On Law and Order, it’s pretty common to see the DA “trade” a reduced sentence for a guilty plea, or sometimes in order to get information. My question is, what prevents the DA from cheating? Also, are there examples of prosecutors cheating in this sort of thing? Finally, if the criminal gives false information, can the DA go back on their deal and demand a higher sentence?
Plea bargains have to be approved by a judge. If the DA welshed on the deal, the Judge who approved the plea bargain could stop the prosecution flat.
IANAL, but I would also suspect that Law and Order glosses over a lot of stuff in order to move the big climax along. Like when McCoy says, “Man 1 if he talks,” and then the defense attorney and the defendent exchange a defeated glance and a nod, and then the guy talks. I would think in the real world, any attorney worth his or her salt would get some paperwork involved, unless time was somehow a factor.
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Plea bargains are enforced under contract law principles. http://www.findarticles.com/p/articles/mi_qa3805/is_199806/ai_n8803299/pg_1
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Plea agreements that are conditioned on testimony or information normally include a provision that says the deal is off if the information is false.
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Yes. Prosecutors sometimes don’t perform their end of the bargain. As the link above indicates, if the defendant claims the prosecutor breached a plea agreement, the defendant gets an evidentiary hearing. The remedy can include permitting the defendant to withdraw the plea or enforcement of the prosecutor’s side of the deal by the court.
I can’t speak for how it works anywhere else, but in my little spot on the dot, a lot would depend on the relationship between the prosecutor and the defence attorney.
Where I practice, the prosecutors trust me, and I trust the prosecutors. We each keep notes on our negotiations, and then do a quick verbal confirmation with each other before making submissions to the judge. Correspondence is rare.
Being good for one’s word is of fundamental importance to the job. Lawyers in my local bar who have not been true to their word or have buggered up the system have been variously ostracized, convicted for contempt, or suspended by the Law Society.
Where correspondence comes in is when either policy wonks get involved, or where appeals are being made a thousand miles away in the provincial capital. With policy matters, where a law is being tested, correspondence is involved in fine tuning the deal between several lawyers, some of whom are not particularly interested in the immedate outcome, but who are very concerned about the precedent that will be set. With Court of Appeal appeals, the work is essentially paper based in the first place (working off transcripts), so one simply falls into corresponding rather than picking up the phone, because it is easier to use writing to point out items in transcripts or evidence, and to set out arguments. Once the pattern of using correspondence is established, then it tends to continue for everything, including setting out any deals.
One of the big differences between how we practice and what is shown on TV is that (up here at least) we don’t have the defendant attend at meetings between the defence attorney and the prosecutor. It is not a good idea to let your client be questioned (even sub rosa), let alone be pressured into a deal by the prosecutor. Perhaps this sort of thing is done elsewhere, but is sure as heck isn’t done in my district. I have to wonder, if a defence attorney permitted his client to be badgered into a deal by a prosecutor, as one sees on TV a fair bit, would it be grounds for a later appeal, and also would it be grounds for a malpractice suit against the defence attornery?
The only times deals fall apart is when either new evidence comes to light, in which case the prosecutor calls the defence lawyer and cancels the deal before it goes before a judge, or when the defendant changes his or her mind. It is not uncommon for a defendant to change his or her mind at the last minute. Sometimes there is a brief adjournment to give the defendant some time to calm down and think, and if the defendant still wants to dump the deal, then the matter is set down for a trial at a later date. When this happens it is frustrating for both lawyers, but the prosecutors do not take it personally against the defence attorneys, for it is the defendants who are the ding-dongs buggering up the system, not their attorneys.
Similarly sometimes a deal does not fall apart, but the judge will still refuse to ratify it. When that happens, again there is no animosity between the lawyers, for it is the judges job to make the final call – it is not up to the two lawyers.
http://www.ca5.uscourts.gov/opinions\pub\04/04-40481-CR0.wpd.pdf (government breached plea agreement, sentence vactated, case remanded for sentencing by new judge with government complying with agreement).
Example of a plea agrement: http://www.usdoj.gov/ag/pleaagreement.htm
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=10th&navby=case&no=062063 (enforcing appellate waiver by defendant in plea agreement; dismissing appeal)
Oh, I forgot to mention, for more serious matters, if we have a deal we then bring it before a judge in a pre-trial in chambers (basically the prosecutor, the defence attorney, and the judge meet privatey off the record in the judge’s office) to see what the judge thinks. If the judge supports the deal, then we bring the matter into open court ASAP for determination. If the judge does not go for the deal, then it’s back to the drawing board.
Some judges here have their own personal ways of handling pre-trials. Some are pretty much hands-off, and only want to ensure that the deal does not go outside of sentencing guidelines. Others are very pro-active, and put forth what they think the defendant and prosecutor should settle on. Some will only hold a pre-trial if a deal is in place. Some will hold a pre-trial is if the lawyers are looking for direction from the judge on what the deal should be. Some take a rather communal approach to pre-trials, in that they bring all the prosecutors and all the defence attorneys for their entire docket into their office, sit them down on comfy sofas, pass out the coffee and pastries, and then go through all the matters on the list together – which seems sort of wierd, but it is very useful in flushing out creative solutions, and helps build personal relationships between the various prosecutors, defence attorneys and judges, and is tremendously helpful for lawyers who are new to the job. I don’t know if this last way of holding pre-trials is very common elsewhere, but it works nicely up here on the more routine cases where there is no procedural wrangling.
A prosecutor that broke his word would quicly lose any credibility he had with the defense bar – and believe me that word travels.
Contrary to television, there’s very seldom a situation in which an accused is worse off even if a prosecutor did breach his agreement – it would simply mean the plea was vacated and you’d be back at square one.
Now, I can imagine a screwball case where the accused is seen by the prosecution as a minor player, and they offer a sweetheart deal, only to later find that the accused had much dirtier hands than was thought. In Canada, for example, I remember Karla Homolka, who along with her husband Paul Bernardo was implicated in the rape and murder of teen girls. Karla claimed she was forced by her husband to participate in the crimes, and was offered a 12-year sentence in return for her testiony against her husband. By accepting she dodged two counts of first degree murder and one count of second degree murder. Between the acceptance of her plea and trial, videotapes came to light that cast her participation in a much darker and more voluntary light than she had suggested, although she did not, technically, lie at any point and thus did not breach her plea agreement. There was considerable public outrage over the deal when her true role became evident.
Under such circumstances, I suspect the defense attorney would be extremely diligent about nailing down the terms of the plea. But stuff like that does not happen often.
Unlike the other respondents to this thread, I have pretty much no knowledge of the law at all. However, I imagine that one reason for not going against your word would be that future defendants would be less likely to accept it; if as in Bricker’s example a situation recieves considerable focus in the media, and had a plea deal agreement been broken or bent (to the extent that that is possible), anyone hearing of it who’s later offered a deal themselves is very much less likely to take it.
One aspect of the fall-out from this case backs up your point about maintaining confidence with regard to the prosecution’s word: the Crown said that they couldn’t simply break their deal with Homolka without undermining the whole process for future situations. They did ask for a ruling on her compliance with the deal, but as you noted, it was deemed that she’d stayed within the letter of the agreement.
That one was extensively negotiated and papered to the hilt.
BTW, she just had a baby. I can’t begin to imagine how the victims’ parents must feel.
Here’s a paper that does a good job at explaining how plea bargains work up here in the Great White North, with quite a bit of comparison to how it works in the USA: We couldn't find that Web page (Error 404) - Department of Justice / Nous ne pouvons trouver cette page Web (Erreur 404) - Ministère de la Justice
I remember reading the case of Martha Beck and Raymond Fernandez (mass murders) and they killed two people in Michigan and basically the Michigan police said if they confessed they’d be held in Michigan which had no death penalty. Of course once they admitted it Michigan shipped them off to NYC, where they had killed other people and both were ulimately sent to the electric chair.
That was in the 1940s so things have obviously changed a lot since then but it makes for an interesting comparison.
In Wisconsin, any plea arrangement is up to the approval of a judge. In the one case I am familiar with, it was presented to the defendant that upon a no contest plea, the DA would NOT make any recommendation for punishment, and leave it up to the judge. ( who has that right anyway). The Judge maxed the guy out, but made it probation so if he kept clean he could stay out of jail. This was not murder or anything, a misdemeanor or two.