Thursday, December 30, 2010

DWI: A Problem With Plea Bargaining Policies

As a criminal defense lawyer sometimes we get cases where we have pretty good but not overwhelming evidence that our client is innocent.

In some counties, I contact the prosecutor and explain the evidence. Sensible prosecutors will agree to a deal where my client pleads guilty to a lesser offense that's better than the original charge. Yes ideally it would be dismissed but this compromise tends to make everyone happy.

Then there are counties where the District Attorneys have strict plea bargaining policies.

An example is a recent DWI case where we had great evidence. Police documents indicated our client may not have been driving (something they have to prove beyond a reasonable doubt). On video, one of the cops said he was surprised the breath test result was so high because our client seemed sober. And he looked and sounded completely sober. This took place in a county where the DWI has a strict policy on plea bargaining for DWI cases. Due to policy, the only offer was for our client to plead to the charge (link is to a previous post about such policies).

A reduction to DWAI would have been reasonable and my client would have accepted it. I'd prefer a dismissal or a better deal of course, but it would have been reasonable.

Since that was not possible, we did not discuss the evidence with the DA. We simply prepared for trial. When trial came, the flaws suddenly became apparent and the case was dismissed.

The policy led to a lot of waste. My client spent a lot of time and money. The judge and court staff wasted time. So did the prosecutors. If they made deals on cases like this, they'd have more time for the stronger and more important cases. This is a DA's office that has blown some big ones.

Perhaps the worst, about 30 prospective jurors sat in court for hours.

I appreciate the concern about drunk drivers. Through my work I've seen the harm more than most. But the punitive approach is wrong, especially with defendants who have clean records. The focus should be getting drunk drivers off the road and into treatment. Plea bargaining accomplishes that.

Saturday, December 25, 2010

Bar Exam and Real World Experience

Okay, so I'm studying for the Florida Bar Exam. I am encountering one problem repeatedly. I think I'll get past it, but it's a little funny so I'll share ...

Here's a sample question from the review course:
Bob is showing off his new gun to Ted. Thinking there are no bullets in the gun, Bob reenacts a scene from his favorite movie – points the gun at Ted and pulls the trigger, hitting and killing Ted. With what crimes can Ted Bob be convicted? Please evaluate fully, including any and all defenses that may apply.

The sample partial answer deals with First Degree Murder, and concludes that Bob cannot be convicted because he did not intend to kill him (because he thought there were no bullets in the gun).

Okay, maybe in the fantasy land of law school and/or bar exams that might be the case. But in the real world of criminal lawyers, the key word here is "can," not "should":

1. Simple - The jury can infer intent from the facts. Bob pointed the gun at Ted. He pulled the trigger. There was a bullet in the gun and it hit and killed Ted.

Yes in the abstract we know Bob thought there were no bullets in the gun. But how does the jury know that? Because Bob says so? Right. How many defendants would be acquitted if that was persuasive to a jury?

2. Detailed - Police came to the trailer park and took Bob down to the police station. Strangely they didn't believe Bob thought there were no bullets in the gun. After 7 hours of interrogation without an attorney (Bob didn't think he needed one because it was just an accident), Bob said he was sorry and admitted that he was mad because Ted ate the last french fry and he wanted to get back at him. Also, Bob's jail roommate gets extra good time credit by testifying at trial that Bob admitted he did it on purpose.

In other words, Bob can be convicted of First Degree Murder because the criminal justice system is not always about justice.

I'll do my best to stick to the fantasy answer, but maybe I'll slip in the real world answer at the end ("It should be noted that in the real world ...").