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Fictitious pleas

I had a case several years ago where my client was charged with raping a nine-year-old boy.  Sounds a lot nastier than it was:  the father of the boy had been a co-defendant of my client in an arson-for-hire scheme, and had made the rape allegation shortly before the two were arrested.  My argument was that the father sensed things were going south, and wanted to undercut my client's ability to roll over on him by accusing him of child molestation.  The prosecutor mostly agreed with that analysis, and so my client wound up pleading to abduction, a third-degree felony.  The judge gave him nine months, concurrent to the time he was doing on the arson case.

The case against Bennie Veasey apparently wasn't that great, either.  He was indicted for rape and kidnapping, but five months later he was allowed to plead guilty to 4th degree felonies of attempted abduction and aggravated assault.  He got probation.

A big difference between my client and Veasey, however.  A few weeks after sentencing, Veasey was charged with raping a woman in Cleveland, and then arrested in Maryland on a human trafficking charge.  The rape case here was dropped when Veasey was sent to prison in Maryland.

If Judge Michael Donnelly in the common pleas court here in Cuyahoga County got his way, Veasey's plea (and my client's) would no longer be permitted.  Last week, the Ohio Supreme Court decided Donnelly wouldn't get his way.

At issue was a proposed amendment to the criminal rules which would have required all pleas to have a factual basis; in felony cases, the prosecutor had to state in open court that "there are facts to support the elements of the offense or offenses that are the subject of the negotiated plea."  You can read the proposed rule, along with Donnelly's letter and those of several others in support of it here.  By a 4-2 vote, the court declined to adopt the rule.

The argument for the rule isn't a tough one to make; in fact, it might be ethically required.  Rule 3.8(a) of the Ohio Rules of Professional Conduct prohibits a prosecutor from pursuing or prosecuting charges that he knows are not supported by probable cause; having a defendant plead to aggravated assault in a rape case would seem to violate that rule. 

On the other hand, among the papers at the link is an email from John Murphy, head of the state prosecutor's association, opposing the amendment.  His position is also easy to understand.  It's no secret that over 95% of criminal cases are resolved by plea bargain.  If the number of cases going to trial were to double - so that only 90% of cases pled out - the system would break down.   So let us do our job, the argument goes, and work out pleas which may be wholly unmoored from reality, but which allow the system to keep running.

That's fine by me.  Here's something said by no defense lawyer ever:  "Boy, I wish judges would reject more plea deals."  The vast majority of the cases we get are untriable, so it's just damage control; you work out the best deal you can.  If you wind up getting creative in the eventual bargain, the defendant almost invariably benefits. 

And if you wind up getting creative in the eventual bargain, it means the prosecution had a shit case.  They don't drop a rape case down to an aggravated assault unless their alleged victim has some serious credibility issues.

But that begs the question:  maybe if we didn't allow a reduction to a fictitious crime, the state would take a bit more care in deciding what charges to indict on.  There's something to be said for that.  One of the attachments to the proposed rule is a letter from a municipal court judge, who instituted the policy of not accepting pleas to something that didn't happen.  He was warned about a backlog, but it turns out that it reduced his caseload:  essentially, prosecutors were less likely to file bullshit charges.  That's misdemeanor court, though, and that might not translate to felony court. 

The biggest problem I have with all this is that I'm not sure what the problem is.  If a judge wants to require a factual basis for a plea, he's perfectly able to do so.  If he wants to reject a reduction from rape to aggravated assault, he has the complete discretion to do so.

That's not to fault Donnelly.  I know him well, I've had cases with him, and he's one of the best judges on the bench.  To him, having people get up and essentially lie about what a defendant did is an affront to justice.  He's right. 

But the ideal - of a prosecutor using justice as guidance in his decisions - is in conflict with the adversary system we have.  Everybody knows that prosecutors will indict on any possible charge, with the view that they are bargaining chips.  That's the way it works.  Both sides know that a deal will eventually be struck.  It's a matter of negotiation.  And everybody knows that in a negotiation, you start with your most extreme position.

The basic problem, in my heavily jaundiced view, is that the relationship between the way the system works and justice is more or less coincidental at this point.

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