At the first court setting, the prosecutor hands over an offer. It is often the default for that charge — probation, a fine, a class — and many people take it just to be done. Former Felony Chief Brian Foley explains in this video why that is usually the worst moment to accept.
The first offer is made blind
When the offer is extended, the prosecutor typically has the offense report and the charging document. They have not watched the body-camera footage, read the lab report, interviewed the complainant, or checked whether the officer's account matches the video. The offer reflects the charge, not the evidence.
What moves the number
- Discovery. Once the defense obtains the video, the 911 audio, and the lab data, the weaknesses become concrete — and get pointed out to the prosecutor.
- Motions. A motion to suppress a bad stop or a defective warrant forces the State to defend its evidence at a hearing it may lose.
- Mitigation. Documentation of treatment, employment, education, and community support gives the prosecutor a reason to reduce.
- A trial date. Nothing improves an offer like the credible prospect of losing at trial.
When the first offer is right
Occasionally the initial offer is a pretrial diversion or a dismissal-track program that will not be available later — and a good lawyer will tell you to take it. The point is not to reject every first offer; it is to evaluate it with the evidence in hand and the alternatives understood.
Brian Foley and Luis Baez made these offers as prosecutors. They know what the State will move on and what it will not. Call or text (713) 703-1718 before you accept anything.