We’ve touched upon it in other threads, but I wonder if anyone has experience and/or actually challenged this common practice.
Say a person is arrested and charged with a misdemeanor crime. We will say battery. There was a fight outside of a bar between John Smith and John Doe. Smith is charged with battery as the aggressor. He posts reasonable bail, but as conditions of his bail, he is not to consume alcohol or have any contact with Doe.
The D.A. gets irrefutable evidence that Smith was seen at a bar drinking and has a text message that he sent to Doe saying that he still wanted to be friends.
At an upcoming plea hearing, the D.A. says to Smith’s defense attorney that he has evidence to revoke Smith’s bond and place him in the county jail pending trial which could be 7, 8, 9 months away. OR, he could take a plea deal, plead guilty to battery and pay a $100 fine. Smith and his attorney believes that he has a good defense to the battery charge and Smith wants to have a clean record. But the choice is obvious: spend at least 7 months in jail and lose his job or pay a fine and take the conviction.
Is there any experience, any published case or any thoughts that what the prosecutor is doing is unethical. He will argue at a bond revocation hearing that Smith represents a danger to society and the alleged victim, yet if Smith had entered a plea, he would equally argue that it was a just outcome. To me that is terribly unethical and violates a persons right to trial.
Doesn’t sound unethical to me - prosecutors drop charges in return for a guilty plea all the time.
If this is his first misdemeanor, he would have gotten a fine and probation for the assault anyway. He was dumb to not plead guilty, and dumber for violating his bail conditions.
His right to trial isn’t being violated. That’s what bond is for - so he doesn’t have to be in jail until trial, providing he behaves himself.
Isn’t there something about him having the right to a speedy trial? Can’t Smith’s attorney say we’re ready to proceed with this next week so let’s get this party started?
Sure, the DA can ask for a reasonable continuance to interview witnesses, but the judge should put his/her foot down at more than a month I would think.
But a conviction will hurt his future employment chances, and remember, he has an excellent defense.
Behave himself? If he takes the plea, then the second after, he can drink booze or text Doe. Society doesn’t deem those things harmful. You or I can do them right now. Why the imposition of a restriction on Smith (who as we remember from junior high is innocent until proven guilty) that deserves 7 to 9 months of incarceration, regardless of his guilt?
I don’t see anything unethical. I see an overzealous and likely inexperienced prosecutor. No judge in my area is going to hold somebody in jail for 7-9 months awaiting trial on a misdemeanor. I might pat the puppy prosecutor on his cute little head and say we’ll just go talk to the judge in chambers or have a hearing.
Let’s say it is two weeks. You don’t see the coercive nature of it? Remember, the guy claims he is innocent, has an excellent defense, and the consequences of a guilty plea will stay with him for life.
Do you not acknowledge that this is a strong arm tactic to prevent him from challenging this charge as he is entitled to do?
IOW, if the State agrees that the penalty for guilt should be no jail, why should he serve jail time prior to the finding of guilt?
I do understand that. But the prosecutor is not there to convict (at least under the overall theory) or leverage his position to screw someone out of a trial. He is there to do justice. Where is the justice is what I described?
I know that is how prosecutors ARE, but how is it ethical in any way?
And why should people have these types of conditions on their freedom when they are innocent until proven guilty and entitled to bond under statute?
Or contrariwise- what if he’d been granted PR, contingent on three promises- to return for court, to not drink, and to not contact the alleged victim? Does your calculus remain the same? That he should not have to honor those two of the three conditions?
Then his lawyer is equally dumb. Plead guilty in return for probation, if he serves his probation successfully it gets expunged. Although if he can’t stop himself from drinking and contacting Doe, I am not sanguine about his ability even to make it thru probation.
The rules are different for someone out on bond vs. someone who is convicted of a misdemeanor. You have to behave differently - you are out on bond.
Violation of condition of bond isn’t generally a crime, unless it is a crime in and of itself, IIRC. So he wouldn’t be in jail because he is guilty of anything - he is there because he cannot meet the very minimal standard of someone who is out on bond.
I don’t see a problem. If he has an excellent defense, then abide by the bond conditions, plead not guilty, and present your defense. If he can’t stop himself from drinking and bothering Doe, then he can sit in jail. Or take the plea as any lawyer worth his salt would advise, and then he doesn’t have to sit in jail and, eventually, the conviction will be vacated or expunged or whatever.
The right of the accused needs to be balanced against the needs of the public not to have people for whom it has been demonstrated that there is probable cause for them to be arrested. That’s a different standard, but it’s not the same as the presumption of innocence, nor IMO should it be.
You are adding facts. There is no offer of expungement on the table. He will have a permanent criminal record.
And yes, let’s assume he is an idiot that cannot stop drinking or contacting Doe. Neither of those are crimes and probation is a criminal sentence that he seeks to avoid, by again, having his Sixth Amendment right to a jury trial so a jury will find him not guilty.
There is no crime of drinking or contacting Doe so what does his ability or inability to do that have anything to do with coercing him to plead guilty?
IANAL, but it sounds to me like the coercion was the attempt to get him to stop flirting with trouble by putting conditions on his bail. In accepting the bail agreement he basically volunteered to be sent to jail if he screwed up. It’s not coercion to send him back there; that’s just the dominoes of the law falling once he pushed the first one over.
Presumably the offer to plead guilty was always on the table; it just looks more attractive now that he’s volunteered to otherwise spend his time in jail.
While neither drinking nor hanging out with a particular person are illegal, there’s clearly a difference between doing so in normal circumstances and doing so after there was enough evidence to charge you with a crime committed directly related to being drunk and hanging out with that person.
People who get drunk and get in fights with their friends who keep drinking and hanging out with those friends are very likely to get in another fight with those friends while drunk.
Drinking isn’t illegal for a variety of reasons, but one chief one is that the vast majority of people don’t commit acts of violence when they drink. Once there’s credible evidence that you’re not in that majority, it’s totally reasonable for the court to force you to knock it off, or to imprison you until they can evaluate the evidence. Because we have to balance Smith’s rights of association and alcohol consumption with Doe’s right not to get beat up by a drunken asshole.
Oh he “volunteered”? You are using that word in a way that I don’t understand. If he volunteered to go to jail, then he can leave anytime he wants, no?
I mean, let’s be serious. It’s not like he had a choice in the matter. And, again, at this stage in the process, the law views him as innocent as you or I.
He *volunteered *- would you prefer “agreed” ? to NOT go to jail in exchange for a few key things: the bond money and a couple of conditions. His choice, had he not volunteered - or if you would prefer, *agreed *- was to sit in jail until trial.
So he agreed to avoid jail until the trial, and he forfeited that by failing to uphold his part of the bargain.
ETA you seem to be arguing that it is coercive to hold him to the agreement that he voluntarily made, or to offer another option (the plea) .
Oh for goodness sake. IANAL but I seem to recall that when you get bail (PR, bond, whatever) you are still “in custody” just not physically in jail. So conditions can be imposed. Violate those conditions and you can be locked up.
Now this coercion to plead down is something else. You get it at all levels and IMO it sucks. It is an erosion of the presumption of innocence.