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Plea
Bargain
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.
The plea bargain is often 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.
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.
"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." ~ Barry M. Baker
Copyright © 2016  Barry M. Baker  
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