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I think it may be one of two things: 1) any death during the commission of another felony = murder 2) There's something where its a murder charge if a firefighter dies fighting a fire you caused, even if that death isn't strictly from the fire.
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Feb 4, 2020 22:41
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Yeah in ordinary circumstances it's a bit weird but there's reasonable policy reasons why you'd want to go hard on people who start fires that get people killed. I think in the UK it would just be Arson with the resulting death skyrocketing you up the sentencing guidelines.
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Feb 4, 2020 23:15
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BonerGhost posted:Maybe a felony murder thing? I always wondered about that as well; how do you try & convict someone for a murder that occurred while they were doing a different crime but has a long af kill chain and no intent? Is it some sort of negligent homicide? Yes. The underlying theory is that the defendant was acting illegally in a dangerous way (most jurisdictions require the felony to be a violent felony to trigger the rule) and that, as a result, the defendant was on notice that somebody might get killed. So if somebody does get killed, it's the defendant's fault. It certainly is the defendant's fault more than anybody else around...
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Feb 4, 2020 23:20
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Nice piece of fish posted:Fuuuuuck that's hard. That'd be a two year max over here, likely 12 months at the outset and turning himself in when the cops would otherwise not get him would be worth a max of 1/3 reduction, so probably 8 months hard time. But then employers wouldn't necessarily know he was a convict either, since background checks are only allowed for pretty much security and child care jobs. Yeah I have been turning this in my mind all morning and I can't see how this could possibly be a murder in Canada. Likely unlawful act manslaughter or criminal negligence causing death. Seems like guy has a really bad lawyer in the first instance.
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Feb 4, 2020 23:21
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thehoodie posted:Yeah I have been turning this in my mind all morning and I can't see how this could possibly be a murder in Canada. Likely unlawful act manslaughter or criminal negligence causing death. Seems like guy has a really bad lawyer in the first instance. Canada found the felony murder rule to be a violation of the Charter in 1990 (R v. Martineau), so yes. I believe you are correct re: unlawful act manslaughter or negligent homicide.
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Feb 5, 2020 00:03
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ulmont posted:Yes. The underlying theory is that the defendant was acting illegally in a dangerous way (most jurisdictions require the felony to be a violent felony to trigger the rule) and that, as a result, the defendant was on notice that somebody might get killed. So if somebody does get killed, it's the defendant's fault. It certainly is the defendant's fault more than anybody else around... I think what's tripping me up is that the penalty for involuntary manslaughter in the commission of a felony could be enhanced from the one for plain involuntary manslaughter, no? So why not do that, instead of misidentifying a negligent crime as one of specific, premeditated intent? It seems to me that it would be more difficult for states to enact penalties equivalent to 1d murder for enhanced manslaughter than it is to pretend it's magically this other crime, which makes me think felony murder is an end run around the state's obligation to prove all the elements.
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Feb 5, 2020 01:07
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Should prosecutors be so directly accountable to the political process?
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Feb 5, 2020 01:07
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BonerGhost posted:I think what's tripping me up is that the penalty for involuntary manslaughter in the commission of a felony could be enhanced from the one for plain involuntary manslaughter, no? So why not do that, instead of misidentifying a negligent crime as one of specific, premeditated intent? It seems to me that it would be more difficult for states to enact penalties equivalent to 1d murder for enhanced manslaughter than it is to pretend it's magically this other crime, which makes me think felony murder is an end run around the state's obligation to prove all the elements. Ok, 3 things. 1. Historically, felonies were connected with capital punishment, even if all felonies weren't necessarily capital crimes, and so saying "ok, death in the commission of a felony = murder" wasn't that big a sentence enhancement since the punishment for attempted felony was quite often capital. 2. What mens rea is required for your variation of "unlawful act" manslaughter? Because the mens rea required for our "misdemeanor manslaughter" - essentially the mens rea required for the predicate misdemeanor - is exactly the same mens rea as required for our "felony murder" - the mens rea for the predicate felony. So our "felony murder" is exactly the same as a sentence enhancement for "misdemeanor manslaughter." 3. I think it would take 30 seconds for most state legislatures to enact penalties equivalent to 1d murder for enhanced manslaughter. These are the people that say you should be thrown in prison for life for a third shoplifting offense, after all.
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Feb 5, 2020 04:52
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blarzgh posted:So, in summation, I think prosecutorial discretion is "fine and good" as its a necessary gear in the machinery, and, in the right hands it can lead to more just results (in many people's minds), and - like literally anything of power or influence - in the wrong hands can lead to injustice (in many people's minds). Arcturas posted:Depends where you live and the quality of the elected officials. Thanks to both of you for these very good responses. I would like to clarify that I am thinking not only of the prosecutor's decision whether or not to prosecute at all, but also of their choice in exactly what charges to bring. My impression is that a major component of the problem with prosecutorial discretion is the modern era (in the US) of the vast majority of convictions being obtained by plea bargain rather than a trial, and another problem is the close relationship that prosecutors develop (by necessity) with the police, who themselves have an understandably strong desire to see the suspect they've offered up convicted. Both to validate their work, and to avoid "wasting" work offering up someone whom the prosecutor then declines to prosecute. So while I immediately agree with the need, as you've laid out, to have someone who isn't the police and also isn't the judge to decide what to charge a suspect with, I think that the political influence on that prosecutor is bad, and I also think that the intense pressure that suspects in custody now experience to plead guilty to a deal rather than risk a trial (and, often, much longer imprisonment awaiting trial, especially if they can't afford cash bail or know their family will suffer having paid cash bail) necessarily results in a lot of injustice, but I have the impression our system is rewarding prosecutors for aggressively pursuing plea deals with little regard to what charges would actually be justified (not "would probably prevail in trial" or "would scare the defendant enough to cop a plea" but "would serve justice"). Where I get lost is in trying to figure out what would be better. It seems like we have too many suspects to afford to try them all or even like 20% of them, and if we don't elect DA's, are we just going to have some civil authority appoint them, like a governor or mayor, and would that be any better, especially if it's the same people who appoint judges? (when the judges aren't also elected, which.. yeah that's a related kettle of fish, eh?)
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Feb 5, 2020 05:08
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It is worth emphasizing that prosecutorial and enforcement resources are also deeply underfunded (and misfunded) in the US, though ofc not to the same extent or in the same way as public defense or rehabilitation programs.
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Feb 5, 2020 05:30
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I'm sure that is a strong factor too. A prosecutor wants to get a guilty plea not only because it's easier than a conviction by trial, but because it's far cheaper, and they lack the resources to bring all or even just a large minority of charges through a trial. To me though this points not just to underfunding of criminal justice (which is rampant) but also very much Arcturas posted:the legislature keeps passing hard-on-crime poo poo and never repealing crimes And more broadly a society-wide disease in which we expect the criminal justice system to handle problems that ought to be handled differently (drug addiction, untreated mental illness, poverty...) and the response from politicians is to pass crime bills rather than fund programs.
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Feb 5, 2020 05:40
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Nice piece of fish posted:Fuuuuuck that's hard. That'd be a two year max over here, likely 12 months at the outset and turning himself in when the cops would otherwise not get him would be worth a max of 1/3 reduction, so probably 8 months hard time. But then employers wouldn't necessarily know he was a convict either, since background checks are only allowed for pretty much security and child care jobs. California really loved firefighters. He might have had a chance at trial (I was not the trial attorney, got him later), but when offered probation v. 15 to life, how the gently caress do you not chose probation. We just got rid of felony murder here though. Edit: for good reason, the people of California hate the poo poo out of people who start fires. No elected DA was going to give a break to a man who started a fire that burned down a bunch of houses and killed firefighters. I'm shocked the elected judge did it, as he was full tough on crime and poo poo. nm fucked around with this message at 05:57 on Feb 5, 2020 |
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Feb 5, 2020 05:50
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ulmont posted:Ok, 3 things. To be clear, I don't think felony murder should exist. Manslaughter with a predicate misdemeanor is different than murder requiring only a predicate felony because the mens rea for manslaughter already allows for recklessness or negligence. Murder specifically requires intent, and words mean things  . I think if it truly is no sweat to just enhance punishments for what is actually manslaughter in commission of a felony, legislatures wouldn't be calling it felony murder.For example, in Nebraska, acts against pregnant women have punishments enhanced to the next highest class. However, if you do a Class IIA assault by strangulation on a pregnant woman, you just get the Class II punishment, you aren't charged and convicted of 1d sexual assault because they're different crimes.
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Feb 5, 2020 07:11
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Leperflesh posted:I'm sure that is a strong factor too. A prosecutor wants to get a guilty plea not only because it's easier than a conviction by trial, but because it's far cheaper, and they lack the resources to bring all or even just a large minority of charges through a trial. Yeah, I mean, like, I think you need to define what you mean by "the problem of prosecutorial discretion". Because right now it feels like you're grumpy about a mish-mash of: defendants receiving harsher sentences than you believe would serve the interests of justice; defendants who might have a valid defense being pressured into a plea bargain (valid defense can include either a defendant who is guilty but only of a lesser charge or a defendant who is factually innocent); defendants who are factually innocent but but cannot afford a defense and so plead guilty; defendants who are factually innocent but the disruption caused by being charged leads to a loss of job or other hardships that may or may not feed into a later decision to plead guilty; defendants who could be rehabilitated getting harsh prison sentences for incapacitative purposes without any rehabilitation; defendants with mental health or substance abuse problems not getting treatment; a belief that individuals with mental health or substance abuse problems should not, as a moral matter, be subject to criminal prosecution; it would be cheaper to address these problems through other means; etc etc. Those are separate, but related, problems. And I don't know which of them you're concerned with. What I'll say is that: - Nearly all prosecutors I know believe that the overwhelming majority of criminal defendants are guilty of some crime, and in fact the crime they are charged with. - Nearly all defendants are, in fact, actually guilty of a crime. This is almost always some variety of the crime they are charged with, even if not quite as serious as the highest-level crime they are charged with. (Defense attorneys will typically admit this, and their job is to make the government prove it. This goes hand-in-hand with overcriminalization.) - Nearly all prosecutors I know charge the most serious crime they believe they have a reasonable chance to convict. This standard changes by office and by mandate from their superiors. (E.g. our local US Attorney's office only charges crimes they believe they have a 90% chance of success at trial. They typically believe the defendant is guilty in other cases, but if it falls below their standard of proof they won't charge.) - Most prosecutors hate charging bullshit crimes. Weed offenses, minor traffic tickets, whatever. But when charged it's typically because some combination of a policy mandate from above (weed or petty immigration charges from federal prosecutors - Jeff Sessions made that a priority so even if individual prosecutors thought it was dumb, they did not feel they had a choice) or they feel obliged to charge what the police officer wants due to the power dynamic between the police department and relevant prosecutorial agency (city-level prosecutors who only have jurisdiction to charge misdemeanors and below, and whose directive is to handle traffic offenses, may charge people with traffic offenses even when it probably would have been best for the cop to let something go with a warning). - Nearly all prosecutors I know take it very seriously when they see problems with one of their cases and will dismiss cases where they have doubts about their ability to prove the defendant committed the crime or, more seriously, where they have doubts that the defendant actually committed the crime. But I'm lucky enough to live in a city and work with prosecutors from largely moral and well-run prosecutors offices. There are offices in other counties in my state that make...questionable decisions and are unwilling to reevaluate cases. That's awful, but it's often ingrained culture. - Line-level prosecutors want to reach the right outcome in any given case, but they do not view their role as defining policy or creating sweeping social change. They're too busy and too low-level to make decisions about whether or not the system is failing mentally ill defendants and what to do about it. You might get some traction on that at the highest levels of a DA's office (administrators in a county DA's office, or more typically the county DA themselves). Work in that space typically requires cooperation between the highest levels of a prosecuting unit (County DA, USAO), the local judiciary (a judge or two who decides they have the political cover and moral justification to act), and another political entity with the cash or resources to act. For instance, in my state mental health courts were largely started by judges, prosecutors, and defense counsel who got together with some local politicians to see if there was a better solution rather than incarcerating low-level offenders with mental health problems whose recidivism rate was particularly high due to their mental health problems. The prosecutors themselves couldn't start that process. They don't have funding for mental health treatment and providing treatment is not something they can do. But with a county that was willing to set up treatment programs, defense attorneys who were willing to pressure their clients to accept treatment instead of jail (not always an easy sell), judges who were willing to divert defendants into treatment and rehabilitation programs at a pre-trial stage and provide heightened tracking of the defendants through the process, these actors were able to work together to make things slightly better. Anyways, those are just some thoughts off the top of my head. I'd also like to go back to your post and highlight one of your points that I think you might want to either elaborate on or think more about : "My impression is that a major component of the problem with prosecutorial discretion is the modern era (in the US) of the vast majority of convictions being obtained by plea bargain rather than a trial." Is that a problem? If so, why? Would it be a good thing or a bad thing if more defendants went to trial? Would it be a good thing or a bad thing if a greater or lesser percentage of defendants went to trial? Why? What's the inherent value in sending a defendant to trial? I can see advantages to more trials - we tend to be more comfortable with the idea that a jury has found a defendant guilty than with the idea that a defendant just says "I did it" and gets sentenced, because we worry that a defendant will give up and admit guilt when they are not guilty. But it's also easier for a defendant to claim they aren't guilty and were forced to admit guilty because they had no choice for whatever reasons, than it is for a defendant to tell a reporter that they aren't guilty and a whole jury was bamboozled.
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Feb 5, 2020 07:16
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In case anyone was on the edge of their seat with the case of the lady bothering Outrail on a Sunday evening about who lives in his house: They got the wrong address (Avenue instead of Street). But speaking to the bank, apparently they will send out a third party to a house they hold the mortgage for reasons like: The got an alarm of some kind and couldn't get a hold of the landlord, they believe the house is abandoned and its cold enough to bust pipes, if they aren't getting payments and want to check the house is okay, if the landlords phone isn't answering. Which is pretty reasonable I guess but noone should be knocking on my back door at 6pm on the sabbath. That's me time.
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Feb 5, 2020 07:38
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Outrail posted:They got the wrong address (Avenue instead of Street). We solved another one boys, Legal Questions Thread - 1,000m0, Crime - 0!
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Feb 5, 2020 17:52
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Arcturas posted:Anyways, those are just some thoughts off the top of my head. I'd also like to go back to your post and highlight one of your points that I think you might want to either elaborate on or think more about : "My impression is that a major component of the problem with prosecutorial discretion is the modern era (in the US) of the vast majority of convictions being obtained by plea bargain rather than a trial." First off, read all of the post, because its all great information, and a look behind the curtain that most people don't get/don't care to get. To the point specifically about plea bargains vs. trial, and to a lot of the perception around criminal justice, I want to expand on this: blarzgh posted:The platonic ideal is a system where every result is just for everyone, but the reality of criminal justice (and the justice system in general) is that its basically impossible for both sides of a Court case to say, "well, I'm happy with how that turned out." Its the nature of a system where two opposing sides submit their fate to a third, and that always means one is going to be unhappy. Arcturas pointed out that in the overwhelming majority of criminal cases, defendants are absolutely guilty, and in all cases, prosecutors are overworked. Plea bargains are excellent for this huge swath of cases, because it allows both sides to compromise, and saves resources for everyone. What you're really talking about are the relatively few cases where the Defendant's guilt is in doubt, but the risk of the conviction is high enough that they'd be willing to take a plea instead of try their case to a jury. In cases like that, it helps to step back for a moment, and consider that maybe they are guilty. And to consider that maybe they're not, but the evidence is so strong for whatever reason that they might be found guilty anyways. But more than it helping to consider those two realities simultaneously, its almost necessary for a unified philosophical theory to accept that you will probably never know for sure. Cases where they obviously did the crime or obviously didn't are the easy ones to believe something about. Cases where its not so clear are the ones where our prejudices and inherent biases will fill in the gaps to form what we believe. Its really easy to form an opinion about a case; its much harder to do so with any accuracy and authority from afar. Hell, even the people closest to a case and the facts have differing opinions about what happened. But the fact is that whether or not they did it is something we can never really know; its only something we can believe. What we can say, however, is that in these cases the people with the greatest access to information, and in the best position to weigh the risks and potential rewards of taking a plea bargain versus fighting the case are the defendants charged with the crime and their attorneys and prosecutors. To be clear, I'm NOT saying the result always comes out right. What I am saying is that if you designed a system from the bottom up, keeping in mind that at the highest 1% of contested cases you needed to put the decision of how to proceed, when the outcome is unknown, in the hands of the person who was in the best position to assess the pros and cons and weigh the chances of getting the outcome they want, you would put that decision in the hands of the prosecution and the defendant. If the ideal is a world where the fewest injustices occur, its probably a world where the opposing sides who are the most directly involved in a matter have the power to resolve it between themselves.
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Feb 5, 2020 18:13
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Those two responses were really good, thank you. I have more to think about. I don't have time for a giant reply at the moment, so I'll make a couple of more offhand comments with the caveat that there's a lot more I'd like to address or discuss. First: I don't think it's possible to measure how many people take plea bargains but are actually innocent (or would prevail at trial, which I think you all understand is important to happen when evidence is weak even if the defendant is actually guilty). Any way you'd try to measure this relies on either presuming those who pled guilty were actually guilty, or, guessing at how many who plead guilty weren't guilty, or, presuming that evidence untested by a trial was nevertheless proof of guilt. Each of these presumptions has problems. Second: I think the practice of nearly all cases being plea bargained rather than tried has systematic effects. Obviously it saves money, and maybe that's good. But I think it creates some pressures: first, I think it reduces the degree to which the evidence that prosecutors rely on needs to be robust, because prosecutors can broadly assume that most evidence will go unchallenged. That in turn reduces pressure on police to be diligently careful about collecting evidence that will be admissible and hold up at trial, because most evidence gathered only has to convince a prosecutor and, perhaps, a public defender. Third: I may have an incorrect impression, but my understanding is that the prosecutor has access to the evidence, has comparatively more leisure to make decisions, and then a defendant's representative may only have access to the evidence for a short period before they need to advise their client whether to plead guilty in order to accept an offered plea bargain. And fourth: I suspect public defenders and defense attorneys are just as susceptible to the presumption of guilt of their client as prosecutors, on the basis of "well the cops think he did it so he probably did it" plus "almost everyone I've represented was guilty so this guy is probably guilty too." The ubiquity of a plea bargain being offered may serve to reinforce this impression if it leads to a higher percentage of people pleading guilty, in that a lower percentage of a defense attorney's clients ever require them to actively argue for their client's defense, and in preparation to doing so, seriously consider their possible innocence or that they properly should be convicted of a lesser crime. All that said, I'm not convinced that plea bargains are definitely universally bad or that we're doing things wrong: if I were, I wouldn't have asked. I appreciate the education. I don't think I'd really considered that the existence of a plea bargain system permits defendants and their representatives an opportunity to negotiate in their favor, where "plead guilty or be tried for X, no other offer" takes away that opportunity. And that's interesting.
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Feb 5, 2020 21:55
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Again, I don't have answers for you, but I think one thing you're struggling with is the N guilty men problem. What error rate is acceptable in our system? What are the negative externalities we're willing to accept in favor of cost and a workable system? Leperflesh posted:Second: I think the practice of nearly all cases being plea bargained rather than tried has systematic effects. Obviously it saves money, and maybe that's good. But I think it creates some pressures: first, I think it reduces the degree to which the evidence that prosecutors rely on needs to be robust, because prosecutors can broadly assume that most evidence will go unchallenged. That in turn reduces pressure on police to be diligently careful about collecting evidence that will be admissible and hold up at trial, because most evidence gathered only has to convince a prosecutor and, perhaps, a public defender. To cherry pick only part of your thoughts to respond to, I very much doubt this is true. Prosecutors and defense counsel negotiate in the shadow of trial. If prosecutors don't have admissible evidence on a case, defense counsel know it and will laugh at plea deals contingent on getting that evidence in.
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Feb 5, 2020 22:23
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Arcturas posted:Again, I don't have answers for you, but I think one thing you're struggling with is the N guilty men problem. What error rate is acceptable in our system? What are the negative externalities we're willing to accept in favor of cost and a workable system? I used to wring my hands about this question until I realized it's immaterial, because it's impossible to measure. We can never know how many innocent people we're convicting; at best, we can prove it's a nonzero number by later exonerating people with incontrovertable proof they were innocent, such as the innocence project, but that merely sets a lower bound, and dna evidence isn't available in the majority of cases. If we can't know, then the goal instead is to do the best we possibly can given limited resources; and so to me, the question becomes "are we doing the best we can" rather than "are we meeting some arbitrary and impossible to measure standard for 'good enough'".
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Feb 5, 2020 22:39
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The core issue with plea bargains isn't the cases where prosecutors and defendants negotiate in the shadow of iffy evidence. It's the cases where prosecutors and defendants negotiate in the shadow of iffy evidence, and overcharging of the defendant to make the end result of refusing to bargain a grossly disproportionate charge and sentence even if he is guilty. You can negotiate by offering lower charges/sentences, and that's iffy but potentially justifiable. Negotiating by overcharging as a policy to discourage people from contesting their innocence is not.
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Feb 5, 2020 22:48
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Leperflesh posted:I think it reduces the degree to which the evidence that prosecutors rely on needs to be robust, because prosecutors can broadly assume that most evidence will go unchallenged. That in turn reduces pressure on police to be diligently careful about collecting evidence that will be admissible and hold up at trial, because most evidence gathered only has to convince a prosecutor and, perhaps, a public defender. A couple of mechanics you may not be familiar with: 1) Under the rules of criminal procedure, the prosecution has to deliver ALLL of its evidence to the defense team well in advance of the trial. The system is set up so that both sides should have fundamentally equal access and opportunity to inspect and quantify the evidence . 2) Suppression hearings: Defendants can, well in advance of trial, ask the Court to keep out certain evidence on the basis of a faulty search, or other grounds. Both sides are generally going to know what evidence is staying out and what evidence will get to go in front of the jury well in advance of trial. Leperflesh posted:And fourth: I suspect public defenders and defense attorneys are just as susceptible to the presumption of guilt of their client as prosecutors, on the basis of "well the cops think he did it so he probably did it" plus "almost everyone I've represented was guilty so this guy is probably guilty too." The ubiquity of a plea bargain being offered may serve to reinforce this impression. I think this bias may exist (not my area, but I know enough criminal folks to opine) but not quite in the form or function you suspect. First, you have to understand that the ideal scenario is that a client tells you exactly what happened, and tells you the truth. Because of the Attorney-client privilege, they can absolutely tell you, "yes, I did it" and you can't divulge that to the other side, and you still have to try to get them off as best you can. And you know what? They do! In my limited understanding (and I hope someone else chimes in and clarifies or rebuts this), any suspicion or bias that a new client who is telling you, "I didn't do it!" is lying to you has little or nothing to do with the prevalence of plea bargaining, and has nearly everything to do with having had hundreds of clients before them say, "I didn't do it!" when it turned out they definitely did it, lol. The reason I make both points in conjunction, however, is that it doesn't matter! Basically every good defense attorney is going to try their damndest for their client, guilty or not. They really really don't give a poo poo if the client is guilty. They negotiate plea bargains, and evaluate the case solely on whether the evidence is strong enough to convict. Guilty, innocent, doesn't mean a poo poo to them. Their job is to stop the State from doing its job, no matter what. The system is supposed to function on the gears of advocacy for the sake of creating the most justice. The lawyer who represents a serial rapist, neo-nazi, klan member is supposed to try just as hard as the lawyer who represents the mother of 7 who's being framed by her abusive ex on a possession charge. The system depends on its advocates to not pick and choose which cases to care more or less about. If both the prosecution and the defense are trying 100% on every case, regardless of the circumstances, then no case will be decided by an individual who chose to only give 50% because they don't like their client. In those situations, that lawyer who's rolling over on purpose is choosing their own justice instead of letting The People choose. And if the defense attorney lays down on his serial rapist, neo-nazi, klan member case, he makes the job of the State easier in the future, and cedes ground on behalf of all defendants everywhere, including the mother of 7. So, in short, I don't think Plea Bargains bias attorneys against their client, or for or against future plea bargains, nor do I think having a guilty or innocent client is even really a factor in assessing the strength of a client's case. As weird as that sounds, you have to remember that no matter how innocent your client proclaims to be, you still never really know for sure. Which is again, part of why it doesn't even matter.
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Feb 5, 2020 23:21
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blarzgh posted:
Maybe I'm misunderstanding, but I thought the defense attorneys job was to make the State DO its job of proving guilt beyond a reasonable doubt, the job of the State being some idea of Justice.
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Feb 6, 2020 07:15
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Carillon posted:Maybe I'm misunderstanding, but I thought the defense attorneys job was to make the State DO its job of proving guilt beyond a reasonable doubt, the job of the State being some idea of Justice. Hey hey, no philosophical semantics in here, get out! hyaaaah!!!
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Feb 6, 2020 15:34
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blarzgh posted:To be clear, I'm NOT saying the result always comes out right. What I am saying is that if you designed a system from the bottom up, keeping in mind that at the highest 1% of contested cases you needed to put the decision of how to proceed, when the outcome is unknown, in the hands of the person who was in the best position to assess the pros and cons and weigh the chances of getting the outcome they want, you would put that decision in the hands of the prosecution and the defendant. If the ideal is a world where the fewest injustices occur, its probably a world where the opposing sides who are the most directly involved in a matter have the power to resolve it between themselves. So maybe I completely missed the subtleties of the scenario, but isn't the entire point of the US system, where a judge/jury are brought in as [theoretical] neutral 3rd parties, to avoid this whole situation? I get that no system would ever be perfect, but I feel like a compromise between the two parties here would be the exact opposite of "justice" (whatever that may be), particularly given the presumption of innocence. I guess in my head, the scenario is that the defendant is either factually innocent but has a pile of "evidence" against them that is difficult to refute, or that the charges don't exactly fit the crime, but the details that would prove that are unavailable or unclear. I think my concern here is that you're forcing a defendant to plead to a lesser crime than what they're being accused of simply because they are unable to prove their innocence. Maybe looking at things a different way: wouldn't the possibility of a plea bargain, where the prosecution knows the outcome is uncertain, necessitate trumped up charges in order to arrive at their desired result? If we're calling this a negotiation, which is really what it is, you start high and negotiate down, right? The more I think about it, it kind of bothers me a bit that this is, basically, a negotiation. Where an individual is accused of something they didn't do, but has to basically choose the price they're willing to pay in order to make it go away. Whether or not they're guilty of some lesser crime seems irrelevant.
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Feb 6, 2020 15:58
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DaveSauce posted:So maybe I completely missed the subtleties of the scenario, but isn't the entire point of the US system, where a judge/jury are brought in as [theoretical] neutral 3rd parties, to avoid this whole situation? I get that no system would ever be perfect, but I feel like a compromise between the two parties here would be the exact opposite of "justice" (whatever that may be), particularly given the presumption of innocence. I guess the basic idea is that the truly innocent people would demand a trial no matter what, and that the police would only ever prosecute guilty people? Don't ask me to justify it, my country absolutely forbids plea bargains and negotiations with the prosecution.
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Feb 6, 2020 16:15
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DaveSauce posted:The more I think about it, it kind of bothers me a bit that this is, basically, a negotiation. Where an individual is accused of something they didn't do, but has to basically choose the price they're willing to pay in order to make it go away. Whether or not they're guilty of some lesser crime seems irrelevant. They don't have to pay the price, they don't have to negotiate. They have a choice to reject any and all plea offers outright, and go to a jury. Its a strange paradox to parse, though. "I didn't do the crime I'm accused of, however there is a ton of evidence against me for 'some reason'." There's not an easy answer, but the alternative where there are no plea bargains like in the Hinterlands with Fish, I guess is a world where a Defendant only has one choice, and thats to flip a coin and see what the jury comes back with. I guess I'm not understanding why forcing Defendants to roll the dice with the Jury is better than giving them a choice not to? Once again, I'm nowhere close to suggesting the system is perfect, or that injustices don't occur - we're humans, we can gently caress up anything if we try hard enough. I am saying that its defensible that giving Defendants some power over their own fate is better than it is bad.
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Feb 6, 2020 19:38
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Jury trials are expensive Unless you are just rolling with a PD I guess. I don’t know how PDs handle costs.
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Feb 6, 2020 19:40
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euphronius posted:Jury trials are expensive If a PD is appointed you don't pay them. They get a salary and their office absorbs costs (filing fees). I think most PDs offices have a budget for limited investigatory work.
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Feb 6, 2020 19:45
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Arcturas posted:If a PD is appointed you don't pay them. They get a salary and their office absorbs costs (filing fees). I think most PDs offices have a budget for limited investigatory work. Right the last sentence is what I’m referring to Could they pay for expert witnesses, jury consultants, crime reconstruction, etc etc ?
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Feb 6, 2020 19:46
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euphronius posted:Right the last sentence is what I’m referring to Generally not, though I know someone (neurologist) who will expert witness pro bono if a public defender asks, and I’m sure she’s not alone.
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Feb 6, 2020 19:51
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In theory the client doesn't have the means to pay for those things (which is why they qualify for the PD). I believe, but am not sure, that PDs offices have limited budgets for these sorts of things and the budgets are typically spread pretty thin so it's difficult to get those resources. Some cases likely qualify, others don't, largely by an internal priority set by the PD office. I think Nm worked as a PD in California, right? He might know. To speculate: expert witnesses - maybe, depends on case, cost, importance of the witness to the case, seriousness of the charges; jury consultants - almost certainly not, those are super expensive; crime reconstruction - no clue on cost/benefit/prevalence.
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Feb 6, 2020 20:02
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blarzgh posted:They don't have to pay the price, they don't have to negotiate. They have a choice to reject any and all plea offers outright, and go to a jury. Its a strange paradox to parse, though. "I didn't do the crime I'm accused of, however there is a ton of evidence against me for 'some reason'." There's not an easy answer, but the alternative where there are no plea bargains like in the Hinterlands with Fish, I guess is a world where a Defendant only has one choice, and thats to flip a coin and see what the jury comes back with. I mean yeah, it is an odd scenario, and I assumed that that we're talking about the edge cases. But given the consequences they're certainly worth thinking about. But it seems to me that the conversation is not about whether a jury would get it right. Rather, that the ability to offer a plea deal gives the prosecution a motive to try to prosecute where they otherwise wouldn't have a solid case. Let's face it, if you were given the choice of going to court for 1st degree murder, and it wasn't 100% certain that you'd win, you'd think long and hard about that plea deal even if you knew you were innocent. I feel like "choice" in this instance is like saying a person can choose to not give a mugger their wallet. Maybe the gun is loaded, maybe not, but do you really want to find out? And again, I'm in no way saying that this or any system is perfect. Just interested in the conversation and hoping to learn something.
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Feb 6, 2020 20:02
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I’m just saying not having the money to pay for a defense is a good reason to plea
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Feb 6, 2020 20:13
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blarzgh posted:They don't have to pay the price, they don't have to negotiate. They have a choice to reject any and all plea offers outright, and go to a jury. Its a strange paradox to parse, though. "I didn't do the crime I'm accused of, however there is a ton of evidence against me for 'some reason'." There's not an easy answer, but the alternative where there are no plea bargains like in the Hinterlands with Fish, I guess is a world where a Defendant only has one choice, and thats to flip a coin and see what the jury comes back with. How I understood the issue was does the existence of plea bargains incentivize prosecutors to overcharge as a negotiation tactic, or remove pressure (that would be stronger in a system without plea bargain) for prosecutors to only bring lesser charges that are a slam dunk? Starting high and working toward your actual goal is a useful negotiating tactic because it minimizes your goal in your adversary's mind, even if your adversary is aware of the tactic and knows you're using it. I can't imagine juries are immune to that effect, so if the prevalence of plea bargains does lead to overcharging, are defendants being prejudiced even in jury trials?
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Feb 6, 2020 20:13
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blarzgh posted:They don't have to pay the price, they don't have to negotiate. They have a choice to reject any and all plea offers outright, and go to a jury. Its a strange paradox to parse, though. "I didn't do the crime I'm accused of, however there is a ton of evidence against me for 'some reason'." There's not an easy answer, but the alternative where there are no plea bargains like in the Hinterlands with Fish, I guess is a world where a Defendant only has one choice, and thats to flip a coin and see what the jury comes back with. you are taking a very aggressively wrong view here; the danger does not come when there is "a ton of evidence" it comes when there's weak evidence. and again, you don't plea you might not get sentenced for the crime you're accused of, you may get sentenced for every charge the prosecutor can try and stack on top of it you are imagining plea bargaining taking place solely in a world where there is strong evidence of guilt and no overcharging, instead of "well i got one guy who says you did it, and yeah a jury might go the other way - but look at all this poo poo i'll tack on if you don't plea"
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Feb 6, 2020 20:13
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I guess I'm still fuzzy on exactly how much access and understanding of the evidence is available to a defendant and their lawyer at the point where a plea bargain is on the table. Isn't "admissibility" tested later, at the point where a judge is involved? Don't prosecutors typically offer a plea deal as a "take it or leave it, now" kind of thing, where they want to get a guilty plea without having to defend admissibility? Don't defendants have to wonder, hmm, they say there's three eye witnesses, what will they testify to, we have no idea, maybe they're all vague and unreliable or maybe there's a witness that any jury would find incredibly compelling... how could we guess which is the case? Perhaps a concrete example might help. We're in California. A person has been arrested for assault after a bar fight in which several people were seriously injured, but nobody died. There were people in the bar. The accused tells his public defender that someone else started the fight and he was only defending himself. The police report says that witnesses claim the suspect grabbed a whiskey bottle and smashed it over another man's head, but he says that didn't happen, and in fact, someone else attacked HIM with a bar stool. The suspect has been in jail for days before finally seeing his public defender (who he didn't request immediately) and he's already given unsupervised statements to the police regarding what happened, although he did not outright admit guilt he did admit to participating in the fight. DA can charge maybe simple assault, assault causing bodily harm, or aggravated assault. Battery or even assault with a deadly weapon are on the table too. Defendant's own statements would have him at worst be guilty of assault causing bodily harm, but he claims he was defending himself so in theory could be entirely innocent with a valid defense, and he possibly could beat even simple assault charges at trial, especially if he can find additional witnesses who would testify that all he did was defend himself using a minimum of force necessary. But an assistant DA can easily threaten aggravated assault with battery, and maybe argue that a whiskey bottle is a deadly weapon when smashed over someone's head (people have been killed that way), and the public defender has to advise his client that it's possible he could be convicted of aggravated assault, battery, and assault with a deadly weapon at trial if credible witnesses testify that he grabbed that whiskey bottle and smashed it over another man's head without justification. In California, simple assault is a misdemeanor. A judge could do as little as assess a $1000 fine for misdemeanor assault and then the defendant could walk away. He could get real jail time for felony convictions. What should he do? I think in this situation the suspect is under intense pressure to plead guilty to simple assault or even assault causing bodily harm, given he could wind up going home the next day; but be stuck with an unjust conviction if he's actually innocent. I think most any public defender would have to advise this client to take the plea bargain, even if they had a pretty good chance of beating the charges at trial, because of the huge difference in consequences between misdemeanors and felonies. (e. And to the question above: has the public defender had a chance, at this point, to interview witnesses? Were they all drunk? There's video from the bar, but does it actually show the defendant striking someone? How much time do they really have to make a decision before the prosecutor can say "ok too late, we're pressing felony charges plus add-ons"?) And I don't think the DA nor the public defenders office particularly want to take bar fights to trial, especially when nobody died or suffered crippling injuries, due to costs etc., especially in busy underfunded jurisdictions, so they're all motivated to get a plea done regardless of the likelihood that the suspect is entirely innocent? I get that in this system the defendant is being given an opportunity to negotiate, but I feel like in these negotiations, the State wields immense power while even with a public defender, the defendant has almost no power. The consequences of fighting back and losing here are enormous and life-changing for the defendant. Is this justice? Any of us could potentially be caught up in a fracas in a bar, have done nothing wrong, but in the confusion of witnesses and perhaps a zealous cop, find ourselves facing a decision like this. Nice piece of fish posted:Don't ask me to justify it, my country absolutely forbids plea bargains and negotiations with the prosecution. This is interesting. What country are you in? In the above scenario, absent any ability to negotiate, how would things go? Does the suspect just get a single choice: this is the charge, how do you plea? I suppose they still face a choice, especially if it's a felony charge, of whether to try to fight it or not: but at least they're never being presented a strong motivation to plead guilty when they believe themselves innocent just to avoid the jeopardy of a much more severe charge. Right? Leperflesh fucked around with this message at 20:29 on Feb 6, 2020 |
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Feb 6, 2020 20:24
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Leperflesh posted:This is interesting. What country are you in? In the above scenario, absent any ability to negotiate, how would things go? Does the suspect just get a single choice: this is the charge, how do you plea? I suppose they still face a choice, especially if it's a felony charge, of whether to try to fight it or not: but at least they're never being presented a strong motivation to plead guilty when they believe themselves innocent just to avoid the jeopardy of a much more severe charge. Right? Norway. Based on the above scenario? The police would gather evidence, interview witnesses and make arrests. The suspect might be in jail for days, but would be assigned a public defender once it's clear the police have an interest in holding him for a bit. For the first official interview a public defender (potentially any attorney of the suspect's choice) would accompany him, but standard procedure for the police these days is to conduct an immediate interview in the aftermath, usually in the car on the way in, on tape. They often forget our Miranda warning version. This never matters. Due to human rights laws, the suspect is evaluated for release after 24 hours and is extremely likely to be released within 36. The suspect - who is automatically considered "charged" with the crime at this point - will not normally be held for more than 48 without appearing before a judge with his defender if the police want to hold him until trial. For a serious offense, 4 weeks jail would be granted. For a bar fight that would be extremely unlikely. The prosecutor would then review the evidence. Usually the suspect will be given an opportunity to give a new statement, with his public defender. The prosecutor has an ethical duty to ensure that the criminal case is as well-evidenced as it can be. The prosecutor makes a determination on whether to proceed to trial, if the matter can be settled with a fine and generally what statute to subsume the crime under, or if the charges will be dropped. Charges are frequently dropped when the evidence is shaky. The prosecutor has a duty to only pursue the cases he is professionally and ethically convinced are worthy of trial. This is mostly why a huge number of cases end up being dropped, or de-penalized through a prosecutor's waiver. The prosecution is supposed to consider this and take this responsibility seriously, and most do. At no point will the public defender be involved in any of the pre trial determination. The public defender will be given a copy of the police file and the documented evidence. Not usually in a timely fashion. Before trial, there are a number of things that can happen related to fuckups with time limits and technical lawyerism to do with criminal procedure, where the public defender can with careful manouvering gently caress up a formality for the police. I have, totally works. Then the prosecutor gets all his ducks in a row and sends the case to the court. The criminal defendant appears before a judge and two lay judges, and is asked by the court if they plead guilty. The answer can be yes, no and maybe. The latter is most common. The defender is not allowed to instruct the defendant in what to say. It's usually fairly obvious if they have, which is a guaranteed conviction. Regardless of the plea (yea, nay, may?), unless the evidence reaches a certain criminal procedure standard of "loving duh, guilty!" the court reviews the evidence and holds a full trial to make sure it makes the right decision. The judge is in complete charge of this process. Depending on the situation, a criminal defendant can be rewarded up to 1/3 reduction in sentence for helping the police with evidence, speeding up the trial and/or confessing beforehand. Confessing at trial helps, but nowhere near as much. There's a special "confession trial" type deal that is sometimes used for the purpose of locking in the 1/3 reduction, at the prosecutor's and the court's discretion, when they confess immediately. The court then renders verdict based on the evidence. It may under certain circumstances be something fairly different from what the prosecutor thinks was right, but not very different without needing a full new investigation and trial (which is often impossible, due to our weird double jeopardy rules). The judge can order new evidence be followed, order more investigation, they formally own the case once the prosecutor releases it to the court, but normally the trial proceeds to its conclusion. Usually the defender's job is to try and reduce the sentence more than anything. This sometimes works. The prosecution wins maybe 98% of cases they take to court. That's the short version. Feel free to ask if you want more detail. As an aside, I was the defender couple of years back for a guy who was arrested for assault after a bar fight in which several people were seriously injured, who claimed he was only defending himself. He was co-indicted with another suspect and they were tried together. Prosecution tried to play the defendants against eachother, which didn't really work. I mean, the other guy threw my guy under the bus completely, but the (completely useless, drunk and forgetful) witnesses pretty much told a different story, and they were all the prosecution's witnesses so... Anyway, got him acquitted for lack of evidence of him even being a perp in all that confusion, because the lay judges loving hated the other guy. So, it's actually possible to get acquitted in that situation, if your lawyer has a pulse and the prosecution did a poo poo job prepping witnesses. Nice piece of fish fucked around with this message at 21:45 on Feb 6, 2020 |
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Feb 6, 2020 21:42
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Leperflesh posted:I feel like in these negotiations, the State wields immense power while even with a public defender, the defendant has almost no power. The consequences of fighting back and losing here are enormous and life-changing for the defendant. Is this justice? Welcome to literally everything in America (mostly for the poor/minorities, but often for everyone else too). It's common with criminal prosecution, but also with almost every other power imbalance. Cop pulls you over and searches your car, and feels you up while he's at it? Suck it up buttercup, even if there's no probable cause and the cop is abusive your choice is to comply and maybe file a lawsuit later, which has a terrible chance of success and success means getting a paltry settlement paid for out of the police agency's insurance carrier which is ultimately paid by taxpayers. Otherwise you're resisting arrest and likely beaten or at a minimum thrown in jail overnight/over the weekend/for a few weeks until charges are "mysteriously" dropped. Taxman cometh and decides to pick on you? Welcome to audit-town, where your choice is to pay a lawyer/CPA more money than you would have to pay in taxes, to fight a possibly-losing battle, or to pay taxes you might not owe. TSA decides you look brown/bearded/have a shawl on/look shifty/whatever? Guess who's missing their flight? And here you have literally no recourse. Other than throwing a fit and we're back in resisting arrest-town. Your boss decides to sexually harass you? It's taken us decades to get to a point where powerful white actresses can speak out about it. Everyone else has the choice to be harassed, try to file an HR complaint (success depends on quality of HR department), or file a lawsuit. That they can't pay a lawyer for and have to get someone to take the case on contingency, and we're back to dickering over settlement value based on chance of success with limited information. I guess what I'm saying is that the plea bargain process isn't really that different than most other situations where you're subject to overwhelming power. Does plea bargaining make that better or worse? I'm not sure, but I lean towards Blarzgh's position. Basically, what's the alternative? Every prosecutor takes ever case to trial? Enjoy having the criminal justice system grind to a halt as we can prosecute approximately 10% of the cases that are currently getting prosecuted. That means some combination of: cops don't arrest people, cops don't respond to calls, cops arrest people and you sit in jail for literal years until your case can be tried, or the legislature drastically increases funding to both PD offices and prosecutors' offices. To hit other points at random: - Most prosecutors don't charge cases where there is "weak evidence." They have way too many cases sitting in the screening pile with good evidence to waste their time on cases with weak evidence. Could they charge those, or over-charge in the interests of getting a plea deal? Sure. But what's the incentive? In the analogy with the mugger, the mugger gets your wallet. What does the prosecutor get out of it? They can just dismiss the case or tell the cop to get better evidence. Sometimes they have numbers they're expected to hit, but the on-the-ground reality is that they can almost always hit those targets by resolving other cases instead of picking up lovely cases. (Disclaimer about this varying drastically by jurisdiction and state.) - In the example about the bar fight, what do you think is the "just result"? Whose responsibility is it to get the "just result"? Hitting someone with a whiskey bottle is assault with a deadly weapon. It's assault (hitting someone) with a weapon (whiskey bottle) that was used in such a way that it was capable of causing and likely to cause death or great bodily injury (hitting someone in the head). People have absolutely been killed when hit in the head by a whiskey bottle. So the prosecutor has witness statements saying the defendant committed assault with a deadly weapon. They absolutely should charge that crime. Why shouldn't they? If the defendant has a defense (self-defense) they can raise that, either before the jury or in plea negotiations, and the PD and the prosecutor can negotiate over the likely success of the defense and the likelihood of success will weigh in their advice to their client/willingness to offer a lesser plea. Again, prosecutors and PDs are generally very well informed about what is likely admissible, what a judge will let in, what they won't. So negotiations always happen in the shadow of trial and the shadow of what will convince a jury and what won't. "How much time do they really have to make a decision before the prosecutor can say too late?" Varies by office, most prosecutors give defendants plenty of time to consider offers. Offers will get a little worse later on, if the defendant makes the prosecutor go through needless work (asks for a preliminary hearing when it's obvious that there is probable cause) or refuses to even consider an offer until the eve of trial (at which point the prosecutor just has less incentive to plead out, so why would they still give a good offer). Maybe some more context will help. I don't practice in this area, but my vague understanding of the criminal process in my state (THIS VARIES DRASTICALLY BY STATE) is: - Events happen. - Police investigate, conclude that a crime was committed. - Police collect evidence, write police reports, etc. - Police make an arrest, refer the matter to the prosecutors. - At some point before this prosecutors might be involved to help officers draft an affidavit to get a warrant. Might not. - Prosecutors "screen" the case to decide what charges to file. Screening tends to consist of reviewing the police reports and written evidence, plus statements by officers, possibly legal research on the elements though the prosecutors almost always know these by heart. At this stage the prosecutors generally believe the officers - they have little reason not to and in their experience cops tend to tell the truth. (- I know, I know, ACAB yadda yadda. But, first, this is a few bad apples situation and most prosecutors deal with the better cops 99% of the time, and, 99% of the time the cops are telling things as they understand them. And, second, prosecutors pretty quickly get a sense of the bad cops and will weigh the specific officers' credibility and tendencies in the screening process.) - Prosecutors file charges. In my state that's called filing an information, in other states it's a grand jury indictment. As I said in my earlier comment, these are almost always the most serious charges the prosecutors think they can prove at [insert office standard]. There's not really an incentive to throw lovely charges in there. - The "what to charge" discussion changes in politically charged or otherwise sensitive cases. - Defendant makes an initial appearance in court, where the charges are presented and the defendant has an opportunity to request a public defender or hire their own attorney. - Defendant has typically been sitting in jail up to this point. - Prosecutor will typically make a plea offer at this stage. PD can advise the client to take it, to counter with something lesser, etc. The "facts" considered here are: prosecutor has the info in the file, may have spoken to a cop, may have spoken to a witness; PD has spoken to their client, knows what the client said happened, PD has spoken to the prosecutor and hears the prosecutor's version of what the other evidence is. - Defendant will decide whether to plead guilty or not guilty. Unless they're taking the opening plea offer, it'll be a not guilty plea that can later be retracted if they plead out. - I think, but am not sure, that the judge will typically make a decision whether to let the defendant go home based on a promise that they'll appear at future court dates (released on recognizance), require the defendant sit in jail until trial, or require the defendant sit in jail until trial unless the defendant posts a bond (bail). - The way bail works, a judge will say - you need to show up to your criminal trial. I'm not sure you will. So you have to sit in jail unless you can put a pile of money on the table. If you show up to trial, you get all that money back. If you don't, you forfeit the money. It's there to enforce your promise that you'll show up. So the reason bond amounts are set high, and painfully high, is deliberate and to encourage defendants to show up for a criminal trial where they might be thrown in prison. But because the amounts are painfully high, it may be hard for a defendant to be able to put that amount of money together. So they can borrow that money from a bail bond company and pay a certain amount (usually 10%) to the bondsman, in exchange for the bondsman putting the full bail amount on the table and depositing it with the court. If the defendant shows up after getting a bail bond, they don't get their 10% back because that's the bondsman's fee. The bondsman gets the remainder of the cash back. If the defendant doesn't show up after getting a bail bond, <mystery that I assume involves bounty hunters, but also includes warrants for arrest>. - Time passes. - I don't know the precise sequencing on it, but I think it's around here and it's certainly between the initial appearance and trial, the prosecutors will send over all the evidence they have. This is called discovery. By and large prosecutors want to send everything possible because it avoids headaches later. Sometimes there's evidence they don't know about because someone forgot something or goofed. So at this stage the PD gets the police reports, witness statements, body cam footage, security cam footage if the cops have it, lab reports from the DUI blood draw, whatever. PDs offices are incredibly well versed in the rules of evidence and will assess the quality of this evidence in light of its admissibility. PDs may be able to interview witnesses or speak to anyone they or the defendant thinks are helpful. Some witnesses might not want to talk to the PD. All depends. (For instance, cops tend not to want to talk to PDs about cases except when asked questions on the stand.) - Plea negotiation can continue throughout this time period all the way up to trial. - Defendant can request a preliminary hearing, which is a request that the prosecution put on, in court, believable evidence supporting all the elements of the crime. This generally consists of the relevant police officers testifying about what they saw, their investigation, their evidence, etc. I don't know for sure but I think there are ways that otherwise-inadmissible evidence is admissible at this stage. So, like, police reports and witness statements can be admitted instead of needing to put on the whole trial. The judge will make a decision about whether to "bind over" the defendant for trial, meaning whether to leave the charges in place. The judge can dismiss some charges if she believes the prosecution didn't provide enough evidence. - Around here, defense counsel get a lot of latitude to cross-examine police officers at preliminary hearings, meaning they can ask a bunch of questions about the case as a whole even if not directly relevant to the preliminary hearing topics. It's their chance to speak to the police officers and assess credibility etc. - Before or after the preliminary hearing, a defendant/PD can file a motion to suppress certain evidence if they think it will be inadmissible at trial. Most often this is evidence obtained as a result of, or after, a search that the defendant says was illegal, or a warrant that the defendant says shouldn't have been granted. - Eventually there's a pretrial conference to go over administrative poo poo, a week or two before trial. Although plea negotiations have been ongoing through this whole process, my understanding is most plea deals cut off before or around the pretrial conference. After that, it's the last push to go to trial and why would the prosecution bother to put a plea deal on the table if it won't save them the time and effort of prepping for trial? (The prosecution will consider, during negotiations, the strength of their case and whether the most serious charges have some problems that might not be present with lower charges - for instance, a jury might not believe that a whiskey bottle is a deadly weapon.) - Everyone goes to trial. Woo. Now that I write all this up, I think you're coming at this from the perspective of a defendant, or a potential defendant. Meaning, you're looking at the situation with the initial lens of "wouldn't it suck if I were charged"? and "what is the worst case scenario for me? Could that happen?" And that's fine, but it colors your perspective because I don't think you're considering all incentives weighing on the prosecutors and how those balance out in practice. Also to completely circle back to the original and underlying question: Leperflesh posted:I feel like in these negotiations, the State wields immense power while even with a public defender, the defendant has almost no power. The consequences of fighting back and losing here are enormous and life-changing for the defendant. Is this justice? Arcturas fucked around with this message at 21:58 on Feb 6, 2020 |
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Feb 6, 2020 21:48
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I had an awesome response typed out, and my fuckin PC crashed. I cornered a 40 year Prosecutor/Defense attorney and asked him some of our questions, and tried to record the answers. Here is my best effort to give them back: "Is 'overcharging' a thing?" - Not in our county, not around here. Probably more prevalent in federal criminal cases, and maybe rural areas where the defense bar isn't as strong, but in my experience, its rare. It doesn't happen in the big cities around here. "Does plea bargaining incentivize overcharging?" - Probably to a degree, yes. Its part of the process of negotiating a charge. Is it bad? I'm not sure; it probably depends on your point of view. Without the ability to present all legally cognizable charges, you're handcuffing the prosecution. Sometimes you need to be able to show your willingness to seek a higher charge if necessary, to land at the result you think is just with the other side. I don't believe I've ever seen a DA add or threaten a charge they knew in their hearts had 0% chance of landing, but I'm sure it happens. On the other hand, if you're the defense, you'd rather the DA be handcuffed in negotiations (most of the time) because that makes your bargaining position better. Sometimes, however, it takes a threatened felony to convince a client who truly needs a drug intervention program or something similar to make that program the best option in their eyes. "Is plea bargaining a net positive or net negative for criminal justice?' - It is an excellent tool for justice. It opens the door for all sorts of pretrial diversion, drug, alcohol, and mental health intervention, allows for creative resolutions for defendants with license issues (truck drivers, heavy equipment, etc.) and other things you couldn't do if it was Trial or Bust. Plus, it puts the power in the hands of the defendant to choose their own fate, which I think is an important part of what their notion of justice is in their minds. "How many cases have you had, and of those, how many clients you knew or were reasonably sure were innocent, who ended up taking a plea deal?" - Thousands of cases as a defense attorney, and twice that as a prosecutor. When I was in the DA's office, we were given a handout about how to manage our caseload, and the first page was, "Separate your cases into three categories: Cases you need to Dismiss, Cases you need to Plea, and Cases you need to Try." The point was that if your evidence was weak, or you had any inkling that the defendant was innocent, you needed to dismiss. Never waste resources on a case that wasn't going to end in a conviction. The cases you needed to Plea were the ones where you believed Probation, or other pretrial diversion was as good as, or better than a conviction. This was 90% of cases. As for innocent clients and defendants? I honestly can tell you I've never had a Defendant take a plea who wasn't guilty of something. And maybe they were only guilty of a lesser offense, which is why a Plea was the right call for them then, but no, not after 40 years do I think I had one client who fits that description.
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Feb 6, 2020 22:13
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