Bargaining over death
A prosecutor in a county near here used to have a policy of not plea bargaining. His office charged you with exactly what crime he thought your client had committed, and your client pleaded to that or you went to trial. There were exceptions to that; sometimes new information would develop that would warrant a reduction. But the defendant usually wound up pleading to something very close to what he was originally charged with.
The prosecutor's office here in Cuyahoga County has historically pursued the opposite course: they will charge a defendant with every possible crime, and figure that your client will plead to something less to avoid more serious consequences. I recently had a case where the police responded to a call of a "mental male"; my client, who was schizophrenic, was having a psychotic episode. While the cops were talking to his father, my client approached and told the police that he was going to kill them. He was holding a hot dog and a can of soda at the time. They wrestled him to the ground, and, without further trouble, handcuffed him and took him to the psych ward of a local hospital. He was charged with aggravated menacing, a 1st degree misdemeanor.
And with assaulting a police officer, a 4th degree felony, and with intimidation of a crime victim or witness, a felony three. When I went for the first pretrial, the prosecutor read the file, looked up at me, and said, "Why'd they charge him with the felonies?" "I was kinda hoping you'd tell me," I said, smiling brightly. That wasn't quite as bad as the case I'd had a year earlier, where my client got indicted for four counts of aggravated robbery, felonious assault, and kidnapping for trying to rob four people with a plastic toy gun, which they promptly took from him and beat him with it. The indictment included 3-year firearm specifications. "I guess they didn't look at this real closely in the grand jury," the prosecutor told me on that occasion. "Guess not," I said, smiling brightly.
As the Supreme Court concluded in its decisions in Missouri v. Frye and Lafler v. Cooper earlier this year, whatever the merits of the various approaches, plea bargaining is a fact of life: about 95% of all criminal cases are resolved that way. That doesn't foreclose a debate about the ethics of it, though: is it fair to charge a defendant with every offense imaginable in an effort to induce him to forego his constitutional right to trial?
Challenges to the ethics of it, at least in the context of capital litigation, are coming from an unlikely quarter: Hamilton County Prosecutor Joe Deters. In the past 30 years, that county has put 61 people on death row, the most of any county in Ohio. That's not because of rampant crime or a bloodlusty prosecutor's office; in fact, fewer than 200 people there have been charged with capital murder in those three decades. Deters carefully chooses which death penalty cases to pursue, and once he does, there's no turning back: no plea bargains are permitted. The other day, he gave an interview in which he slammed prosecutors who sought death penalty indictments to gain a negotiating advantage. "To use the death penalty to force a plea bargain, I think it's unethical to do that."
There wasn't much question of who he was talking about. Cuyahoga County Prosecutor Bill Mason has applied his office's historical policy to cases involving the death penalty as well, as highlighted by a 2010 case in which six people were charged with capital murder as a result of a drug-related slaying in Parma, a Cleveland suburb. If you're a resident of Cleveland and you're saying, "Gosh, I don't remember hearing about the trial in that one," it's because there wasn't a trial: one defendant pled to involuntary manslaughter and some other offenses and got an agreed twenty-year sentence, and the other five pled to burglary, with one getting three years in prison and the other four probation. One of the defendant's attorneys suggested that the death penalty indictment "probably was a negotiating tool." Ya think?
Mason's insistence that he's not using the death penalty for negotiating purposes isn't consistent with either the anecdotal or empirical evidence. Remember that stat about Hamilton County having indicted fewer than 200 people for capital murder in 30 years? Mason's office indicted 135 in just three years, from 2009 to 2011. Just two of those 135 went to death row. One of them was a "volunteer": he waived a jury, put on no defense, and baited the three-judge panel to give him the death penalty for raping and strangling his 76-year-old grandmother. The other was Anthony Sowell, who raped and murdered 11 women and buried their bodies in his home and back yard. Two out of 135 isn't exactly a record to be proud of; Butler county sent three people to death row in the same time, out of the six they indicted.
Besides the ethical issue, there's another aspect to this. Capital cases are extremely costly; the tab on the Sowell case probably ran to over $2 million. That was a unique situation, but only in degree. The Parma slaying cost over $120,000, and that was resolved in a quick six months. For cases that drag on longer than that, fees for experts and the time necessitated for the court and counsel to handle the extended intricacies of capital litigation can put the cost into the middle-five-figure range for a trial. In 2007, the Arizona Supreme Court designated a task force to look into the "unprecedented number of capital cases" coming out of Maricopa County, where Phoenix is located, because the costs of all those cases was threatening to swamp the system.
There was an amusing twist to it here. Mason isn't running for re-election, and the five candidates to succeed him ran on what was probably an unprecedented "soft on crime" platform in the primary: all promised to substantially reduce the number of capital indictments.