Facebook pixel Mercy Skip to main content
Pepperdine | Caruso School of Law


By Troy Tessem

"What did he say?"

"He has refused the deal."

"He said no?"

"Yes. The negotiation has failed."

"Does he realize that by rejecting this offer he will go to trial? Does he understand that the prosecution will win and that the maximum sentence he can receive is death or life in prison?"

"Yes, but he thinks his sentence should be four years."

"Okay…I guess you can tell him that he can leave."

And that is how the accused's plea bargain failed. The "He" in this dialogue was a man accused of defilement. He had raped a girl younger than 18 years old and the evidence was stacked against him. The girl had testified against him. Her uncle had caught the accused in the act. Medical records showed that the girl had been defiled. If the prosecution took the case to court there was no doubt that the accused would be convicted. But the prosecution wanted to try and avoid the trial costs—the financial costs, the time costs, and the pain of the victim in reliving the crime at trial. In addition, the prosecution was dealing with a backlog of cases that amounted to a delay of three to five years. The prison, which was built for 300 people, was housing over 1,000 people. So, the prosecution was willing to lower the accused's sentence if he would plead guilty and help them avoid trial.

The prosecution's initial offer was 20 years. This may seem like a high offer, but consider that the starting point for this crime is 30 years in prison with a maximum penalty of death. Simply put, this was already a merciful offer.

In response, I along with the defense attorneys analyzed the aggravating and mitigating circumstances surrounding the crime. Then, through negotiation and the process of plea bargaining, we were able to get the prosecution to agree to a sentence of 12 years for our client—an amazing offer given the crime. And yet, somehow, we were still struggling to convince the accused to take the offer. Even though he had admitted to committing the crime and even though he professed to be sorry for what he had done, he would still not take the deal. Even after being told repeatedly that by going to trial it was likely he would be sentenced to life in prison, he still would not take the deal. So, he walked away.

Frankly, I am still dumbfounded by what happened. Not only because this man refused to take the deal, but also because his story was not unique. I met with several clients who committed similar crimes but refused to take a generous offer. Why? I'm not sure, but I did notice one factor which seemed to be consistent. When we asked them if they were sorry for what they had done, they would invariably say "Yes, I am remorseful," but their body language, their demeanor, and how they explained what had happened spoke volumes. They were not really sorry.

Conversely, I met with many other clients who were sorry for what they had done. Their statements were consistent with the prosecution's evidence. Their demeanor was humble and their body language conveyed a desire for mercy—any mercy at all. In the end, these clients received mercy. But their mercy did not necessarily come in the form of lower sentences. No, often the sentences for these individuals were the same or higher than the story mentioned above. Nevertheless, mercy came because the accused recognized the gravity of the crime they had committed and the gravity of the sentence that justice dictated they deserved. They comprehended the difference between life in prison and 12 years in prison. Then, in that awareness, they received mercy by accepting the lower sentence. I guess that may be the difference between these two groups of people—one put aside their own stubbornness and chose to receive mercy.

I hope I would do the same.