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Michael Cohen Pled Guilty In NY Federal Court


Under the terms of an agreement with federal prosecutors, the former Trump attorney could spend up to five years in prison.

According to court documents, Cohen concealed two payments to women who allegedly had affairs with then-candidate Donald Trump. These payments amounted to some $280,000. In total, Mr. Cohen pleaded guilty to eight counts, including making a false statement to a financial institution, tax evasion, and campaign finance violations.

Deputy U.S. attorney Robert Khuzami insisted that the case is about “justice, and that is an equal playing field for all persons in the eyes of the law.” Others believe that the plea may represent the criminalization of immoral conduct, and these are two separate matters.

Plea Agreements

The U.S. Constitution says almost nothing about plea agreements. During the late 1700s, criminal trials resolved almost all criminal cases. In fact, English law essentially prohibited plea bargains at the time, due to concerns that such arrangements may not effectively administer justice.

Despite these misgivings, plea bargaining soon gained favor, especially after the Civil War. By that time, the country had expanded so much that the criminal courts could no longer guarantee trials for everyone. The only alternative was to expand the system significantly, and no one wanted to invest the money required to do so.

By around 1930, plea bargaining was an integral part of the criminal justice process. These agreements resolved over 90 percent of criminal cases. Still, the Supreme Court issues no guidelines in this area until 1970’s Brady v. United States. Even then, the rules were quite vague and gave prosecutors considerable discretion.

Trials are extremely uncertain. There is just no way to accurately predict what will happen based on things like the strength of the evidence. For example, a lone holdout juror can turn a slam-dunk case into a mistrial.

Given that uncertainty, prosecutors are often anxious to resolve cases through plea bargaining. If the evidence is weak, their incentive is even greater. Other times, there are procedural errors in the case, and the only way to correct them is to start afresh. Most prosecutors don’t want to do that.

In addition to the uncertainty of trials, defendants usually have incentive as well. Depending on the case, that incentive usually includes:

  • Reduced Charges: This incentive is especially prevalent in federal court. Prosecutors can come to an agreement with a plea being entered on an information, and thus select the charge with the guideline that will give the defendant the closest sentence parameters to what is agreed to. They can voluntarily dismiss other charges. Once there is an indictment, there may be a lesser offence in the indictment the parties can agree too. In federal court, there are still sentencing guidelines but they are no longer considered mandatory but my experience is they are still generally followed. In state court, the example usually given is that a defendant can plead from a murder to manslaughter charge.
  • Lower Sentence: In many cases, the offered sentence may only be a fraction of the maximum sentence. Alternative plea agreements that may result in no conviction, such as pretrial diversion and deferred adjudication, may be available as well.

An important note here. It is very, very difficult to overturn plea agreements on appeal. So, before the defendant signs on the dotted line, the defendant needs to be sure that the offer is as good as it will get.



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