Plea Bargain

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The effort you put into building a quality case will always determine the quality of the plea bargain.

Detective Lieutenant Barry M. Baker (ret.) is a 32 year veteran of the Baltimore Police Department.

The plea bargain is a necessary tool for prosecutors to operate efficiently within an inherently inefficient criminal justice system. There are many people who will never pass up a chance to attack any efficient governmental process when the result does not fit their preconceived outcome. They often lose sight of the positive and certain outcome provided by the plea bargain.

A plea bargain is simply an agreement between a prosecutor and a defendant. It provides a predetermined sentence in exchange for a guilty plea by the defendant. A defendant will, if he or she desires, have the benefit of legal counsel in the negotiations. The prosecutor will seek approval for a plea bargain from the victim and the primary police officer. However, it is up to the prosecutor to proceed with an agreement regardless of objections from a victim or police officer.

Once an agreement is reached, the prosecutor must secure agreement from 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.

Overwhelming Evidence and the Plea Bargain

You’re going to see a lot of police officers who share the negative view regarding the plea bargain. You’ll also see that those police officers who complain about plea bargains the most are those 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 to establish the guilt of your suspects, you’ll be regularly disappointed on the outcomes whether the cases proceed to trial or end with a plea bargain.

There’s a lot more to the plea bargain than the efficient adjudication of cases. You’ll hold the key in ensuring that your plea bargain case will serve justice as well as the efficient disposal of your case. 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 a plea bargain not trials before judges and juries. It’s a lesson you too will learn early on.

The Perfect Rape Case – Why Consider a Plea Bargain

Early in my career, I was dispatched to a hospital emergency room for a rape report. I was introduced to the victim, and I immediately observed the first piece of evidence in the case. It was the noticeable bruise on the victim’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. This was not a case one would place in the plea bargain category.

The victim worked in a shopping mall where she’d been employed since her graduation from high school. 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 in the same shopping mall. 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.

Victim Conned

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. 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. He asked 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 reasonable.

The victim caught a cab, and she arrived at the suspect’s apartment 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. While the events were not common for a first date, the victim did not feel threatened in any way. She entered the apartment where she seated herself on the sofa.

The Rape

The victim had only been waiting for a few minutes when the suspect reentered the living room. He was still wearing only the bathrobe. Without any warning the suspect pushed the victim onto her back as he reached beneath her skirt. When the victim resisted the attack, the suspect grabbed the victim’s throat. He simultaneously 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. She was grateful that she was escaping with her life. The victim was suffering pain from the neck and vaginal injuries she’d sustained. Once out of the apartment, she hailed a cab and went directly to the hospital. This victim’s direct response to a hospital further reduced the need for a future plea bargain.

I worked throughout the night, and early the next morning I was knocking on the suspect’s door. I was in position of an arrest warrant and a search and seizure warrant. I’ll never forget the expression on the suspect’s face when he opened his door. He stood there 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.

No Gentleman and No Housekeeper

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 only verified allegations made by 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. 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 charge.

The Prosecutor Dismissed any Thought of a Plea Bargain

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 warrant any consideration for a plea bargain.

The jury trial 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 makeup 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, prosecutor 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 stated 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 for Rape – Guilty for Assault

“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 the plea bargain, 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 end with a plea bargain.

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.

The Plea Bargain is a Straight Forward Deal

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 bargain offer has to give the defendant the incentive to forgo the court room gamble.

As it turned out in this case, the 10 year plea bargain deal for the Rape would have been the way to go. Even with the 5 year sentence for the assault, the sentences would have run concurrently. In actual time served, the defendant would have served 5 years instead of half that for the assault alone.

Always remember this one important fact. The quality of any plea bargain from the prosecution perspective will always be dependent on you the police officer. The effort you put into building a quality case will always determine the quality of the plea bargain.

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