Let's Make a Deal

I want my day in court.

That's what lots of our client's say.  Whether they did what they were charged with or not, they figured they were due a shot at a jury.

Same thing in civil cases.  

The idea was that the legal system resolved disputes - criminal, civil, what have you - with trials before judges and with verdicts returned by 12 good men and true.  [Back in the day, there were no women on juries; when women got on juries, they were still afterthoughts.]

But trials, you know, are messy things.  They take time.  They cost money.  They interfere with golf.  And you never really know what will happen.  Juries sometimes (I know this will be a shock) don't do what Nancy Grace wants. Or what the parties expect.  Sometimes they don't get it right (whatever "right" might be).

And isn't it just easier to have the judge decide that civil case on summary judgment?  And really, why not plead out the criminal case?  Work it out between defense and prosecutor.

The reality is that today very few cases, civil or criminal, state or federal, go to trial.  The vast majority are resolved on paper or settled or plead out.  Maybe that's a good thing.  Maybe justice (whatever that might be, and no, I'm not going there again) is just as well served.

Or maybe not.

It's sure as hell more efficient.

But sometimes you have to wonder.

In New Hampshire a few years ago, when the legislature was holding hearings on whether to abolish the death penalty (this in a state that at the time had nobody on death row and hadn't executed anyone since the 1930s), one witness (I think it was a local prosecutor) explained that it was important to keep the death penalty on the books.  Not so that it could be used.  No, the idea wasn't actually to put anyone on death row or, god help them, to executed anyone.  And not to deter crime.  No, they needed to keep the death penalty because it allowed them to get convictions for murder on plea bargains without the mess, cost, and uncertainty of trial.

That struck me then, and strikes me now, as deeply offensive.

Which brings us to Cuyahoga County, Ohio, which is Cleveland and its immediate environs, Cleveland being the city once known as the "mistake on the lake."  Actually, I rather like the place.  It has much to offer (including the lake, a terrific symphony, natural history and art museums, the Rock Hall of Fame, a first-class zoo, some fine restaurants, an architecturally-intriguing, albeit oddly-shaped federal courthouse, you name it).  And it's been decades since the Cuyahoga River caught fire.  But I digress into travelogue.  

Cuyahoga County also has a pattern of indicting lots and lots of people with death specifications.  And then pleading them out.  Sometimes to very little.

Andrew Welsh-Huggins for AP.

Within days of a drug-related slaying in suburban Cleveland, six men were indicted on charges that carried the possibility of a death sentence. Six months later, all had been allowed to plead to lesser charges, including four who received probation and never went to prison.

Bill Mason, the Cuyahoga County Prosecutor, denies that he uses the death penalty as a plea bargaining chip. I doubt that anyone believes him.

From 2009 to 2011, for example, Cuyahoga County indicted 135 defendants on charges that could result in a death sentence, according to records maintained by Mason's office. Only two of those offenders were sent to death row, including Anthony Sowell, convicted in 2011 of killing 11 women.

The rest either pleaded guilty, usually with the death penalty charges withdrawn, or were convicted but not sentenced to death. In six cases, charges were dismissed.

If he's not using the death penalty as a negotiating tool, then he's clearly bringing indictments on charges he knows he can't prove.  (If he doesn't know, then he's a fool, and he's not a fool.)

So what? you ask. Here's what.

Joe Deters, the Hamilton County (that's Cincinnati) Prosecutor, perhaps Ohio's most enthusiastic supporter of the death penalty, the guy who once said that the folks on death row should be thrown off of buildings, is appalled.

"To use the death penalty to force a plea bargain, I think it's unethical to do that," Deters said in an interview.

His practice demonstrates that.  He brings far fewer capital indictments than Mason, but doesn't plead out those cases and he gets lots of death sentences.  If he charges someone with a capital offense, he tries damn hard to ensure that the person will be killed.

Doug Berman doesn't buy into the ethical concern.

I have never quite fully understood just why it would be considered completely inappropriate for a prosecutor to use death penalty charges a lot, especially given that (1) death sentences are never mandatory, (2) death charges cannot be brought unless and until a defendant commits an especially bad form of murder, and (3) only the threat of a death sentence seems likely to encourage a very guilty murder defendant to be willing to plead guilty to an offense that carries a life or LWOP term.
In contrast, there is little doubt (and too little criticism) of the tendency of prosecutors to use severe mandatory prison terms charges as a bargaining chip not only to secure a plea, but also to force a defendant to become a cooperator against others.  In many federal cases, I too often see examples of prosecutors using threats of mandatory prison terms to require non-violent drug and gun offenders to give up their rights in cases that are quite suspect and far more mitigated than any potential capital case.

Which seems to me to miss the point.

So let me be clear.

Death as a bargaining chip isn't wrong because it's death.  (Well, yeah, it is. But that's not the only reason, and not the relevant one.)  It's wrong because any indictment that charges an offense greater than warranted with the expectation/hope that it will induce a plea to a lesser offense (or a plea that will result in a lesser penalty) is wrong.

Here's the thing.  The prosecutor's job (and I've said this a lot) is to seek justice (whatever the hell that is).  He has no business charging offenses he doesn't plan to prove beyond a reasonable doubt or offenses that he doesn't fairly believe he can prove beyond a reasonable doubt.*

What does that mean?  It means the prosecutor shouldn't charge A in order to get a conviction for B.

There is some ambiguity of course.  Mason says that further investigation during trial preparation may change things. That's surely true.  But if that investigation reveals, most of the time, that he'd overcharged, something's wrong.  

And the system accepts plea bargaining.

But a fair bargain is one where everyone gives some from what they want.  And if the prosecutor doesn't actually want a conviction for the charges brought, if the prosecution is using them to get the defendant to accept a plea to what the prosecutor believes to be not a compromise but the proper resolution, then the prosecutor isn't bargaining in good faith.  And if the bargaining fails, and the defendant faces the risk of being convicted of an offense that's more than the prosecutor believes proper . . . .

The problem of overcharging is real.  Sure, as Berman says, there are many more instances of it in cases where death isn't charged than in those where it is.  Why?  Because there are many more of those cases.  Why don't we notice it? Because death penalty cases get more attention.

Is it somehow worse when death is charged as a bargaining chip than when a non-death charge is brought as a bargaining chip?

Can someone be a little bit pregnant?

Mason does it with death charges.  There's no other fair way to read the data.  Maybe he does it in other cases, too. I don't know.

What I know is that it's wrong.

And if we went back to actually trying cases, it would likely end.

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*Yes, I know that the formal ethical rule is that the prosecutor shouldn't bring charges unless he believes there is probable cause.  But I'm talking about ethical behavior, not merely that which could (in theory) lead to disciplinary proceedings.