LA LAW - THE PLEA BARGAINING DILEMMA 

One of the most difficult and unpleasant decisions that I have to make is approving a disposition on a defendant that deserves the maximum provided by law.   Often there will be a tragedy that strikes the community that causes us all to demand the harshest conceivable consequences for the offender.  After the dust settles however, the prosecutors must now examine the objective facts and legal process that will give us what the defendant and the community deserve.   This may suggest a trial if we are too far apart for an acceptable resolution.   On the other hand we must consider all reasonable requests.    

Many people are often appalled at the notion that 97 percent (figure from governor's race) of cases may be plea-bargained.  If we plea-bargained 97 percent of our felony cases in Larimer County we would try 60-70 jury trials a year.  Each jury trial averages about 3.5 days.  That is 227.5 days of trial for 65 trials.  We have 4 courts handling both a criminal and civil docket.   The current case load for our courts is one of the highest in the state.   Sixty-five trials translate into almost 5 days each month devoted to one case in each court.   This would be absolutely impossible to maintain while continuing to process the other 97 percent of criminal cases, plus all the civil cases. 

The National Prosecution Standards is a publication developed by the National District Attorney's Association as a guide to all prosecutors based on case law and ethical and practical considerations.  This publication provides suggestions on what we should consider when agreeing to a guilty plea.  But it only provides suggestions.  Part of the National Prosecution Standards commentary on accepting pleas states: 

The prosecutor must consider the time, the manpower of the office, available financial resources, and the specific circumstances surrounding the defendant and the alleged crime, when determining whether or not to negotiate a guilty plea.  Legal commentators can write a thousand articles on the subject, but the prosecutor must learn largely from experience. . . . plea negotiation is presently an absolute necessity and will likely remain such well into the twenty-first century.  And it should be said unequivocally that it is not against principles of justice to plea negotiate.  

Each case must be determined on its own merits and not on some policy pertaining to an offense.  Thus, considerable care and discussion go into the most serious offenses and offenders.  What the National Prosecution Standards suggest we consider are:

­         Nature of offense

­         Degree of offense charged

­         Resources available to adequately try the case

­         Mitigating circumstances

­         Age, background, and criminal history of the defendant

­         Attitude and mental state of the defendant at time of crime, arrest and plea discussions

­         Sufficiency of admissible evidence

­         Undue hardship on defendant

­         Deterrent value of prosecution

­         Aid to other prosecution goals through non-prosecution

­         History of non-enforcement of the statute violated

­         Age of the case

­         Likelihood of prosecution in another jurisdiction

­         Restitution

­         Willingness of defendant to waive his right to appeal

­         Willingness of defendant to waive civil actions against parties

­         Willingness of witnesses to cooperate

­         Desire of victim to proceed

­         Ability of witness or victim to testify because of age, trauma, mental state, etc.

­         Motive and credibility of the victim 

Any one of these may justify seeking a resolution short of trial.   

So next time you hear of a disposition you don't like, think about the factors that we have to consider, and send us a thank you note with a box of chocolates (actually you better hold off on the chocolates - newly passed Amendment 41 prohibits such gratuities).  Just write your County Commissioners and urge them to give us more resources.