Prosecutors routinely abuse plea bargaining


By Dan K. Thomasson
Scripps Howard News Service
Thu, 10/06/2011 – 4:00pm

WASHINGTON — Not long ago I listened to a veteran defense attorney explain to a child-care worker that her options were either to accept a plea bargain of negligence or go to trial for a much more serious “shaken baby” charge.

On the one hand, the attorney explained, she would be put on probation for a few years and not have to do any jail time; on the other she would face up to 50 years in prison. He said that while he felt her case was winnable or the prosecutor would not have made the offer, he recommended accepting the plea.

When she protested her innocence of any contribution to the death of the baby under her care, explaining that the infant had shown some respiratory difficulty when it was dropped off, the attorney replied that she had to consider the welfare of her own family which included her husband and two small children.

“I believe you’re innocent of mistreating the child although your response to its physical difficulty wasn’t as quick as it might have been,” the attorney said. “But there is a dead baby, and juries often take only that into account — someone has to be responsible and you would be the most likely person no matter how unfair that may be. You would be confronted by the child’s emotional parents sitting in full view of the jury demanding swift judgment, perhaps to cover their own negligence.

“The prosecutor overcharged you and knows it, but that wouldn’t keep him from going full tilt to save face if you reject this. I would say you have a 50-50 chance of being acquitted of the more serious charge. Do you want to take that chance?”

Under this advice and pressure from her husband, the woman accepted the prosecutor’s offer.

The scenario played out here is not rare. In fact it happens all the time, according to recent findings, as prosecutors, most of whom are elected, use the threat of felonies with long prison terms to extract guilty pleas to lesser charges as a way of clearing cases without going to trial. Implicit in this for the victim is the specter of expensive, debilitating trials. What the accused miss is their day in court. As a result the number of trials in America’s courts has dropped substantially, according to news reports.

Adoption of heavy mandatory sentences for some crimes has contributed considerably to the situation, making judges at all levels less and less relevant to a system that now more than ever rests in the hands of the prosecutors. Many of the prosecutors on the state and local levels view the position as a way to catapult themselves into higher political or lucrative private positions or to maintain holds on their current jobs, sometimes for decades. The infamous Duke University lacrosse case where team members were callously accused of sexual abuse of a dancer is the latter. The prosecutor, who was up for reelection, not only was forced to drop the charges but also lost his license to practice law and was briefly incarcerated.

Particularly disturbing is the tendency of many prosecutors to resist ever admitting that the person against whom they have won a conviction is in fact not guilty despite overwhelming evidence, including at times, DNA and recanting witnesses. There is a growing list of the wrongly convicted from death row to lesser sites who have been finally released over the long standing objections of prosecutors.

In the case of the young child-care worker, the defense attorney explained to me that he felt he could have won at trial but that he was duty bound to present the offer as one she should seriously consider because the stakes were so high. “Anything can happen at trial,” he said, “and I would not want to have it on my conscience that I advised her not to take the plea offer under the circumstances. There always is a chance of losing and what then would happen to her two young children and her husband who made it clear he could not wait decades for her.”

“The plea was pure extortion,” he said, “but it kept a mother out of jail.”

E-mail Dan K. Thomasson, former editor of the Scripps Howard News Service, at thomassondan@aol.com.

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