran, CIV.A.01CR00629-01, 2006 WL 759687 (E.D. Pa. 2006) ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 31, 2013, 7:01pm UTC](https://boards.straightdope.com/t/plea-deals-and-double-jeopardy-lawyer-question/648750/18 "2013-01-31T19:01:01Z")
> [@Simplicio](#): > > My (possibly wrong) understanding was that plea deals aren’t legally binding in any way. This depends a bit on the procedure in the jurisdiction. Most plea deals are contingent on the court’s determination of the appropriate sentencing range, and thus by definition _cannot_ be binding unless the contingency is met. ---
**Author:** ![gms453](https://avatars.discourse-cdn.com/v4/letter/g/50afbb/32.png) [@gms453](https://boards.straightdope.com/u/gms453)\ **Post date:** [January 31, 2013, 11:45pm UTC](https://boards.straightdope.com/t/plea-deals-and-double-jeopardy-lawyer-question/648750/19 "2013-01-31T23:45:29Z")
> [@Really\_Not\_All\_That\_Bright](#): > > This depends a bit on the procedure in the jurisdiction. Most plea deals are contingent on the court’s determination of the appropriate sentencing range, and thus by definition _cannot_ be binding unless the contingency is met. In PA, the court has the absolute discretion to reject any negotiated plea agreement proposed. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 31, 2013, 11:46pm UTC](https://boards.straightdope.com/t/plea-deals-and-double-jeopardy-lawyer-question/648750/20 "2013-01-31T23:46:52Z")
I think that’s true everywhere. [Next page](https://boards.straightdope.com/t/plea-deals-and-double-jeopardy-lawyer-question/648750.md?page=2)