You may recall that last summer, local politico John McGee was ordered to spend at least 44 days in jail before being eligible for either work release or the Sheriff’s Inmate Labor Detachment. This was not how the sentencing was expected to go. McGee had a plea agreement! A deal!

We lawyers warn our clients that the judge is not bound by the agreement but I have occasionally soft pedaled that truth. After all, a judge going beyond what the parties recommend is extremely rare. When that happens, there is usually a deafening silence followed by the "whiskey, tango, foxtrot" moment. 

It apparently happened that day last July. McGee was to be the beneficiary of a deal that was negotiated by the prosecutor and defense counsel. That deal called for McGee to do five (5) days in jail, not 44 and certainly not 88 as the court ordered. Mr. McGee actually served 44 days before his release, but that result depended upon the good graces of the court and the good actions of the former State Senator. 

Maybe Judge Cawthon had simply had enough of the McGee’s misdeeds, this time while on probation following the mother of all plea agreements for his plea to DUI in 2011. The Court said it was simply making McGee accountable to the same degree any other public servant should be accountable. McGee had promised to obey the law, at least until July when his probation would have ended. 

Actually, the take away here has nothing to do with the pratfalls of Mr. McGee. He has completed his service and done so with dignity. He didn’t go nuts or whine about that unexpected jail sentence.

Just remember this – the Judge is really NOT bound by the plea agreement. He may go above or below the anticipated sentence. Mr. McGee, the prosecutor and defense counsel all expected that Judge Cawthon would follow their recommendation. He didn’t, and McGee was cuffed and lugged away to begin his sentence while he and those around him could only wonder why it hadn’t gone as planned.

I had this happen to me and it hit me and my client hard. The deal called for my client to plead guilty to a felony in exchange for a recommended sentence of 3 years fixed and 5 years indeterminate. He pleaded guilty. The State recommended 3 fixed and 5 indeterminate. I argued my client was much misunderstood, but had done what needed to be done.

The Court imposed a 20 year sentence – 8 years fixed and 12 indeterminate. That was 8 years and four months ago. My client is now out, and he served his time honorably as evidenced by the fact that the parole commission sprung him before topping out at 20 years. But when he arrived in court that morning neither he nor I expected him to leave for an eight year prison term.

My point here is that even the best agreed upon sentencing recommendation may run into a wall. Judges, lawyers and defendants do not always play from the same sheet of music. When this one was over, Mr. McGee served his sentence honorably, and the Court may permitted him to leave jail at 44 days. And nothing here is intended to infer anything about the court or the lawyers. They simply saw it differently. Mr. McGee made decisions and he had to live with them. The same is true in every case.

SuperLawyers not withstanding – there are no guarantees in most plea agreements. 

So what about that plea bargain they have offered you? Or your loved one? Will the judge follow the agreement or not? Find out what you can do to make it more likely you get the benefit of the bargain by checking other posts in this blog on sentencing. You can also start by reading the post just prior to this one on humility!Continue Reading Remember: the Judge is NOT Bound by the Plea Agreement