Plea Bargains

Puzzled

So far, I haven’t been too vocal on some of the issues that float around the legal weblog world that are specific to criminal justice. I’ve spent a fair amount of time going into the how of prosecution decision making (i.e. all that stuff on warrants), a little bit on life in my world in the office and in the appellate courts, and some personal stuff. But a couple of things caught my eye and have apparently been churning around in my sub-conscious for a while. So I thought I’d share some thoughts on a prosecutor’s perspective on one of those topics - plea bargains.

Everyone knows what a plea bargain is, I suppose. Technically, it’s when the prosecuting officer determines that a bird-in-the-hand is worth two-in-the-bush and reduces or modifies the already issued charge (or charges) against a defendant in return for a guilty plea to the modified/reduced charge. The term is also used, somewhat loosely, to refer to sentence bargains and charge bargains.

In a sentence bargain, the prosecutor recommends a particular sentence to the court - depending on the state the court may or may not be involved in the negotiation and may or may not be bound by the recommendation. Note: In the federal system, pre-Blakely and pre-Fanfan and/or Booker, it looks to me like the US Attorney can pretty much guarantee a sentence bargain by careful manipulation of the "facts" submitted to the court for sentencing.

In a charge bargain, a potential defendant comes to the prosecutor, before a warrant is issued, and says something like ‘look, I did this thing and you’re going to find out about it. I’ll plead to a charge of {fill in the blank}’ and the prosecutor agrees and issues the warrant for the charge of {fill in the blank} and the defendant pleads guilty, as charged.

So, what’s the deal? Everyone knows about this, and, I suppose, the reasons cited for approving the practice. Heck, Chief Justice Burger even said,

"The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called ‘plea bargaining,’ is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities." Santobello v New York , 404 U.S. 257, 261 (1971).

Well, this.

A while ago, a public defender blogging as Blond Justice posted a note about being a bit too busy to blog because she had been in a longish trial that her client had to do because there was no plea offer. Go here to see the post and the ensuing comments. Apparently this lodged in some hidden recess of what I like to call "my mind," and has been working away ever since. I woke up this morning at an ungodly hour, probably because I’d had two days off and my reptile brain figured it must be Monday! As I tried to return to the arms of Morpheus, one of the comments from that blog post jumped up and refused to leave me alone. So, here I am, at the keyboard, while the world is dark and cold and trying to make up its mind whether to rain or snow, thinking about plea bargains! You can read the initial post and the comments .

Now, what appears to have nestled into my sub-conscious and fermented (festered, you pick) are two things. First, Blond Justice’s comment about her client having no choice but tp do the trial, and, second, the comment "No offer? Shame." Well, three thing. The very first reply/comment about shouldn’t there be an offer to save the taxpayers the cost of a trial, also popped up this morning.

So what, exactly, is it that bothers me about this? I think it’s the sense of entitlement I get. When did the idea that there is a ‘right’ to a reduced charge become the norm in criminal law circles? Around here, it was sometime in the last 10 years or so. When I first started doing criminal law, as a law student intern in 1986, everyone I dealt with, prosecutors and defense counsel alike, knew that there were cases where an offer was routine (e. g. the offer on first offense possession of a personal use quantity of marihuana was almost always plead as charged with a delayed sentence and dismissal after a year’s non-reporting probation - or sometimes reporting if the judge didn’t like the defendant’s looks or something) and there were cases where no offer was the routine. For example, domestic violence, child abuse, destruction of public property, second or greater drunk driving cases. Of course, nothing is absolute in the real world.

The best defense attorneys would fly-speck a police report, maybe talk to a witness or two, and decide how likely a jury conviction was, based on their own experience. Note how much this is like the initial decision by the APA who reviews a warrant request. The difference, in misdemeanor cases, by and large, is that the defense attorney is looking at the case after having met with the defendant and evaluated his or her story first hand. Also, in my town it is not unlikely that the defense attorney will have more experience, sometimes significantly more experience, trying cases than the APA who reviewed the warrant request. Armed with this more intimate knowledge of the case and the client, defense counsel may very well be able to convince the trial APA that a better offer, or a below policy offer might be advisable. But if the APA determined that it wasn’t, no one complained about doing a trial.

When I did my basic course, years and years ago, that if an unrepresented defendant told me he didn’t do it and meant factually he didn’t do it, not that he just didn’t think he was responsible because he didn’t understand the law, I should not offer a plea bargain of any sort because to do so might induce an innocent man to plead guilty! Somehow, I suspect that particular idea may have fallen by the wayside in some jurisdictions. Indeed, raising this issue on appeal hasn’t been all that fruitful. See, for example, North Carolina v Alford where the Supreme Court essentially told Alford "tough luck. If you didn’t do it, don’t plead to it." And, ethics aside, there are other grounds on which to look askance at the whole idea of plea bargains. I’m not all that sure I follow the rational offered by this author , but it’s not all that far out, particularly in the situation the author seems most concerned about - lesser pleas offered to co-defendant’s.

All of which is a bit afield of where I started, isn’t it. I guess what bothers me is the idea that the criminal law has a built in reduction in culpability that a the defendant deserves. In my opinion that way of thinking leads, inevitably, to systematic overcharging by prosecutors is such a subtle way that no one notices until the charging standard slipped from can you prove this charge beyond a reasonable doubt to is it possible you can prove this charge beyond a reasonable doubt to there’s probable cause to charge this, and he’ll plead to this lesser/alternative charge. The de jure standard is still can you prove it beyond a reasonable doubt, but the de facto standard is something less. Not to mention that it doesn’t jibe with my ideas on what the purpose of the criminal law is. But I’m far from the mainstream there, so maybe I am getting worked up over nothing.

Consider this, though. If you do an illegal act, if you hit all the elements of, for example, drunk driving, why should you expect not to be held to account for exactly what you did? Why should your willingness to plead guilty induce me to give you a reduced charge just to avoid presenting the case to a jury and letting the facts be determined by your peers? Isn’t mercy, in the form of mitigating circumstances at sentencing the role of the judge?

And thus we come, by very roundabout means, back to Blakely and role of judges and juries. I suppose some of the urgency about plea bargains can be charged to the morass of mandatory minimum sentences and guidelines that have been forced on judges in the name of getting tough on crime over the years. In my state, at least, none of that nonsense applies to misdemeanor cases, so a judge can still be merciful within the dictates of his own conscience.

Intermission

Now that you know more then you ever wanted to know about the genesis of an arrest warrant, I thought I’d take a break and natter on about some other subject for a while. What would be a good subject? I know!

What Mr. DA’s Been Watching Lately

Somewhere down in the mists of the first entries I think I mentioned I’m something of a TV addict? Well, addict is probably too harsh a word. I’m still getting by on one VCR and a pseudo-DVR lash-up with my ATI All-In-Wonder card hooked to splitter off the cable modem. And I’ve spent way less money on DVDs so far this month. The entertainment budget may be put to the test tomorrow. The seventh, final, season of Buffy hits the shelves, along with season 3 of Smallville and the complete Buck Rogers collection. Decisions, always more damn’ decisions. Based on a number of factors, mostly having to do with length of time since I’ve seen the original airings, I think I’ll have to go with Buffy. See if my logic is, well, logical.

On the one hand, Buck Rogers ran from 1979 to 1981, with 37 episodes. I watched pretty much all of them at the time. Call it 25 years ago. I have vague memories of Erin Grey as the hottest S-F babe up to that point, but that’s about all. On the other hand, Smallville Season 3 is last years first-run and I saw all of those in the original order and in random re-runs. I have a pretty good recollection of the season’s arc and the stand-alone shows alike. So, not really needing to catch up. On the gripping hand it’s been a couple of years without a Buffy fix on a regular basis. For various scheduling reasons I never got into the habit of catching the FX re-runs (scheduling and the way they cut to gain time for more and more commercials, that is) sooo. . . I’ve been too long without Sara Michelle Geller and Allison Hannigan, not to mention Emma Claufield. On, yeah, and the writing - always the writing. Yep, Buffy season seven it is.
Well, that takes care of tomorrow and that collection will go into the to-be-viewed pile with season three of The West Wing; We Were Soldiers Once; Tombstone; High Noon; Rocketship X-M (don’t ask); The Stone Reader; and Kingdom Hospital. Currently, Stargate SG:1, season seven, is working its way through my DVD player.

And here's an bit of trivia for you -- A Stargate SG:1 season takes almost twice as long to re-experience as any other show because every episode has an audio commentary, and if you have any interest at all in how the process of making a weekly television show works, they are well worth the time. That, and it is really clear that the people of this cast and crew like each other, a lot, and are having an amazingly good time doing both the show and the DVD commentaries.

Mr. DA's Pick Of The Law Shows

I have a very low tolerance for legal/cop dramas, for the most part. Of the current crop, the only one I care to spend time on is The Wire on HBO. Hands down, this is the best police show on the tube. The first season, available on DVD was excellent - every bit as good as the first four seasons of Homicide - Life On The Street. Not surprising seeing as David Simon provided the core for both shows. Simon wrote the book that Homicide. . . was based on. Called, oddly enough, Homicide: A Year On The Killing Streets.

The Wire is just great. It's like Joseph Wambaugh on steroids and crack. The second season, coming on DVD early next year, was even better than the first for showing the reality of serious, major crime investigation. The third season, currently in first-run, I don't know. I've been having a friend tape the shows and am just getting into the first couple of episodes, so things are still taking shape.

In second place for the cop shows is The Shield. Guilty pleasure. Pure and simple. Suspend your disbelief and sit back for the ride. This is like NYPD Blue on steroids and then some. Great acting, and just plain cool stuff. Favorite scene - Vic Mackey, in foot pursuit of a street punk, runs full tilt into a board fence across an alley -- and runs right through it in a very satisfying explosion of pieces of wood. Like I said, guilty pleasure.

General legal hijinks -- Boston Legal. The spirit if not the reality of the life of the law. Ally McBeal meets The Practice. Watch just one episode to see William Shatner chew up the scenery and demonstrate why he's had one successful series after another. Not to mention he's looking pretty good for a guy who's going to be 74 next year.

That's about it. I don't like Law and Order in any flavor, and I hate CSI whatever. I can watch NYPD Blue but it kind of lost its appeal for me when they offed Jimmy Smits. Loved The Job, Dennis Leary's first series, and really want the DVDs to come out real soon now. Next - Lawyer Movies!

Is It Soup Yet?

Not quite yet.

OK. To recap: Request by police to charge someone; reviewed by an APA to determine whether there is a crime and, if so, which one; further review by the APA to decide whether the degree of proof represented by the police report satisfies the elected prosecutor’s criteria that the case, as it now exists, can be proved to a jury beyond a reasonable doubt; assuming it can, the request is marked up with the necessary statutory language selections and returned to Intake; paper warrant is generated and then signed by the APA, authorizing the issuance of the warrant; complaint portion of the package is sworn to by an officer, either before the clerk of the court or a magistrate. Hang on, we’re almost there.

Finally!

At this point we’ve almost got our warrant. The final step (usually) is for a "neutral, detached judicial officer" to review the basis for the complaint and decide if there is probable cause to believe the specified crime has been committed and that the named individual did it. Huh? You may well ask. What was all that rigamarole with the APA? Didn’t that amount to a determination that a crime was committed, etcetera, etcetera? Well, consider:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be eized."

Look familiar? Of course! It’s the Fourth Amendment to the U.S. Constitution. And, like much of that document, it assumes things that were so obvious to the framers that they didn’t bother to spell them out. Most importantly, for this discussion, that the person making that probable cause determination is a person who has no interest in whether the warrant does, in fact, issue. That is, someone other than the police or the prosecutor, usually referred to as a neutral and detached (or disinterested) judicial officer. In our case a misdemeanor court judge or a magistrate of that court. Most of the time, the magistrate will agree that the facts and circumstances demonstrate probable cause sufficient to begin a criminal prosecution. Sometimes they don’t. Then what happens?

In some cases, the magistrate simply thinks there is a missing element of the crime. For example, there is insufficient proof of the value of stolen property to support the degree of offense charged. Generally, these kinds of deficiency are easy enough to fix. In other cases, the magistrate disagrees that a crime has been made out. Those are a bit harder to resolve.

If the problem is that the magistrate doesn’t understand the law, that can be addressed in as politic a manner as possible. There have been occasions when the chief assistant or even the elected prosecutor have found themselves conducting a one-on-one seminar in some esoteric aspect of substantive criminal law for one of our judges. I mean, let’s face it – legislatures can get up to some real hijinks when they take a first run as things like identity theft, elder abuse, revisions to the drunk driving statutes, and so on. Not to mention the hilarity that can ensue when they attempt to revise statutes that have remained essentially unchanged for 150 years or so. In all fairness to the magistrates and judges of high volume courts, it can be a little difficult at times to keep up with 1) the volume of legislation relating to criminal law and procedure, and 2) the volume of case law on the same topics. When you explain changes in either the letter or the interpretation of the law, supported by real evidence that things are pretty much the way you claim, most of the time the problem goes away. Not always, though. That, however, is a highly unusual situation and will be considered at another time. For now, let's assume the magistrate takes a look at the complaint, reviews any documentation, and signs the warrant. That's the point where criminal process is said to have issued.

The warrant, authorized and issued, is returned to the requesting police agency and next steps in the process are up to the officers.

How long does this whole process take? Depends on the case and how badly the warrant is needed. I've seen attempt murder warrants issued in two to three hours. On the other hand, I've seen complex drug conspiracy warrants that spent weeks between the submission of the request and the issuance of the warrant. Average time for non-custody misdemeanors and low-grade felonies -- about a week.

The Saga Continues

Is It A Warrant Yet?

No, not quite yet.

At this point, an APA has exercised her massive intellect and experience and determined, based on the information she has before her, that the specified charge can be proved to a jury, beyond a reasonable doubt. She has marked up the request packet with the statutory language of the charge or charges, making the language specific to this offense and this offender. She’s noted any special notices that need to be added. (E.g. habitual offender, felony involving a minor, felony involving a motor vehicle, etc.) She’s marked the witnesses to be subpoenaed for the probable cause hearing, and, finally, she has initialed and dated the authorization box. At this point the packet goes to a warrant clerk to be prepared.

Slight digression -- before the request is sent to an APA for review, the intake section has logged it in, assigned a tracking number, made sure all the required bits are there, and entered the basic information into the case management program. In fact, this is all done more or less at the same time. The unique tracking number is assigned by the program when the request is logged in. This number stays with this request/case from now on, come what may. After this administrative folderol is accomplished, the request is assigned to a screening APA.

Back to the main event. The APA has authorized the issuance of a warrant to arrest some poor unsuspecting criminal. How does that get into the hands of the folks who are charged with making that arrest? The warrant clerk takes the packet and calls up the initial case file using the tracking number. The defendant's name and basic information, along with the statutory citation for the requested charge, have already been entered so the next step is the fine detail. The actual charge as customized by the screening APA. Any notices that have to be included. The names and addresses and witness type for all of the listed witnesses. The ones the APA has marked for subpoenas are flagged. Any special categories of crime are noted at this point. E.g. domestic violence, firearm, major narcotics, etc.

Once the program auditor is satisfied that all the required information has been entered, a warrant set is printed. In our case, it's a plain paper warrant generated via an HP LaserJet. The warrant clerk assembles the whole packet in the proper order, staples it together and puts the whole thing back in the APA's box for final review and signature.

Generally, within a hour or two of the final packet being dropped in her box, the screening APA will review the warrant for correctness (no typos, no mis-marked variables, proper notices) and sign and date the authorization block. Then the whole thing goes back to the warrant clerk to be sorted in the holding bin for the appropriate police agency.

Are We There Yet?

No. The APA, acting on the authority of the Prosecuting Attorney, has authorized the issuance of the warrant. It's still not a warrant. Looks a lot like one, but it hasn't been issued because it's missing two important things. First, the signature, under oath, of a police officer (or other witness) attesting to the facts on a complaint. A complaint is part of the warrant packet, and looks a lot like the companion warrant. The complaint sets out the facts that show a crime was committed. The complaint is usually signed by an officer "on information and belief" but sometimes it's a civilian witness with actual, personal knowledge of the facts. Either way, that signature says that, to the best of the signatory's knowledge, the crime alleged in the warrant happened, and the defendant named thereon did it. This oath and signature can be administered/witnessed by a judge, a magistrate, or a clerk of the court. If the complaint is signed before a clerk, it's set aside for final review by a judge or magistrate. If it's sworn to and signed before a judge or magistrate, in the normal course of events they will review the warrant and determine if they agree with the APA that there is, at this point, probable cause to believe a crime was committed and that the named defendant committed it.