| Chapter
8
Covering
Criminal Courts
By Maurice
Possley
Plea Bargaining
The large majority of criminal cases are resolved through plea bargaining. These
resolutions are driven by prosecutors, judges, and defense lawyers for a variety
of reasons.
Expediency and practicality are primary considerations. Judges
want to keep their caseloads from becoming so overwhelming that
the criminal justice system would grind to a halt. There are tremendous
backlogs in many jurisdictions even though most cases are resolved
by guilty pleas. If everyone demanded a trial, chaos would erupt.
Judges prefer to dispose of lesser cases to save their time and
efforts for the most serious matters.
Prosecutors often seek to resolve a case with a guilty plea to
reduce their caseloads. There are other considerations. The prosecution
gets a quick and easy conviction. That is a significant achievement,
particularly in weak cases where the outcome may be in doubt if
a trial is held. It is not uncommon for prosecutors to bring a
plethora of charges against a defendant to provide bargaining room.
In those instances, a prosecutor can offer to drop many of the
charges and appear to be offering a deal. The ability to resolve
cases has been limited in recent years with the adoption of mandatory
minimum sentences as well as statutes requiring that a higher percentage
of sentences—in some cases 85 percent—be served. Faced
with a minimum, for example, of 10 years in prison and no parole
before eight years, a defendant may go to trial rather than plead
guilty for such a sentence.
Reasons that defense lawyers will attempt to resolve cases through
guilty pleas include that they perceive the cases as losers or
they are seeking a non-prison sentence—drug rehabilitation
or anger and domestic abuse counseling, for example. Going to trial
is perceived as risky in many courtrooms because one of the worst
kept, yet unspoken, secrets is that a defendant who goes to trial
and is convicted is assessed a “jury tax”—a longer
sentence.
Typically, prosecutors are willing to give up something in return
for a guilty plea. Usually, prosecutors offer to reduce severity
or number of charges—resulting in a lesser sentence—to
induce a defendant to plead guilty.
Out-Of-Court Deals
In some jurisdictions, plea negotiation sessions with judges are conducted
privately in chambers. In some instances, they are held in open court. Mostly,
the plea bargains are worked out between defendants and their lawyers in
discussion with prosecutors outside of court. In most instances, an agreed
upon sentence is part of the deal. Sometimes the sentence is a specific term
or it be that the agreement calls for imposition of a sentence that is within
a specified range.
A judge is free to accept or reject a plea agreement presented
in court. For instance, Zacarias Moussaoui, accused in connection
with the Sept. 11, 2001 terrorist plot, attempted to plea guilty,
but a federal judge rejected him, and questioned his mental capacity.
In another case, a federal judge in New York refused to accept
a guilty plea from a former employee of AOL accused of stealing
more than 90 million email addresses because the judge questioned
whether the defendant’s actions were a violation of law.
In some instances, judges have refused to accept a plea agreement,
viewing the sentence as too lenient or harsh. In the Enron case,
a federal judge in Houston in 2004 rejected the plea agreement
that prosecutors reached with Lea Fastow, the wife of Enron executive
Andrew Fastow, viewing it as too lenient. By contrast, a federal
judge in Atlanta garnered national headlines in 1992 in the so-called
Iraqgate scandal, when he rejected as too harsh the plea agreement
between prosecutors and a Georgia bank manager, Christopher Drogoul,
who helped his superiors and federal officials illegally lend $5.5
billion to the Iraqis.
In many instances, a defendant will agree to cooperate with prosecutors
in pending criminal cases or in grand jury investigations. Often
this agreement is set out in a written plea agreement that will
be filed in court, unless the entering of the guilty plea and agreement
is handled under seal so that the individual’s cooperation
is kept secret. Often, in federal court, there are designated conference
dates where discussions are held on resolving a case without trial.
Steven Bogira, in a book “Courtroom 302” based on
a year spent in a felony courtroom in Cook County Criminal Court
in Chicago, provides an excellent primer on the art of negotiation
and how a plea agreement is reached. Often, in high profile political
corruption cases, the initial reaction of a defendant is a vociferous
protestation of innocence. Over time, as the prosecution begins
to lay out its evidence, a certain reality may set in that going
to trial will be a waste of time and, more significantly, money.
That’s when plea bargaining begins. A reporter can often
find a good story by going behind the scenes to chronicle this
shift from fiercely resisting a prosecution to making a guilty
plea.
Charges
Criminal charges can be misdemeanors or felonies. A misdemeanor is a charge
that carries a maximum sentence of a year or less behind bars and that is
served in jail instead of prison. A felony charge carries a prison term of
more than a year. Both can result in a sentence of probation. Federal criminal
charges are contained in Title 18 of the United States Code. Each state has
its own set of criminal statutes. Reporters who regularly cover criminal
courts are well advised to obtain copies of the codes for information about
charges, statutes of limitation, and sentencing provisions.
Pre-Trial Proceedings
The period before a trial—whether days, weeks, months or even years—is
a time when prosecutors and defense lawyers maneuver to prepare for the presentation
of their respective cases. Defense lawyers typically attempt to limit or preclude
prosecutors from presenting certain evidence, arguing that it was illegally
obtained or should be barred as irrelevant. This is also a time when requests
may be made for tests of evidence or for requests of defendants to supply evidence
for comparison testing, such as blood, hair, or saliva for DNA profiling or
samples of their handwriting. The many different sorts of pre-trial proceedings
can provide opportunities for a reporter to learn about the case and write
about how the case is proceeding toward a trial.
This begins with the exchange of evidence between prosecutors
and defense lawyers, a process known as “discovery.” Defendants
are entitled to receive, prior to trial, prosecution evidence that
includes police reports, grand jury testimony, laboratory reports,
statements made by the defendants, the names of expert witnesses,
photographs, financial records, evidence of wiretapping and other
surveillance, and, most significantly, any evidence that might
help the accused demonstrate his innocence. This is known as exculpatory
evidence. Withholding such evidence by a prosecutor can be grounds
for a new trial if such a failure to turn it over is discovered
after a conviction.
The requirements for defense attorneys are not so comprehensive,
although defendants are required to notify prosecutors if an alibi
defense or an insanity defense will be presented and the identities
of expert witnesses. Neither prosecutors nor defense attorneys
are required to reveal publicly the contents of discovery materials,
but pre-trial disputes over these materials frequently provide
opportunities for reporters to learn their nature and contents.
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