Saturday, January 3, 2009

No More Plea Bargains?

When I woke up this morning and read in the Omaha World-Herald that Gage County Attorney was implementing "no more plea bargain" policy, I assumed it was another prosecutor grandstanding about being "tough on crime." But, as I frequently say to prosecutors, the truth is a little more complicated than it appeared at first glance. First, the reason for the change:

With the shadow of the "Beatrice Six" hanging over his head, Gage County Attorney Randall Ritnour announced Friday that his office would no longer offer or accept plea bargains in felony cases involving adults.

Six people were wrongfully convicted in a 1985 murder case in Beatrice, with four giving detailed statements — apparently false — confessing to their involvement in the brutal attack, rape and murder of a 68-year-old woman. Some later said they cooperated with authorities to avoid being charged with a crime that could send them to the electric chair.

The reason I'm not skeptical after reading the article? Doesn't it seem like a prosecutor who's willing to speak this frankly deserves at least a chance to demonstrate that his policy is for the benefit of the system rather than his own reelection chances?

It is not necessarily a hard-nosed approach, he said. In fact, in some cases defendants may face lesser charges if he doesn't think he can prove a more serious charge at trial. He said the new philosophy will require him and his two full-time deputies to carefully consider the charges they file against people.

"This prevents overcharging," Ritnour said. "You will see at certain times that law enforcement or prosecutors will throw whatever they can at somebody, hoping something will stick while other charges get thrown out in a plea bargain. We're going to see what we should charge people with and stick with it."

I am still very skeptical that Ritnour can make this work and drive plea bargaining out of the equation. For example, as shown in the quote below, some defendants will and should balk at the prospect of "cooperating with police and prosecutors" simply for a recommendation of lenient sentencing for a felony charge. For my clients, especially those charged with a felony for the first time, the prospect of a reduction to a misdemeanor is a significant motivator.

Before I went to law school, I worked for a company that helped ex-felons find jobs, so it was brought home to me how difficult it can be to convince an employer that the "F" on your record wasn't that serious. For most job applicants, the "F" becomes the filter that separates them from the other applicants and leaves them jobless, more likely to succomb to recidivism. Hopefully, for defense attorneys and their clients, the risk of "cooperation" (in its current definition) will be too high a price to pay when they still face an "F" on their record which could haunt them the rest of their lives.

Here's what Ritnour says that makes me skeptical, more because of knowledge about the current system than the words he chooses:

Ritnour said that if a defendant cooperates with police and prosecutors or provides testimony against a co-defendant, he will join with defense lawyers in recommending a lenient sentence, but he will not reduce charges.

I guess it depends on what Ritnour means by "cooperates with police and prosecutors." Does he mean becoming a snitch, risking ending up dead in a dumpster (as the story I heard in the P.D's office goes) or does he mean getting involved in drug treatment? The devil will be in the details.

One of the dangers of working in the "Justice System," in any role, is the potential to succomb to cynicism, to assume that any new idea will fall victim to the same old temptations and corruptions of power that taint the current system. Still, statements like this give me reason to hope that this new policy deserves a chance:

"Our point is to do the right thing, and the right thing is to charge people with the crime they actually committed, not to bounce around making deals."

There's a quote, the source of which I forget, about cross examination being the greatest engine for ferreting out the truth mankind has yet produced. The statement is true as long as the weapon is wielded effectively.

The same applies to jury trials. If Ritnour's approach is to stop overcharging and let more juries decide the outcomes of cases, I applaud his efforts. But if the abuses of the current system, such as "trial taxes," are not eliminated, this will end up being the same old wine in a new bottle.

I'm willing to give it a taste first, before I label it from a distance, however.


Anonymous said...

Same old wine in a new bottle? Is that the yang to new juice for an old cup?

David Tarrell said...

It was evening when I wrote this, so I was focused on booze instead of juice, consulting, as it were, with an old friend named Sam Adams for metaphorical suggestions. I usually mix my metaphors, not my juice however.