H. Michael Steinberg has 38+ years of experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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The Claim That One Was “Duped – Compelled” Into Pleading Guilty By Their Lawyer


By H. Michael Steinberg Colorado Criminal Defense Lawyer

Introduction: Understanding The Concept Of A “Knowing And Intelligent Plea” Of Guilty In Colorado

Those charged with a crime in Colorado have at a minimum three fundamental Constitutional rights:

The privilege against compulsory self-incrimination,

The right to trial by jury,


The right to be presumed innocent unless proven guilty beyond a reasonable doubt.

A plea bargain requires a defendant to waive (give up) these critical rights. A plea bargain must be at “arms-length,”  there must be an actual bargain reached by parties who are both fully informed about the evidence in the case.

“Arms Length” Plea Bargaining

The phrase “arm’s length” is frequently used to describe contract-based dealings in which two or more independent, unconnected parties consent to conduct a transaction while operating independently and acting in their own best interests.

An “arm’s length” deal means the parties involved have “symmetric” knowledge – the same level of knowledge. Arm-length transactions are defined as transactions between two unrelated parties who are not in a confidential relationship and are believed to have roughly equal bargaining power. While that goal – equal power – is never achieved in the manifestly imbalanced comparison of the power of the prosecutor as against the accused, there remains the straightforward concept that an arm’s-length plea bargain, even in this context, must be knowing, voluntary, intelligent, and without compulsion or duress.

It Is Inescapable That Plea Bargaining Is The Dominant Resolution Mechanism In The Criminal Justice System

The functional reality of the criminal justice system in the United States is that a significant majority of individuals – upwards of 95% on average – who have been charged with a crime resolve their case by entering into guilty pleas and forgoing their right to trial.

The expectation of the accused (fundamental to ANY and EVERY plea bargain) is that entering into the plea bargain if a deal is struck, must be based on upon clear and full disclosures of the evidence for and against the accused by the prosecutor as well as clear and comprehensive advice from the defendant’s criminal defense lawyer. In the absence of this careful balance, the integrity and reliability of the entire system of justice – the courts, the prosecutors, the defense lawyers, and the rule of law are in danger of failure and may be corrupted.

The Role Of A Defense Lawyer In The Plea Bargaining Process

Criminal defendants are almost always “strangers in a strange land” – unfamiliar with the criminal justice system and usually do not fully understand the true role of their defense attorney. Feeling powerless in this complex and somewhat opaque system is familiar and very real to the accused.

Every criminal defense lawyer’s expected and primary objective is to zealously advocate for their clients and ensure their constitutional rights are fully protected throughout the legal proceedings.

The lawyer’s role is simple – thoroughly assess the evidence and identify weaknesses and strengths in the case. Armed with this information, defense lawyers then may or may not negotiate with prosecutors and attempt to secure favorable plea deals that minimize potential penalties or even lead to the dismissal of the case, guide and advise on the intricacies of the legal system, and help defendants understand the implications of various plea bargain options; work closely with their clients to tailor plea bargains that align with their client’s best interests.

Some believe that criminal defense lawyers intentionally coerce plea bargains. While it may seem that way to their clients when the client is urged to take the deal, in my opinion, nothing could be farther from the truth.

Criminal Defense Lawyers And Alleged “Coerced” Plea Bargains

As just noted, one of the most widespread misconceptions about criminal defense attorneys is they somehow “force” their clients to accept plea bargains. This belief is simply rarely true. Defense attorneys in Colorado and across the nation are committed to safeguarding the rights of their clients and ensuring that the legal proceedings are conducted in a fair manner.

The use of coercion, manipulation, or intimidation is in stark contrast to the principles of the lawyers I have known for the last 40-plus years. These methods, if they happen, violate the overriding ethical principles and laws that govern every attorney and the criminal justice system itself. A Colorado criminal defense attorney’s role is to thoroughly examine the evidence and then provide their client with the client’s options as to the most effective and logical way to proceed.

The negotiation of a plea bargain, as opposed to going to trial, is one of the options in this process if it is deemed in the client’s best interest by both the lawyer and the client.

Effective Negotiations – The Key To Fair And Just Plea Bargaining

Negotiating, plea bargaining, with prosecutors can potentially secure reduced charges, lighter sentences, or even dismissal of the case. Effective defense lawyers have a deep understanding of the legal system and, with experience, the ability to leverage the strengths and weaknesses of each case on behalf of their clients. Successful negotiations demand strong communication skills and the ability to build rapport with opposing counsel.

The ability to negotiate effectively is a necessary skill for criminal defense lawyers. In a complex and frequently high-stakes environment, negotiation plays an essential role in a fair resolution of a case. Skilled defense attorneys know that not all cases can be won at trial by jury. As a result, these lawyers rely on their ability to negotiate to attempt to reach the most favorable outcomes for their clients.

Ultimately, Colorado criminal defense lawyers work diligently to provide effective representation and secure favorable outcomes for their clients, BUT sometimes the process goes wrong.

When The Process Goes Wrong United States vs. Swan – 2024 Tenth Circuit Case – Pleading Guilty Based On The Intentional Misinformation From A Criminal Defense Lawyer

Individuals charged with crimes who plead guilty sometimes claim that they were “duped” into pleading guilty due to coercion or manipulation by their lawyers. It is without question that coercion and manipulation by a lawyer, intentionally or as a result of negligence, has the potential to distort an individual’s ability to make informed decisions about their case and can lead them to waive their right to a trial and admit guilt out of fear or confusion.

United States v. Swan Case is a recent case decided by the 10th Circuit that addressed this critical issue.

In the Swan case, Swan argued that his plea was not knowing or voluntary…

“because he was informed that one of the rights he was waiving by pleading guilty—his right to an impartial jury trial—was effectively nonexistent.”

To prove his case, Swan, an African American, conclusively established in his appeal that his lawyer told him that if he went to trial, the jury…

“would be [composed] of no one of minority color” and that Swan “wasn’t going to get a very good jury because it would be culled of any minorities.

He was correct. The government did not dispute that Swan’s lawyer’s statement to Swan was a material misrepresentation about one of the rights Swan was sacrificing by pleading guilty.

The government nevertheless argues that this material misrepresentation did not render Swan’s plea unknowing and involuntary.

Brief Analysis Of The Lawyer’s Misrepresentation Of Swan

“A defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice ‘was within the range of competence demanded of attorneys in criminal cases.’”

McMann v. Richardson, 397 U.S. 759, 771 (1970).

In the Swan case, Swan argued that his lawyer’s intentional advice:

“materially misrepresented the nature of his right to a jury trial and rendered his waiver of that right unknowing and involuntary because he did not know what he was surrendering.”

(and that)

...(Swan) did not understand one of the rights he was giving up because plea counsel materially mischaracterized that right.”

A Plea Of Guilty Must Be Knowing And Voluntary

Swan, as any defendant in this situation in an appeal, must show the material misrepresentation impacted his ultimate decision to plead guilty.

Swan’s lawyer testified that Swan was told by his lawyer that:

“it would be [Swan’s] word against all of the officers that were present, the body[-]cam footage, and jurors that would be [composed] of no one of minority color.”

The lawyer said all minorities would be removed from the jury. Swan pleaded guilty based on that representation. His plea was therefore NOT knowing and voluntary under the law. (See Colorado’s Rule of Criminal Procedure – Rule 11.

Coercion Based On The Intentional And Wrong Advice Of A Criminal Defense – When A Lawyer Fails

Understanding the role intentional misinformation plays as a form of coercion and manipulation is crucial to understanding the Swan decision.

Like all individuals offering opinions, lawyers can misinform their clients and thus force them by virtue of that information, into entering a guilty plea. The lawyer who carelessly advises their client of a critical issue reflecting on the foundation of due process, calls into question the foundations of our entire judicial system. This issue forces us to rethink several issues we take for granted.

The vulnerability that defendants feel when navigating our criminal justice system seems to be ignored or, at a minimum,  is not well understood, …but it is real. Allegations of poor and misleading or unlcear advice to the accused merits careful examination not only to safeguard the rights of the accused but at a very basic and moral level. While a defendant may not voice confusion and natural fears he or she may feel, criminal defense lawyers have a duty to repeatedly press to make sure their clients fully understand what is happening all around them.

Notably, the challenges faced by defendants who claim they were deceived during their plea bargain process are manifest. Immediate walls of resistance appear, and various powerful forces will stand in the way of the successful proof of these claims.

This is made even more difficult because the defendant has the burden of proof to demonstrate that they were intentionally misled or coerced into pleading guilty. Courts view plea agreements the same as any binding contract, and they are VERY hesitant to undermine them without substantial evidence of misconduct by the criminal defense lawyer.

The Criminal Justice System On Trial

Defendants routinely claim that their attorneys neglected to investigate all alternate defenses or to give them appropriate counsel. If a criminal defense lawyer does not thoroughly investigate a case, adequately explain possible outcomes to their client, or misleads their client about the options available, these issues can form grounds for withdrawing from a plea agreement.

The criminal justice system can be overwhelming. Defendants feel powerless and may feel coerced into accepting a plea bargain rather than risking an unfavorable outcome at trial. But feelings have little to do with the issues discussed here.

Prosecutors are lawfully allowed to leverage their power by threatening more severe charges or penalties if the defendant goes to trial. The accused, fearing a guilty verdict and terrible consequences, may feel pressured to take a plea deal even if they believe in their innocence. Compounding that pressure is the reality of limited financial resources, sometimes also forcing defendants into accepting plea bargains as an expedient way out of their predicament.

The emotional and psychological toll associated with criminal charges can overwhelm defendants and their families. The stress, anxiety, and fear experienced during legal proceedings may also push a defendant into pleading guilty simply as an attempt to end the mental anguish they endure throughout the process.

But, while the point is made, that is not what is addressed in this piece. The inherent coercion of the “system” is very different from the intentional misrepresentation of the lawyer in the Swan case. Claims of being ‘duped’ into pleading guilty are prevalent and rarely successful on appeal. While, defendants may argue that they were misled or coerced by their attorneys, prosecutors, or other parties involved in the legal process, but their claims almost always fall on deaf ears.

The road to the reversal of a plea agreement is complicated and filled with obstacles.

Summary And Conclusion – Colorado Criminal Law – The Claim That One Was “Duped – Compelled” Into Pleading Guilty By Their Lawyer

John Swan contended that he ought to have the right to rescind the guilty plea he had made following his indictment on a charge of illegally having handgun cartridges. He maintained that he was “factually innocent” and that his plea attorney had “forced” him to enter a guilty plea by erroneously warning him that if he went to trial, the jury would only consist of white people.

The District Court Judge at the time of the plea did not correct that assertion, and Swan had no previous experience navigating the criminal justice system that would negate the advice.

“This material misrepresentation about Swan’s right to an impartial jury selected through racially nondiscriminatory means occurred just before Swan told plea counsel that he wanted to plead guilty,”

The Appeals Court determined that Swan’s attorney “materially misrepresented the nature of his right to a jury trial,” saying the jury he faced would contain “no one of minority color.”

While Swan’s attorney “vehemently denied” having “tricked” Swan into signing a guilty plea, the point is this – Swan believed that by entering a guilty plea, he was forfeiting his right to have a jury of his peers try his case. He believed he would not receive a fair trial, so his acceptance of the plea agreement could not have been a knowing and voluntary decision.

Full stop.

Colorado Criminal Law – The Claim That One Was “Duped – Compelled” Into Pleading Guilty By Their Lawyer

The reader is cautioned to the fact that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

BEST-STANDING-CHOICE-200x300ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at: hmsteinberg@hotmail.com

A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – please call 720-220-2277.

“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

Putting more than 40 years of Colorado criminal defense experience to work for you.

You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer. We encourage you to “vet” our firm. Over the last 40 years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice.

H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law, and he hopes this article helps you in some small way.