Everyone plea bargains in the criminal courts; sometimes the bargaining resolves a case. It is part of the process. But not all parties approach the bargaining process as equals. Indeed, one party is never present at all. I learned that lesson again today in a case that was set for trial, but ended in pleas of nolo contendere.
My client was accused of vicious acts of violence. His former fiancé was the accuser. The medical evidence about what, if anything, took place was contested. The former fiancé was rip-roaring to go, however. She wanted to testify, despite all the testimonial disabilities she brought to the table in the form of drug use, a difficult psychological history, and other issues.
We thought we had the case worked out on Wednesday. The prosecution offered a modest period of time behind bars, but first needed to consult the accuser. My client authorized me to tell the state we would accept the terms. It was a risk-avoidance measure. The victim suffered a brain injury in one of the alleged assaults. If convicted, my client faced decades behind bars.
Yesterday, the alleged victim told the prosecutor the proposed deal was unacceptabler. So the state would not agree to the terms we had tentatively agreed upon earlier in the week. This morning, co-counsel and I met with the prosecutor.
"I’d like a chance to speak to your client," I said.
The prosecutor, a bright and capable woman, looked puzzled.
"I don’t have one," she said.
"That’s my point, " I said, without missing a beat.
The prosecutor looked miffed.
"I don’t represent the victim," she said.
"I know that," I replied. "I wasn’t talking her. I want to talk to the client on whose behalf you appear in court. I want to talk to the state."
She looked at me as though I had lost my mind. In a manner of speaking, I have. You can’t talk to a legal fiction, even if it is a necessary legal fiction.
The difference between a prosecutor and a defense lawyer in plea bargaining is that the defense lawyer acts on behalf of another person, a person who ultimately decides whether to take a case to trial or to accept the terms and conditions of a plea. The prosecutor does what he or she thinks is right.
The prosecutor’s world is perhaps a little too tidy, and a little too fastidious. If a defense lawyer substitutes his judgment for that of a client, we call it ineffective assistance of counsel; when a prosecutor consults his or her intuition, we call it justice. The prosecutor is a very powerful figure in American courts.
I was troubled in today’s case. One day, the prosecutor held the door open to a plea offer the defendant was willing to accept. After meeting with a non-party witness whom the prosecutor does not represent, she closed the door insisting on more time in prison. Yes, a victim has a right to be heard, but being heard should not yield an effective veto power, as it did ths week.
"He’s the most powerful person in the courthouse," a judge said to me in another courthouse last week. He was pointing to a prosecutor as he spoke. The prosecutor would not budge. He was insisting that my client plead guilty to charges carrying a mandatory minimum of one year in prison or go to trial. The judge wanted to do better, but, as the saying goes, the prosecutor controls the charges.
I simply don’t get it. A prosecutor has no client. He consults no one other than his conscience in deciding how to dispose of a case short of trial. When I ask to speak to the prosecutor‘s client, just as I am obliged to speak to mine, I am met with the blank stare of a deer staring down headlights.
My client, a good man with a difficult past, entered painful nolo pleas today. We avoided the risk of trial and the possibility of a conviction on some lesser charge. We were confident about the more serious charges, the charges to which he was not required to enter a plea. Tonight he will be filled with regret and remorse. He faces a couple of years of time away from his children and family. I give him a shout out at the end of a long week, without naming him.
There is a fearsome asymmetry in the criminal courts. I am not sure it always serves justice. It seems wrong to let prosecutors have more power than judges in a courtroom. And it seems even more wrong the prosecutors can whatsoever strikes their fancy, or their taste, and call it the will of the state. Oz anyone?