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Truth in plea bargaining

So I got a brochure last week from Judge Donnelly over at the Common Pleas court.  As you can see, it's a panel discussion on plea bargaining.  The judge asked me to get out the word, so I just sort of have.

Donnelly's become a strong advocate for "truth in plea bargaining," which basically requires a factual basis for a plea.  He was rebuffed last year in his effort to amend the rules to require that, but if you want your client to plead guilty to felonious assault instead of gross sexual imposition so he can avoid the sex registration requirements, don't expect to do it in Donnelly's room.

His outrage over this was only increased by a recent case he handled.  A guy we'll call Bill had been charged twenty years ago with a bunch of counts of child rape, kidnapping, and gross sexual imposition.  A couple of days into trial, the State agreed to let Bill plead to a single count of misdemeanor assault.

That's right.  Misdemeanor assault. 

Fast forward twenty years, and Bill has come back into court, trying to expunge that assault conviction.  The State opposes it.  Why?  Not because Bill has been in and out of trouble with the law since then; he hasn't even been arrested.

No, under the law you can't have a conviction expunged if it involved a victim who's a minor.

Donnelly went nuts, and told the prosecutors that he was going to vacate the plea, the prosecutors said they would appeal, but they blinked first:  the plea was vacated.

And I'm sure that was on his mind when he wrote this description of the issue to be addressed:

In today's criminal justice system, very few cases go to trial. Instead, most cases are resolved through a plea bargaining process by which the accused plead guilty -- even for crimes they didn't commit -- to avoid a trial and lengthy prison sentence. Ninety-four percent of felony convictions at the state level and 97 percent of felony convictions at the federal level are the result of plea bargains. This practice contributes to the rise of mass incarceration of the poor and minorities in the U.S.

I bolded that part, but I think it's the key phrase:  that's what Bill wound up doing.  Imagine if a lawyer walked up to you tomorrow and the two of you had the following conversation:

HIM:  Boy, had a tough one in Cramer's room the other day.  Trial on a buncha kiddie rapes.

YOU:  Yeah, how'd it go?

HIM:  Oh, I worked out a deal, he pled to misdemeanor assault, no fine, no costs, no probation, walked out the door.

You would go home, build a shrine to that attorney, and pray in front of it every night that you'll grow up to be a lawyer that good.

And neither you nor he will give a passing thought to the great likelihood that Bill didn't do anything, or that, in any event, the State was several lightyears away from proving that he did.

You don't think about that because you have to take that deal, and the reason why comes in the phrase right after the bolded one:  to avoid a trial and lengthy prison sentence.

Well, why would he be facing a lengthy prison sentence?  Because the legislature keeps passing harsher laws.  Yes, HB 86 was passed in 2011 with the avowed purpose of reducing the prison population and thus saving the state money.  But that didn't last long:  "mandatory" probation became "discretionary" probation the next year because judges squawked.  And the legislature added crimes like being in a criminal gang, or being a "violent offender," and just added new firearm specs as well.

"Avoiding a trial" is part of that, too.  In two decisions this year, the Supreme Court has essentially told judges, "Yes, you can impose additional prison time on a defendant if he goes to trial, just don't spend much time talking about it."  And that's where appellate review of sentencing comes in -- or doesn't.  I've been doing this blog a number of years now, and I've read God knows how many sentencing cases.  I can count the number of times I've seen a sentence thrown out for something other than a technicality - the judge didn't make the findings for consecutive sentences, say - on the fingers of two hands, and I'm not sure I'd need the second.  Whatever sentence a judge sticks you for in common pleas court is 99% guaranteed to be affirmed.

Finally, there's the little matter of the prosecutor overindicting; their policy is to charge the defendant with the most serious offense possible.  How likely they are to be able to prove it seems to take a back seat in the calculus.  I had a recent case where my client, not having committed a single legal transgression in her 74 years on earth, found herself charged with attempted murder for throwing a brick at her husband.  It missed; she pled to misdemeanor assault.

See, here's the thing.  Nothing I wrote about in the last three paragraphs is going to change if we go to "truth-based" pleas.  The laws aren't going to become less severe.  Nobody's going to tell judges that whatever sentence they were going to give on a plea, they have to give after a trial.  The prosecutor's office isn't going to hire three or four extra lawyers to spend more time in the grand jury room making sure that the indictment is based on some actual evidence.

The defendant's ability to resolve a case by using some creative plea bargaining is one of the weapons in his arsenal.  And given everything arrayed against him, it's a weapon he needs.


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