Wednesday, August 1, 2012

The Plea Conversation

So what is a human life worth?  Sometimes, I think that's what this conversation is about.

This is one of the most difficult conversations a prosecutor will have - discussing a plea with a victim.    To have this conversation, two things have happened:

1) The prosecutor has evaluated the case and decided a reduced plea is warranted for whatever reason, and
2) The defense attorney has said there is interest in a plea bargain.

See the mechanics of plea bargaining in New York here.

Plea bargaining is about expediency.  It allows the defendant reduced sentence exposure, a victim to move on without being cross-examined in public, and the court system to handle an incredible amount of cases, along with many other benefits.  But when it comes down to it, the defense attorney, judge, and prosecutor were not the one robbed, shot, raped, burgled (yeah, that's a word), or killed.  The defendant didn't kill my wife or child.

One of my colleagues told me, "if one of my family members were killed and the prosecutor brought me into the office and began telling me he wanted to offer a reduced plea, I would reach over the table and punch him."

Before conversations with the victim, I often think about what my reaction would be if the roles were switched.  It helps me remember that we are dealing with people, not names in a file.

In an interesting twist, I find the higher level the offense, the more likely a victim or their family agree with a plea bargain.  For some reason, harassment victims are the least likely to agree with a plea.

I'm going to use a murder case I handled as an example.

This murder case was already indicted and moving along to trial.  About two weeks before the trial, the defense attorney called and told me his client is interested in a plea to manslaughter (reduced from murder) and in exchange would cooperate in some pending investigations.  (Read about murders and manslaughters here).

The defendant was charged with shooting the victim five times.  The defendant was part of a gang and he pretended to buy marijuana from the victim so that he could kill him as part of a gang war.

Sadly, it is a pretty typical homicide.

The defendant came in with his attorney and provided some good intelligence.  That was step 1.  He had something to offer us.

Step 2 was getting authorization from my boss and the big boss.  We acquired that (in order to keep the paychecks coming in I'll keep the details of those conversations private).

The boss set one condition I'll share - the victim's family had to agree to the plea offer or no deal.

That takes us to step 3.

The victim left behind a wife of ten years and two young children.  He also had an extremely religious and upset mother and hard-of-hearing grandparents.  The wife and parents did not get along.  I decided to have two meetings.

I first met with the victim's wife.  She arrived at my office without her children, something I was praying for.  You know how difficult it is to find babysitters at the last minute in the real world?  Imagine if someone dropped their kids off with you unexpectedly at work.

The wife was well put together.  Dark, straight bangs shielded the tops of her brown eyes.  Gold bracelets jangled with her hands when she uses them to drive a point home.  We sat across from each other.  The homicide victim advocate from my office sat on my side.  She had more experience and I wished she would guide the meeting.  I know it's my responsibility though, so I started with the usual how are you doing stuff.

The conference room had a long, wooden table the color of caramel.  The windows overlooked the holding center where the defendant awaited trial, an irony not lost on this ADA.  The nine empty seats around the table made this impersonal.  It's a room more suited for Gordon Gekko ravaging a company than seeking acquiesence for a plea.

I then framed the conversation.  "The defendant wants to take a plea.  We're only going to do that if you want it and agree to it.  So I want to let you know what everything means and answer your questions."

Tears.  More tears.  More tears, interspersed with the clinking bangles.

I lay out the two options.  Trial or plea to a lower charge.  The sentences - murder means 25 to life and manslaughter means 25 without life.

I laid out the chance of success at trial.  "We have a strong case.  We definitely believe we can win.  That being said, there's always the chance of losing at trial and then the defendant walks away at the end.  We have two witnesses, but they might not show up or say what they said before.  Or the jury can just feel bad because the defendant is eighteen."

She asked what I think.  It's a question I hate.  As a prosecutor, what do I think?  It's a great deal.  He's cooperating in some other cases and will still get 25 years.  I told her he's cooperating, but not on what cases.

As a human what do I think?  It made me sick.

She teetered on the edge.  There was one other thing I had to tell her.  It was about her husband.  During the investigation, the police recovered over 40 pounds of marijuana from the victim's house, which was her house too.  This was a set-up drug deal.  All that evidence will be coming into the trial because drug dealing was the motive for the murder.  She needed to know.

Tears and jangling bangles.

She knew what he was doing.  She was enjoying the spoils of it.  She didn't want to sit through a trial and have everyone else know what her husband was doing.  She wanted the plea.

The meeting with the mother and grandmother was different.  They liked to come in and show pictures of their child from his youth.  They weren't interested in speaking about the case, only speaking about him.  We listened and explained what was happening.  We didn't tell them about their son's past.  They didn't need to know.

The defendant pleaded guilty and received 25 years.  He then backed out of cooperating and was charged with other cases.  He will end up serving much more than that.

On Friday, I'll discuss what New York State Law says a victim's rights are with respect to a plea and sentence.


  1. Well I can tell you from experience that although the idea of a plea is horribly insulting to the family members of the victims, at the same time, the possibility, no matter how slim, that this person could walk (i.e. be acquitted at trial) is even more horrifying. So although the idea of a plea is just reprehensible, after more thought, I can see why families would agree to it. If someone killed your loved ones, at the end of the day all you want is for that person to not be able to do it again. Sometimes a plea is what it takes to get there. But I know every case is different with its own unique circumstances. Great post!

  2. What do you do when a defendant backs out of a plea deal like he did?

    1. Two things: 1) Withdraw our consent to the plea and reinstate the indictment. Then continue to trial like it never happened, or 2) let the defendant get sentenced. This usually happens when the judge gives a sentencing range and the defendant will get the high end without cooperation.