Constitutional Contract Law

You’ve read about it: John Doe, charged with assault, pleads guilty to harassment, a non-criminal charge, instead. Joe Smith, with a speeding ticket, is allowed to plead guilty to “failure to obey a traffic control device” – what device?  Who knows; maybe a speed limit sign?  Jerry Jones is charged with burglarizing three stores, but pleads guilty to doing one burglary to satisfy all charges.  That’s plea bargaining.  Debate rages over whether any kind of justice can be derived through plea bargaining – often heated, pointed debate over specific cases mentioned in the media, and more generalized debate over the whole concept, including whether the whole notion of plea bargaining is a device which imposes injustice in the midst of the justice system, and exists to favor one of the “sides” or interests in the system – although there seems to be considerable disagreement about which interest is actually being advanced, and at whose expense.

What are some of the factors considered in making the decision on whether to plea bargain?  Virtually every criminal case has unique ingredients of its own, but some factors arise repeatedly.  The decision to enter into a plea bargain may include the time that will be taken up by a trial, or the cost of a trial, or even some consideration of “won/lost” records – all of these being motives attributed, usually scornfully, and perhaps even with hostility, by persons predisposed and eager to demean lawyers, judges, and the whole criminal justice system in our country.  It appears, however, that in real life, there are often a significant number of other considerations involved in the decision to pursue an agreed settlement, rather than a “win big/lose big” trial. They may include:

FACTS:  Both prosecution and defense will analyze the facts of the case – from two rather different perspectives: what actually happened; and what can be proved to have happened. 

What happened? What did this individual do? Was this person the brains of the operation?  The muscle of the operation? A seventeen-year-old kid trying to be a big shot in front of his buddies? What was the amount of damage done – or lack of damage? Was physical violence at the core of the crime alleged; or a peripheral part; or not at all? Were weapons used as a central factor in the offense; or a peripheral part; or not at all? How serious an offense was this?  Are we considering a kid with a small amount of marijuana, or a professional “hit man”?

What can be proved? The other aspect of the factual consideration is a matter of evidence – or lack of evidence.  In a case of driving while intoxicated, was the accused behind the wheel, driving down the street, when apprehended?  Sitting next to the damaged car?  Sitting at a bar drinking a beer, a mile down the road, and thereby rendering it difficult to determine the person’s blood/alcohol content AT THE TIME OF OPERATION OF THE VEHICLE? The ultimate resolution of the case, the determination of guilt or innocence, may lie with a jury; and the jury will be directed to determine guilt or innocence based on what can – and can’t – be proven, not upon some idealistic notion of “possible truth”; in a trial, “truth” is what can be proved – and what can’t.

LAW:  Both prosecution and defense will analyze the law.  Each criminal offense is defined by a set of “elements”, such as “INTENTIONAL infliction of BODILY HARM”; or “with INTENT to HARASS, ANNOY, OR ALARM”; or “CAUSES SUBSTANTIAL PAIN”. Are these elements present in the facts of this case? Can they be proven? If an element is missing, the crime is not there; if an element can’t be proven, it is not there.  “Overcharging” is not unheard of; an officer confronts a situation, and arrests for a greater crime than the law and evidence will support; sometimes this is inadvertent, as later study reveals that the charge can’t be supported by legal evidence.  Sometimes it may be “other than accidental”, with even the arresting officer expecting that plea bargaining will occur, and that the ultimate resolution after plea bargaining will more accurately approach what might be considered “justice”; for example, charging the person with a high felony you can’t prove, figuring that they will plea bargain down to a lower felony, whereas if you charge with a misdemeanor they may plea bargain down to a non-criminal offense. 

PERSONS INVOLVED:  Who is this defendant?  Is he an honors student, in his first semester in college, the first time his feet aren’t under his mother’s kitchen table, and being introduced to beer (a “5 and 5” case:  five hours of beer followed by 5 minutes of bad judgment).  Does she have a whole line of previous convictions – and are they getting progressively more serious?  Is this a person who shows genuine remorse, and deserves a break?  Do we want this person to be suffering a life-long disability for a brief, and possibly intoxicated, lapse of judgment?  Do we want this person to lose a college career?  Lose a scholarship that allows the accused to be in college at all?  Do we want her to have a criminal record, with significant parts of her future probably permanently foreclosed and gone?  Do we feel that the situation should be a learning experience – or has already been – and further punishment serves no legitimate purpose? Or do we feel that the protection of society suggests a prison term is appropriate?

THE JURY:  The jury will not, of course, be chosen by the time that most of these considerations are being weighed and evaluated; but both prosecution and defense may have some thoughts about how a jury will react to a particular case, a particular set of facts. Is this a small town, with a rural-oriented culture and attitude? Is this a rich suburban area? Is it an impoverished area? Is the defendant facing charges that the local populace, rich or not, will “rise up in arms” about, or one where they might say, “there but for the grace of God goes me”, and might look for a ready rationalization to only vote for a lower included charge – or vote not guilty of anything?

THE PRE-TRIAL PROCEDURES:  In a criminal case, there is a stage at which the defense may engage in certain procedures before the question of guilt or innocence is even reached, like whether a statement or confession was obtained legally; whether a search warrant was properly obtained, and/or properly used; or whether other procedures had been correctly or incorrectly followed by police and/or prosecutors. Both sides will consider whether some of these areas are vulnerable to Court decisions and rulings which will damage or destroy the case against the defendant – or whether the prosecution feels that there is nothing in that area about which to worry. 

THE TRIAL:  Obviously, a significant consideration is whether prosecution and defense witnesses have something important to say – something, to use the “lawyer words”, competent (able to come into evidence under appropriate evidence rules and exceptions), relevant (having some relation to the case), and material (having sufficient importance to potentially make a difference in the case). There are other considerations, however, with respect to witnesses called to testify in the trial. 

What kind of impression is this witness going to make? Is the witness going to be able to convey his or her information in a believable manner? Does the chief prosecution witness going to be revealed as having a criminal record that is going to make the record of the accused, or the facts of this case, look like “milk and cookies”? Does part of that record include convictions for perjury – lying under oath, perhaps in a courtroom situation? Or is the primary prosecution witness, when off-duty from police work, a pastor in a local church?    

Will a trial require putting a vulnerable person, or a child who has been abused, on the witness stand, and expose that person to high levels of stress, not to mention probing cross-examination by opposing counsel? Do we really want to make the ten-year-old endure this in front of dozens of strangers, reciting intimate and embarrassing details? How do we balance that with the desire to convict the accused? Would that substantially damage the child – exacerbating the damage that has already been inflicted?

DECISION TIME:  What is justice, and where does it lie? Justice is a concept which may extend far beyond “is he found guilty of what he was arrested for?” and “does she go to prison?”  There may be even more factors influencing the decision to try for agreement and settlement of a criminal case; but let it suffice to suggest that not all decisions to plea bargain, with all prosecutors and all defense counsel, in all Courts, at all times, depend on the length of someone’s perceived “win” column, or the callous attempt to distort justice which is so often stated as the reason for the existence of plea bargaining.