Guy I used to know just pleaded guilty to being part of a swindle, so naturally I took interest in the documents relating to the case. I was struck by a distinct difference between two documents filed by the prosecution with the court on the same day. One was titled “information” and the PDF filename was “[doe-john]-information for plea-[date].pdf”. The other was a memo to the defense attorney laying out the terms of the plea deal, and signed by the prosecutor, the defendant, and defendant’s attorney.
What this guy was accused of was essentially of fronting for a big time swindler and Ponzi schemer on an imaginary real estate deal. And the crucial difference between these documents was about the extent to which this guy knew of and participated in the scheme.
The actual plea agreement has a section for facts stipulated by both sides. It makes pretty clear that while the guy lied about certain facts to keep the “deal” going (e.g. over whether the money was being deposited in an escrow account, whether progress was being made on the “deal”, whether the “deal” had actually closed) that he genuinely believed that the deal actually existed, if not on as secure terms as he presented it. And that the subsequent diversion of the victim’s money into other areas was done by other people without his knowledge.
By contrast, in the “information for plea” document the prosecution continues to assert that the guy was a knowing participant in all aspects of the scam.
It seems to me that the prosecution is getting to play both sides here, by stipulating a lesser set of facts in order to get a plea deal, but then continuing to present a more severe set of facts which might possibly influence the sentence.
By contrast, my understanding is that the defense cannot make a plea deal but simultaneously file other documents in which they present the defendant as innocent. It seems like an uneven playing field here.
Comments from lawyers/legal experts would be appreciated.
[I have a brother who is a lawyer, and by coincidence he has been involved in lawsuits against the big time swindler for years, so he naturally took an interest in this case. I had a cryptic exchange of emails with him about this. His main point was that the prosecution will not be interested in double-crossing the defendant, so as to keep other people willing to plead. But that doesn’t address what appears to be a legal discrepancy.]
It sounds like one of the documents (the one painting the defendant in a more negative light) is just an informational document, perhaps to just have on record what the prosecutor’s opinion on the matter is. Basically he’s saying, “we accepted and signed a plea agreement with a certain set of stipulated facts, however I believe this alternative scenario is also possible but since I’m interested in using this defendant as a witness I haven’t investigated it fully so it’s just a statement of my opinion of the case.”
The signed plea agreement is going to be what the judge sees, and the facts stipulated in the signed plea agreement will be the more important part of the legal record. Unless the defendant totally fails to live up to their end of the plea agreement, or they find out their defendant had fabricated their story in its entirety, or the judge decides the plea terms are unacceptable, the defendant is going to get the recommend sentence in the plea agreement and I doubt that informational document will much influence it.
The judge has an interest just like the prosecutor in keeping the case moving, and probably appreciates the prosecutor’s candor in the informational document, but unless he finds the plea to be some intrinsic miscarriage of justice he probably isn’t going to pass a sentence markedly harsher than what is agreed to in the plea because the judge is going to give some degree of deference to the prosecutor and also the prosecutor’s desire to be able to effectively use the defendant in his case against the big fish.
The prosecution is relying on a principle known as “800 pound gorilla”. They can do whatever they want. They claim the worst, and then offer a plea so good the defendant has no choice.
Also note that the DA does not have to tell the truth. They are lawyers. Sorry, that’s a snide remark… but the only thing restraining the prosecutor is their own ethics; so there are those whose concern is conviction stats not honesty. Portraying the defendant as a misguided and mildly unethical person rather than a co-conspirator in it up to his neck, will not enhance the chances of conviction.
Plus, I suspect the pressure was there to persuade the guy to rat on his friends. Prosecutors love that game.
I’m sure a real lawyer will chime in soon, but I suspect the answer to the OP’s question is - the documents imply “if the defendant does not assert to the plea deal document, we want the court to consider this possibility of his culpability”. The defendant is not asking the court “could you consider the possibility I’m not guilty?”, he’s in court to admit to the plea-deal facts.
I have heard stories about people who tell the judge during the plea “I didn’t do it, I’m just taking the plea to get this over with”. The judge then says “fine, unless you admit your guilt, we go to trial.”
The whole system is a game, where everyone nods and winks their way through. The prosecutor speaks out of two sides of his mouth and word processor. The judge accepts two contradictory stories without batting an eye. Actual guilt or innocence is totally irrelevant. (As you can see by the extent to which courts will fight tooth and nail to block attempts to re-open cases when new evidence comes up. Some states even passed laws severely restricting the re-testing of evidence when DNA technology became available).
If everyone insisted on their day in court, the system would grind to a halt faster than a snail in passing gear. The prosecutor is motivated to put the maximum pressure on the defendant to settle, by making the spread between plea and trial as menacing as possible.
I’m no lawyer, but if the defendant really feels that way, the plea negotiations should have been towards pleading “no contest” rather than “guilty”. That’s the distinction, really: “Nolo contendere” means “I’ll neither oppose nor agree with the prosecution’s case; let’s just get this over with”. (Effectively).
OTOH, maybe the prosecution didn’t feel like allowing a “no contest” plea, and the defense didn’t have the leverage to change their mind.
These quotes actually touch on a crucial aspect of my question (and one that my brother was vague about in our email exchange). Is the fact that the defendant can’t argue both sides because the prosecution won’t go for it, or because the judge won’t? (And if the latter, then why do judges let the prosecution do it?)
[I myself once had an experience of this sort in traffic court. I wanted to plead guilty, but genuinely didn’t know if I was actually speeding and thought there was a good chance that I wasn’t, and didn’t want to say things that might be untrue under oath. But when I stated this in court the judge wouldn’t go for it. He said either testify that you’re guilty or plead innocent. The prosecutor didn’t have to say anything at all.]
Yes, in a plea bargain, the defendant has to admit to the crime they are pleading guilty to. You can’t assert your innocence and plead guilty at the same time, you have to pick one or the other.
But the two sets of facts are not mutually exclusive. The prosecution says, in effect:
(1) Your guy did A, B, and C, and that makes him guilty of the lesser offense;
(2) AND your guy also did D, E, and F, which would be elements of the greater offense, but which we may not be able to prove beyond a reasonable doubt, but we can show by preponderance of the evidence and is relevant to sentencing.
This is in contrast to a defendant who tries to say:
(1) OK, to get the plea, I admit to acts A, B, and C,
(2) BUT I really didn’t do those acts; I’m innocent.
Those two claims are inconsistent.
Now, there is an option for a defendant: an Alford plea. I wrote in detail about the Alford plea for the SDSAB:
The “stipulated facts” say “John Doe made these misrepresentations because he believed he would get a commission from the transaction closing”, and “Without John Doe’s knowledge, Richard Roe and others conspired to defraud Victim A …”.
So the stipulated facts are not just silent about other matters. They state explicitly that John Doe believed the deal would come to fruition, and that that the actual defrauding was done by others without his knowledge.
Meanwhile the other document is explicit that John Doe deliberately conspired with Richard Roe to defraud Victim A.
Not the exact words, but this is what happened to me about 15 years ago in Georgia. On the 47th day after moving to Georgia, I was stopped by a cop for expired plates. My plates were not expired but they were from my previous state of residence (Missouri). Then he asked for my drivers license and insurance card. Both were from Missouri. He arrested me, had my car towed into impound and I spent about 12 hours in jail. I was charged with driving an unregistered vehicle, driving without a license and driving without insurance. I was bailed out, and hired a lawyer. He negotiated a plea deal with the prosecutor, under which I would plead nolo and pay an $800 fine, rather than face an automatic one year license suspension on the driving without insurance charge. When I got to court, the judge looks over the paperwork and asks me,
“Has anyone offered you anything in exchange for this plea.”
My lawyer is furiously signaling me to say no.
I said, “Well I was told that I would avoid a license suspension if I agreed to plead nolo”.
He asked, “Are you in fact guilty or not guilty?”
“Not guilty.”
“When did you move to Georgia?”
“December 3, 19xx”
He looks at the document and asks “Have you any other criminal convictions.”
“Not even a parking ticket.”
Looks at the prosecutor and my lawyer, shakes his head, and says “Case dismissed.”
I turn to my lawyer and asked, “What just happened?”
“You caught a huge break. If the case had gone to trial, the prosecutor would have been pissed and gone for the max penalty.”
My lawyer was a former prosecutor. I thought this gave me some kind of advantage. Apparently he saw his responsibility as helping the prosecutors lighten their workload. Worst $2500 I ever spent.
Unfortunately, this DOES work for civil lawsuits. It annoys the hell out of me when the settlement agreement says, “We are emphatically NOT admitting that we did anything wrong. And even though we’re not admitting it was wrong, we promise to never do it again. But we’re going to give you a gazillion dollars to avoid going to trial.” I understand the need for expedience, but I SO wish they would admit that they were wrong!!!
The “Information” is the formal charging document. It’s the case the prosecution is bringing against the defendant. The plea agreement is the agreement the parties subsequently worked out to resolve the case. So he’s charged with doing the one, but he’s agreed to admit that he committed the other. The prosecution is being inconsistent, but only to the defendant’s benefit, in theory: they’re conceding that a lesser theory of culpability is the correct one in exchange for resolution.
The defendant can’t do the same thing in reverse because he’s innocent until proven guilty. He can’t say yeah yeah OK, I didn’t do it, but I agree to this theory that I’m guilty. That also redounds, in theory, to his benefit: he can’t be convicted for something the record doesn’t reflect he did.
It does. As a general rule, what you’re describing is not permitted. The prosecution is equitably estopped from stipulating to a set of facts and then turning around and claiming a contradictory fact in a related proceeding.
How certain are you of the specifics? What, specifically, were the two documents?
What’s confusing me is the OP’s description: an “information for plea” document.
A prosecutor’s information is a charging document. Similar to and replacing an indictment, it lays out the facts that the prosecution believes it can prove at trial, and establishes probable cause to support the prosecution in the first place.
A plea agreement is in essence a contract, laying out the terms under which the prosecution accepts a plea and the facts that the prosecution would prove at trial that support a finding of guilt consistent with the plea. Often a plea agreement will include, by reference, a pre-sentence investigation report that lists additional facts relevant to the imposition of sentence.
The quotes I gave were almost exact. To be a bit more precise (changing only the names and numbers), the quotes from the plea deal are: "John Doe made the misrepresentations to Victims A and B because he believed he would earn a X% commission if the real estate transaction closed", and “without Doe’s knowledge, Richard Roe and others conspired to defraud Victims A and B out of their $X,XXX,000 investment.”
The other document says that Doe “did knowingly and intentionally devise a scheme and artifice to defraud” the victims, and that he and Roe “misappropriated the victim investors’ funds for their own use and benefit”.
The name of the PDF file is “information for plea […].pdf”.
It starts off with the name of the court, judge, and case, and under the heading “Information” says “The defendant having waived in open court prosecution by Indictment, the United States Attorney for the district of … charges” and so on.
The “information” document doesn’t have a date on it. But but it was stamped as filed on the same date as the plea deal (about 5 weeks after the plea deal was signed).
But a civil suit is not about guilt. It’s about who damaged who, and by how much? I could sue you for turning the moon from green cheese to blue cheese, and you’re welcome to pay up instead of defending yourself. It does not create a criminal record.
However, except in odd circumstances, I believe (any real lawyers out there?) that the “not admitting” situations with secret deals are pre-trial settlements. The two sides agree to something and there is no trial, no dispute any more. A full lawsuit to judgement IIRC results in a public finding of fact. Just like you can go to criminal trial and end up fried in the electric chair while maintaining your innocence, you can deny whatever in a civil suit, but when the trial is over, the judge will “find facts” and issue a judgement based on those findings. (or a jury will do the dirty work).
A criminal plea deal is simply a form of blackmail. “You admit to something and save me the trouble of proving it, and I’ll ask the judge let you off with a much lesser sentence.” The judge needs to hear the defendant plead guilty.
The first is what the prosecution will PROVE in court, given the evidence at hand (which might change…they may hope that the evidence for more comes along… )
The test was beyond reasonable doubt for all of the charge claim.
The 2nd, the story with the plea bargain, comes about because its an update to the first… and its test is what probably happened - its not good enough for trial but good enough to write up for the plea bargain … Besides having accepted the plea deal, defendant may have told the full story, which then results in the new summary…