What happens after someone is arrested on criminal charges? Who can serve on a grand jury? How does a trial work?

These are just a few of the questions Raleigh County Circuit Court Judge H.L. Kirkpatrick III is answering in a series with The Register-Herald to help the public better understand court procedures.

So far, he has discussed the arrest, initial court appearance, bail, home incarceration, Raleigh Day Report Center, grand jury and arraignments. This week, he will discuss guilty pleas.

Plea bargaining is the disposition of criminal charges by an agreement between the prosecutor and the defendant, Kirkpatrick said, and are always subject to the court’s approval.

“Some folks unfamiliar with the workings of the criminal justice system regard ‘plea bargaining’ as dirty words. I want to explain why this process is not something that is abhorrent.”

He said in the typical plea bargain, the prosecutor will secure a conviction, although it might be to a lesser offense or to fewer charges in the indictment.

The benefit to the defendant is that he or she will not be convicted of the full shot. Essentially, each side gets a “half a loaf.”

“The plea bargain process, more or less, constitutes a sure thing for both the state and the defendant, and reduces the risk of going to trial. As we will discuss in a future installment, a jury trial is an uncertain and unpredictable event.”

Kirkpatrick said without plea bargains, every indictment would be subject to a full-blown trial and the already overburdened criminal justice system would collapse.

In Raleigh County, nearly 300 new indictments are returned by grand juries each year. Each criminal jury trial takes, on average, three to five days.

“We could not possibly try that many criminal trials here every year without having many more judges and prosecutors, as well as substantially more court facilities. We would literally wear juries out.”

Circuit court judges don’t just hear criminal cases — they have heavy dockets of general civil actions, juvenile matters, domestic case appeals and child abuse and neglect cases.

“Plea bargaining is a necessity for judicial economy.”

Kirkpatrick said as many as 90 percent of criminal cases are handled by way of plea agreements.


A guilty plea hearing is a significant proceeding in which the judge must speak directly to the defendant in open court, in the presence of defense counsel. The defendant will be placed under oath and questioned extensively by the judge.

The court will want to make sure that the defendant is competent and not under the influence of drugs or alcohol. The judge will also want to be certain that the defendant fully understands the consequences of the guilty plea in terms of the waiver of important constitutional rights pertaining to a jury trial.

“There will be a discussion of the minimum and maximum penalties provided by law for the crime to which the defendant pleads guilty. Importantly, the judge will want to have the defendant admit to committing all the elements of the crime.”

Kirkpatrick said the guilty plea must be voluntary and not the result of force or threats. If the court accepts the plea agreement, the judge will recite the terms into the record, receive the plea of guilty and adjudge the defendant to be guilty of the crime or crimes encompassed by the plea agreement.

Other types of pleas, aside from guilty, include “not guilty” or “nolo contendere.”

A not guilty plea operates as a legal denial of all the charges in the indictment; whereas, a guilty plea constitutes a judicial confession of guilt.

A “nolo contendere” plea is a “no contest” plea, which means the defendant states he or she does not want to challenge the issue of guilt or innocence. Kirkpatrick said this type of plea might be entered by a defendant in effort to avoid a confession of guilt that could be used against him or her in a subsequent civil lawsuit asking for a money judgment against that defendant.

Another type of plea someone can enter is called a “Kennedy plea,” which Kirkpatrick said has nothing to do with President John F. Kennedy.

The Kennedy plea is derived from the case of Kennedy v. Frazier, a 1987 West Virginia case, which allows a defendant to enter a guilty plea under certain and limited circumstances, even though that defendant is unwilling to admit participation in the crime.

The presiding judge must be careful in these instances to make sure that the defendant fully understands all of his options in the case and voluntarily consents to the possible imposition of a prison or jail sentence, Kirkpatrick said.

If the defendant and counsel intelligently conclude that the defendant’s interests require a guilty plea, and the record supports a finding that a jury would likely convict the defendant at trial, the court can accept the Kennedy plea.

Kirkpatrick said a defendant may want to enter a Kennedy plea ‘”to avoid the possibility of a disastrous outcome at trial and the likelihood of a harsher or higher penalty imposed at sentencing.”

For example, if the state offers to allow the defendant to plead guilty to one charge in a three-count indictment, in exchange for the dismissal of two counts, the defendant may well be interested in accepting the plea, even though the defendant may believe in his or her innocence.  

The defendant might reasonably be worried that the sentence at disposition would be much higher for a conviction for three charges than for only one.  

“It is sometimes a hard decision for the defendant to make, but it does obviate the prospect of rolling the dice and going to a jury. Before accepting such a plea, the court must specifically determine whether it is consistent with the fair administration of justice, i.e., is the Kennedy plea fair to the general public and to the victim as well?”

A defendant will not usually be sentenced at the plea hearing; the sentencing hearing is normally a separate proceeding that is held about 45 days after the plea.

Occasionally though, the defendant will be sentenced on the spot at the plea hearing, Kirkpatrick said, in accordance with a specific plea bargain expressly approved by the presiding judge.

But if a defendant maintains his or her innocence and is not interested in pleading guilty, the case will move to trial.

Our next discussion will pick up with the trial jury or the “petit jury” before we get all the ins and outs of the trial itself.

— E-mail: wholdren@register-herald.com

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