The Dirty Little Secret About Plea Bargaining
by Richard Barbuto
It is generally thought that when engaging in discussions, conversations and the like, that more reliance on facts than not is a plus. With that in mind, I would like to mention one of the dirty little secrets about plea-bargaining.
In many discussions of plea-bargaining we hear phrases such as revolving door and turnstile Justice. These phrases are often followed by uncomplimentary adjectives describing defendants and criminal defense lawyers. Now, here is the secret: plea bargains to a lesser charge require the consent of the prosecutor and the approval of the court. Let me say that again. Plea bargains to a lesser charge require the consent of the prosecutor and the approval of the court.
Let's take an example based on the criminal laws of New York. While the laws may be different in other jurisdictions the principles stated above will not be different. Let us suppose that a defendant is charged with assault in the second degree which is a class D felony. Let us further suppose that the defendant wishes to take a plea to assault in the third degree, a class A misdemeanor which carries a penalty of considerably less jail time. That plea can only be accomplished with the permission of the prosecutor who will stand up in open court and recommend that the plea be accepted by the court. The defendant will then plead guilty to the lesser charge. The court, must then approve of the so-called deal, or plea bargain.
The fact of a plea bargain to a lesser charge is that there are three parties to the process. The prosecutor, who must give her permission; the judge, who must give her approval; and the defendant, who is hoping for the permission of one and the approval of the other. In fact, the defendant and the defense lawyer have much less control over plea bargains than the prosecution and the court.
So the next time you are at a cocktail party or just sitting around the campfire and somebody says these criminals and their lawyers are allowed to get away with murder, remind them that what ever they may have gotten away with the prosecutor and the judge okayed it.
Let's take another example that many of us do not think about. Let us suppose that the defendant is charged with a crime and whether or not he will be convicted depends wholly on the testimony of police officers. Let's further assume that the penalty for the crime is 10 years. At arraignment bail is set in an amount that will keep the defendant in jail pending trial. A year goes by and the prosecutor begins to have doubts about the strength of his case. The defendant is offered a plea and a penalty of "time served" meaning if he takes the plea he will get out of jail and go home right away. If he doesn't take the plea, he will wait a while longer for his trial and if he loses face 10 years in jail. Whether guilty or not, there are many people who will take that plea. If an innocent defendant takes that plea it does not seem to me that he got away with anything.
1 Comments:
Mr. Barbuto, I agree that there must always be agreement between prosecution and defense but I submit that there is an even dirtier secret regarding the plea bargain.
My reference is to prosecutors, specifically the career driven Assistant US Attorney, often in collusion with the probation officer responsible for the pre-sentencing report, who cast the net of "conspiracy" over anyone within reach and use the plea agreement as an enticement to cooperate. The classic "carrot and stick" where the "carrot" is the offer of leniency in return for cooperation. The stick prison.
The trigger may be one aware that they are a "person of interest," has had involvement in the issue under investigation, perceives themselves to be in jeopardy of criminal charges, and comes forward on their own accord and offers to cooperate in the form of a proffer. At this time, no arrest has been made nor any charges filed. There is only the threat of such action.
The person of interest has fallen into the trap the AUSA has set, buys into the "promises" (lies) of confidentiality, the offer of other considerations and fully cooperates. He is on a slippery slope to prison but doesn't know it. If the defense attorney is incompetent the slope gets much more slippery.
What frequently at this point is that nothing happens lulling the person into a false sense of security. He begins to think that things will be OK. Nothing is further from the truth. The AUSA, despite his promises (lies), shows the statements to the "real" defendant and offers major concessions if he will "tell the truth" about the first individuals involvement. The resulting testimony is "tailored," full of false details and outright lies and impossible to disprove. It becomes a classic he said/she said and the AUSA holds all of the cards. The AUSA will present the lies and even lie himself to gain another conviction. Here's an example from "The Wall Street Journal" July 20, 2009. "In a pre-trial hearing last week, U.S. District Judge Clay D. Land said he was “shocked” by Assistant U.S. Attorney Jason M. Ferguson’s admission that he had lied to" (a defense attorney in a pending case).
Now the ax falls. The person is informed that they are to be charged with felony conspiracy which may result in a lengthy prison sentence. A plea deal is offered in lieu of arrest, arraignment and trial. Few can afford the expense and risk of challenging the power of the US Government so, after further discussion, a decision is made to accept a plea agreement. After all, there are the "promises" made that would insure a probated sentence. The slippery slope has now become an unstoppable slide to prison. He is still not aware.
At the plea hearing the plea agreement is signed which includes signing away all appeal rights. Great defense right? To perpetuate the illusion the probation officer says "I don't see anything here but probation" and that the PSR will reflect no objections to any of the "promised" considerations.
Interestingly, there were 88,094 cases decided in 2006. 91% were convictions. Of these 96% pleaded guilty or no-contest. Does anyone really believe that this percentage of cases is a slam dunk?
The AUSA has his conviction. Between accepting the plea and sentencing a new PSR is issued and all of the "promised" concessions are withdrawn. The defense failed to get any of them included in the written agreement.
At sentencing the judge follows the guidelines indicated by the "new" PSR and, rather than the probated sentence that had been "promised," the defendant is sentenced to many months in a federal facility. All of the "carrots have been withdrawn and the "stick" has been applied with vengeance.
Patrick Fitzgerald, US Attorney Chicago May 2009 "We have lots of sticks," "We need more carrots." Is anyone listening?
In November the Supreme Court will decide if prosecutors have "absolute immunity" when they fabricate evidence and present it as fact. Maybe this "Dirty Little Secret" will see the light of day.
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