Russell Hebets Nov. 6, 2014

For those of you who have not been following this story, let me catch you up. Michael Phelps, the most decorated Olympic athlete in modern history, was charged with his second DUI on September 20th, 2014. This followed a similar arrest and plea of guilty to DUI in 2004, although he was able to avoid a conviction in that case. After his current charge he publicly admitted a lapse in judgment, expressed disappointment in himself, and checked himself into a 6 week inpatient treatment program with the goal of “providing the help I need to better understand myself.” This begs the question, if he is contrite, remorseful, and apologetic, why has he pleaded not guilty and set the case for trial on December 19th?

One likely answer is that his attorney is simply buying time to compile mitigation. Some of you are probably wondering what I’m talking about. What the heck does “compile mitigation” mean? Basically, I’m talking about getting as much information as possible that tends to show what a good guy Michal Phelps is, how seriously he is taking these charges, and what changes he is making in his life to ensure that nothing like this ever happens again.

Phelps entered the 6 week inpatient program around October 5th, 2014. This means that, assuming he is a model patient, he should complete the treatment under his belt around November 19th, 2014. The completion of this program is a big deal in the eyes of a judge and a prosecutor. It shows that he is not only talking the talk about getting and staying sober, but he is walking the walk. The “in-patient” designation of his treatment means that the program he is enrolled in is residential; he is eating, sleeping and living at a treatment facility. Residential programs are much more intensive than traditional “out-patient” treatment which generally involves going to meetings for an hour or two weekly, with little or no supervision when the patient is not in a weekly meeting.

With completion of this program in his arsenal, along with the charitable activities that Phelps engages in, his attorney is likely to obtain a much more favorable plea offer than would otherwise be the case. Now, it is possible that he is setting the case for trial because the prosecutor is treating him harshly because of the high profile nature of the case- this sometimes happens with famous people who get into trouble- especially for a second offense. It is also possible that Phelps and his attorney’s believe they can win at trial. But you have to think that a role model like Michael Phelps wants as little attention to this incident as possible, which is why a plea deal here is highly likely.

So what about his trial on December 19th? Something that many people outside of the criminal justice system do not realize is that just because you set your case for trial, this does not mean that you are actually going to go to trial. In fact, the high majority of criminal cases are resolved through a plea agreement before the day of trial. Most judges will even accept guilty pleas on the day of trial. In this case you should expect to hear about a plea offer and guilty plea either just before or on the day of Michael Phelp’s trial. Because of the work the he did up-front, he is very likely to receive a sentence which does not include jail and which will allow him to continue his swimming career and compete in the 2016 Olympics. Hopefully the next time Michael Phelps makes the news it will be for his conduct in the pool rather than out.