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Whenever the term “plea bargain” hits the news cycle, it’s always
portrayed as a negative aspect of the criminal justice system. The
explanation for this is simple. The plea bargaining process is the only
reasonably efficient process within an inherently inefficient system, and
there are people who will never pass up a chance to attack any efficient
governmental process when the result does not fit their preconceived
outcome.
A plea bargain is simply an agreement between a prosecutor and a
defendant on a predetermined sentence in exchange for a guilty plea by
the defendant for the crime(s) charged. A defendant will, if he or she
desires, have the benefit of legal counsel in the negotiations, and the
prosecutor will normally seek approval for a plea bargain from the
victim(s) and the primary police officer involved in the case. However,
it is ultimately up to the prosecutor to proceed with an agreement
regardless of objections from a victim or police officer. Once an
agreement is reached, the only hurdle remaining for the prosecutor is
securing the agreement of the judge hearing the case. While a judge
can deny a plea bargain agreement for any reason and order the case to
trial, the vast majority of plea bargains are accepted by the court.
When you become a police officer, you’re going to see a lot of police
officers who share the negative view regarding plea bargaining. After
you’re around for a while, you’ll also see that those police officers who
complain about plea bargains the most are those police officers who
aren’t that conscientious when it comes to their own case preparation.
If you regularly present cases to prosecutors where you exercise
minimal investigative efforts in establishing the guilt of your suspects,
you’ll be regularly disappointed on the outcomes whether the cases are
plea bargained or they proceed to trial.
There’s a lot more to plea bargaining than the efficient adjudication of
cases. Nine times out of ten, you’ll hold the key in ensuring that your
plea bargained case will serve justice as well as the efficient disposal of
your case. First of all, a defendant needs an incentive to plead guilty to
charges that will result in a significant length of prison time. The
definition of incentive in this regard is easy… overwhelming evidence.
You might ask this question. “If I’ve developed overwhelming
evidence, why should a prosecutor accept a 10 year prison term with a
plea bargain when going to trial could result in a sentence double that
amount of time or more?” The operative word here is could – not
would. Prosecutors and defense attorneys alike learn early in their
careers that the only sure outcome of cases is derived from plea
bargaining – not trials before judges and juries. It’s a lesson you too
will learn early on.
Early in my career, I was dispatched to a hospital emergency room for a
rape report. As a nurse escorted me into the examination room, I
immediately observed the first piece of evidence in this case. As I was
being introduced to the young woman sitting on the edge of the hospital
bed, I was conducting a close visual examination of the heavy bruising
around the woman’s neck. The really cool part, from an evidentiary
perspective, was the four distinct finger impressions on the side of her
neck.
You won’t get the perfect case that often, but they do come along. This
was one of those cases. The 24 year old victim was indeed forcibly
raped, and a mountain of evidence would follow to support the rape
charge.
The victim worked in a store located in a shopping mall where she’d
been employed since her graduation from high school. Even though she
lived in a neighborhood where girls, as well as boys, were regularly
exposed to crime and drugs, she’d beaten the odds and remained clear of
all the negative influences of her environment.
The suspect in this case was a security officer who worked the mall in
which the victim’s store was located. Over a period of three months the
suspect had established a conversational relationship with the victim.
The suspect would, periodically, ask the victim to date; however, she
refused each time since she had a regular boyfriend. The victim would
describe the suspect as attractive and very personable. She was never
bothered by the repeated requests for a date, because the suspect’s
flirtatious banter was always complimentary, and she never felt
pressured in any way. Finally, there came a time when the victim and
her boyfriend ended their relationship. When the suspect dropped his
next request for a date, the victim thought to herself, “Why not?”
On the evening of the scheduled date, the victim received a telephone
call from the suspect. The suspect was very apologetic explaining that
he’d been delayed at work, and he ask if the victim could meet him at
his apartment so that the delay would not interfere with the evening’s
planned activities. The victim agreed since she’d known the suspect for
some time, and the suspect’s story sounded perfectly reasonable. The
victim caught a cab and she arrived at the address given a short time
later. When the suspect opened the door, he was dressed only in a
bathrobe. He quickly explained that he’d just showered, and he invited
the victim to wait in the living room while he finished dressing. Again,
while the events so far were not exactly common for a first date, the
victim did not feel threatened in any way, and she entered the
apartment where she seated herself on the sofa.
The victim had only been waiting for a few minutes when the suspect
reentered the living room still wearing only the bathrobe. Without any
warning the suspect began pushing the victim onto her back and
reaching beneath the victim’s skirt. When the victim began resisting
the attack, the suspect grabbed the victim’s throat as he ripped away
her panties with his other hand. As the victim fought against losing
consciousness, the suspect completed a textbook act of forcible rape.
After completing the rape, the suspect unceremoniously escorted the
victim to the door. At that point the victim was grateful that she was
escaping with her life. Suffering considerable pain from the neck and
vaginal injuries she’d sustained, she was able to hail a cab and head to
the hospital.
I worked throughout the night getting my end of things in order, and
very early the next morning I stood in front of the suspect’s door armed
with an arrest warrant and search and seizure warrant. I’ll never forget
the expression on the suspect’s face when he opened his door dressed
only in the same bathrobe described by the victim. It’s too bad the
victim couldn’t have been there to see the fear in his face. I don’t know
which scared him the most… the site of a uniformed police officer or
the large case being carried by the crime lab technician with the words
“Baltimore Police Crime Lab” prominently displayed. As soon as his
shock subsided, I couldn’t shut that guy up. As I verbally advised him
of his Miranda rights, he never stopped talking. It was long before DNA
testing, so his endless self incriminating statements about the sex from
the evening before left no problem in proving that it was the suspect
who’d engaged in intercourse with the victim.
The interior of the suspect’s apartment was exactly as described by the
victim. While it was already obvious that the suspect was no gentleman
as he had initially and successfully conned the victim into believing, he
was no housekeeper either. The victim’s torn panties, on the floor next
to the sofa, made a great crime scene photograph.
Weeks later, I met with the Assistant State’s Attorney (ASA), who was
prosecuting the rape, for a case review. The ASA was relatively new,
but he’d been around long enough to get his share of crappy cases. To
say he was pleased with this case would be an understatement. He
explained how he’d already been lobbied by the defendant’s attorney for
a plea bargain requesting a 10 year sentence for a guilty plea to the
rape. One should remember that during this time, a defendant, with
good time and parole, would typically serve half his prison sentence, so a
10 year sentence only guaranteed 5 years of actual prison time. The
ASA had already interviewed the victim. That interview, coupled with
the overwhelming physical evidence, in the view of this prosecutor,
didn’t even warrant any consideration of a plea bargain.
The jury trail lasted for three days, and it was a prosecution case all the
way. While the defendant’s attorney did his best to limit the damage,
every bit of physical evidence was admitted. Every incriminating
statement by the defendant was admitted, and the victim’s testimony
was unassailable. The theme of the defense strategy was that the sex
was consensual; however, the defendant did not testify so that his
criminal record would not be exposed in cross examination. The make
up of the jury did not seem to favor the defendant in any way. The jury
was equally split between male and female. Most were middle aged or a
little older. Race was never a factor since the victim, defendant, and
most jurors were of the same race.
When the jury was sent into deliberation, everyone expected a short
deliberation. As the hours dragged on, and the end of the day grew
near, the ASA became apprehensive. He knew how juries work – or
better said how twelve reasonably intelligent people can produce
unreasonable conclusions. This jury was reasonable in one respect.
They weren’t going to waste another day deliberating painfully obvious
facts.
“NOT GUILTY.” You could have heard a pin drop when the jury
foreman announced the not guilty verdict for the rape. The silence
continued as the judge asked for the verdict on the lesser charge of
assault. The foreman answered, “Guilty.” Following the usual motions
from the defense, the judge immediately sentenced the defendant to 5
years on the assault conviction. The judge then simply turned toward
the jury and stated, “The jury is dismissed.” It was interesting that the
judge made no “thank you for your service” type of comment. Things
were moving at whirlwind speed. The judge was already up and heading
for his chambers before the court officer could get “All rise” off his
lips. The corrections officer was handcuffing the defendant as the jurors
scrambled to pick up their personal effects and leave the jury box.
The prosecutor was obviously shocked by the verdict, but his shock
didn’t delay him in trapping that jury before their escape. The
discussion that followed was interesting. None of the jurors had any
complaints about the prosecution of the case. Every one of them
believed every fact presented by the prosecution. Every one of them
believed every prosecution witness – including me, the police officer.
Exasperated, the young prosecutor simply asked, “Why?”
The jury had a problem with the victim’s decision to meet the defendant
at his apartment. In their view, “She should have known better.” It
was just that simple. If you’re wondering why the jury convicted on the
assault charge, it turned out that they just couldn’t get by the
photograph of the finger impressions on the victim’s neck. Had it not
been for that photograph, the defendant would have walked free that
afternoon.
Not all juries are as brain dead as this jury, but it does illustrate that
taking anything into a court room is always a gamble for both sides.
Today, when I hear some pundit bemoan the inadequacies of plea
bargains, I just yawn and think back to my first real lesson about
dismissing a plea bargain just because you have a strong case.
When you become a police officer, you’ll be doing yourself a favor if you
don’t buy into the popular belief that prosecutors are somehow letting
you down when they plea bargain your cases. The fact is that the
stronger you build your cases, the more often your cases will be plea
bargained. Even if you go to trial and the jury convicts on everything,
you could get a judge who will impose minimal sentencing that a plea
bargain could have surpassed. It’s a crazy world boys and girls, and the
criminal justice system isn’t immune.
While any process can be corrupted, a plea bargain agreement is a
pretty straight forward deal with a record of facts available for review.
When you see a plea bargain with a ridiculously light sentence for a
relatively serious crime, it’s usually a result of the prosecutor’s attempt
to at least salvage a guilty plea from a really weak case. In these
instances the plea offer has to give the defendant the incentive to forgo
the court room gamble.
Always remember this one important fact. The quality of any plea
bargain from the prosecution perspective will always be dependant on
you… the police officer.
portrayed as a negative aspect of the criminal justice system. The
explanation for this is simple. The plea bargaining process is the only
reasonably efficient process within an inherently inefficient system, and
there are people who will never pass up a chance to attack any efficient
governmental process when the result does not fit their preconceived
outcome.
A plea bargain is simply an agreement between a prosecutor and a
defendant on a predetermined sentence in exchange for a guilty plea by
the defendant for the crime(s) charged. A defendant will, if he or she
desires, have the benefit of legal counsel in the negotiations, and the
prosecutor will normally seek approval for a plea bargain from the
victim(s) and the primary police officer involved in the case. However,
it is ultimately up to the prosecutor to proceed with an agreement
regardless of objections from a victim or police officer. Once an
agreement is reached, the only hurdle remaining for the prosecutor is
securing the agreement of the judge hearing the case. While a judge
can deny a plea bargain agreement for any reason and order the case to
trial, the vast majority of plea bargains are accepted by the court.
When you become a police officer, you’re going to see a lot of police
officers who share the negative view regarding plea bargaining. After
you’re around for a while, you’ll also see that those police officers who
complain about plea bargains the most are those police officers who
aren’t that conscientious when it comes to their own case preparation.
If you regularly present cases to prosecutors where you exercise
minimal investigative efforts in establishing the guilt of your suspects,
you’ll be regularly disappointed on the outcomes whether the cases are
plea bargained or they proceed to trial.
There’s a lot more to plea bargaining than the efficient adjudication of
cases. Nine times out of ten, you’ll hold the key in ensuring that your
plea bargained case will serve justice as well as the efficient disposal of
your case. First of all, a defendant needs an incentive to plead guilty to
charges that will result in a significant length of prison time. The
definition of incentive in this regard is easy… overwhelming evidence.
You might ask this question. “If I’ve developed overwhelming
evidence, why should a prosecutor accept a 10 year prison term with a
plea bargain when going to trial could result in a sentence double that
amount of time or more?” The operative word here is could – not
would. Prosecutors and defense attorneys alike learn early in their
careers that the only sure outcome of cases is derived from plea
bargaining – not trials before judges and juries. It’s a lesson you too
will learn early on.
Early in my career, I was dispatched to a hospital emergency room for a
rape report. As a nurse escorted me into the examination room, I
immediately observed the first piece of evidence in this case. As I was
being introduced to the young woman sitting on the edge of the hospital
bed, I was conducting a close visual examination of the heavy bruising
around the woman’s neck. The really cool part, from an evidentiary
perspective, was the four distinct finger impressions on the side of her
neck.
You won’t get the perfect case that often, but they do come along. This
was one of those cases. The 24 year old victim was indeed forcibly
raped, and a mountain of evidence would follow to support the rape
charge.
The victim worked in a store located in a shopping mall where she’d
been employed since her graduation from high school. Even though she
lived in a neighborhood where girls, as well as boys, were regularly
exposed to crime and drugs, she’d beaten the odds and remained clear of
all the negative influences of her environment.
The suspect in this case was a security officer who worked the mall in
which the victim’s store was located. Over a period of three months the
suspect had established a conversational relationship with the victim.
The suspect would, periodically, ask the victim to date; however, she
refused each time since she had a regular boyfriend. The victim would
describe the suspect as attractive and very personable. She was never
bothered by the repeated requests for a date, because the suspect’s
flirtatious banter was always complimentary, and she never felt
pressured in any way. Finally, there came a time when the victim and
her boyfriend ended their relationship. When the suspect dropped his
next request for a date, the victim thought to herself, “Why not?”
On the evening of the scheduled date, the victim received a telephone
call from the suspect. The suspect was very apologetic explaining that
he’d been delayed at work, and he ask if the victim could meet him at
his apartment so that the delay would not interfere with the evening’s
planned activities. The victim agreed since she’d known the suspect for
some time, and the suspect’s story sounded perfectly reasonable. The
victim caught a cab and she arrived at the address given a short time
later. When the suspect opened the door, he was dressed only in a
bathrobe. He quickly explained that he’d just showered, and he invited
the victim to wait in the living room while he finished dressing. Again,
while the events so far were not exactly common for a first date, the
victim did not feel threatened in any way, and she entered the
apartment where she seated herself on the sofa.
The victim had only been waiting for a few minutes when the suspect
reentered the living room still wearing only the bathrobe. Without any
warning the suspect began pushing the victim onto her back and
reaching beneath the victim’s skirt. When the victim began resisting
the attack, the suspect grabbed the victim’s throat as he ripped away
her panties with his other hand. As the victim fought against losing
consciousness, the suspect completed a textbook act of forcible rape.
After completing the rape, the suspect unceremoniously escorted the
victim to the door. At that point the victim was grateful that she was
escaping with her life. Suffering considerable pain from the neck and
vaginal injuries she’d sustained, she was able to hail a cab and head to
the hospital.
I worked throughout the night getting my end of things in order, and
very early the next morning I stood in front of the suspect’s door armed
with an arrest warrant and search and seizure warrant. I’ll never forget
the expression on the suspect’s face when he opened his door dressed
only in the same bathrobe described by the victim. It’s too bad the
victim couldn’t have been there to see the fear in his face. I don’t know
which scared him the most… the site of a uniformed police officer or
the large case being carried by the crime lab technician with the words
“Baltimore Police Crime Lab” prominently displayed. As soon as his
shock subsided, I couldn’t shut that guy up. As I verbally advised him
of his Miranda rights, he never stopped talking. It was long before DNA
testing, so his endless self incriminating statements about the sex from
the evening before left no problem in proving that it was the suspect
who’d engaged in intercourse with the victim.
The interior of the suspect’s apartment was exactly as described by the
victim. While it was already obvious that the suspect was no gentleman
as he had initially and successfully conned the victim into believing, he
was no housekeeper either. The victim’s torn panties, on the floor next
to the sofa, made a great crime scene photograph.
Weeks later, I met with the Assistant State’s Attorney (ASA), who was
prosecuting the rape, for a case review. The ASA was relatively new,
but he’d been around long enough to get his share of crappy cases. To
say he was pleased with this case would be an understatement. He
explained how he’d already been lobbied by the defendant’s attorney for
a plea bargain requesting a 10 year sentence for a guilty plea to the
rape. One should remember that during this time, a defendant, with
good time and parole, would typically serve half his prison sentence, so a
10 year sentence only guaranteed 5 years of actual prison time. The
ASA had already interviewed the victim. That interview, coupled with
the overwhelming physical evidence, in the view of this prosecutor,
didn’t even warrant any consideration of a plea bargain.
The jury trail lasted for three days, and it was a prosecution case all the
way. While the defendant’s attorney did his best to limit the damage,
every bit of physical evidence was admitted. Every incriminating
statement by the defendant was admitted, and the victim’s testimony
was unassailable. The theme of the defense strategy was that the sex
was consensual; however, the defendant did not testify so that his
criminal record would not be exposed in cross examination. The make
up of the jury did not seem to favor the defendant in any way. The jury
was equally split between male and female. Most were middle aged or a
little older. Race was never a factor since the victim, defendant, and
most jurors were of the same race.
When the jury was sent into deliberation, everyone expected a short
deliberation. As the hours dragged on, and the end of the day grew
near, the ASA became apprehensive. He knew how juries work – or
better said how twelve reasonably intelligent people can produce
unreasonable conclusions. This jury was reasonable in one respect.
They weren’t going to waste another day deliberating painfully obvious
facts.
“NOT GUILTY.” You could have heard a pin drop when the jury
foreman announced the not guilty verdict for the rape. The silence
continued as the judge asked for the verdict on the lesser charge of
assault. The foreman answered, “Guilty.” Following the usual motions
from the defense, the judge immediately sentenced the defendant to 5
years on the assault conviction. The judge then simply turned toward
the jury and stated, “The jury is dismissed.” It was interesting that the
judge made no “thank you for your service” type of comment. Things
were moving at whirlwind speed. The judge was already up and heading
for his chambers before the court officer could get “All rise” off his
lips. The corrections officer was handcuffing the defendant as the jurors
scrambled to pick up their personal effects and leave the jury box.
The prosecutor was obviously shocked by the verdict, but his shock
didn’t delay him in trapping that jury before their escape. The
discussion that followed was interesting. None of the jurors had any
complaints about the prosecution of the case. Every one of them
believed every fact presented by the prosecution. Every one of them
believed every prosecution witness – including me, the police officer.
Exasperated, the young prosecutor simply asked, “Why?”
The jury had a problem with the victim’s decision to meet the defendant
at his apartment. In their view, “She should have known better.” It
was just that simple. If you’re wondering why the jury convicted on the
assault charge, it turned out that they just couldn’t get by the
photograph of the finger impressions on the victim’s neck. Had it not
been for that photograph, the defendant would have walked free that
afternoon.
Not all juries are as brain dead as this jury, but it does illustrate that
taking anything into a court room is always a gamble for both sides.
Today, when I hear some pundit bemoan the inadequacies of plea
bargains, I just yawn and think back to my first real lesson about
dismissing a plea bargain just because you have a strong case.
When you become a police officer, you’ll be doing yourself a favor if you
don’t buy into the popular belief that prosecutors are somehow letting
you down when they plea bargain your cases. The fact is that the
stronger you build your cases, the more often your cases will be plea
bargained. Even if you go to trial and the jury convicts on everything,
you could get a judge who will impose minimal sentencing that a plea
bargain could have surpassed. It’s a crazy world boys and girls, and the
criminal justice system isn’t immune.
While any process can be corrupted, a plea bargain agreement is a
pretty straight forward deal with a record of facts available for review.
When you see a plea bargain with a ridiculously light sentence for a
relatively serious crime, it’s usually a result of the prosecutor’s attempt
to at least salvage a guilty plea from a really weak case. In these
instances the plea offer has to give the defendant the incentive to forgo
the court room gamble.
Always remember this one important fact. The quality of any plea
bargain from the prosecution perspective will always be dependant on
you… the police officer.