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Art of the plea
Plea bargains are a necessary evil, prosecutors and defense attorneys say
Journal Illustration by Jeremy Boyd
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Published: October 12, 2008
A few days after her son was murdered in 2006, Mary Lyons first heard that her son's case would likely never go to trial.
Lyons said that the case detective told her that Aaron Jarrett, the man responsible, turned himself in, was remorseful and that the detective expected that prosecutors would likely offer to let him plead to second-degree murder, instead of first-degree murder.
"I got emotional; I said, ‘That is not right,'" Lyons said. "I feel a plea bargain is just a cop-out on the judicial system and it's just a way to put a check to say you've got another case closed."
Plea bargains are by far the most common way of resolving criminal cases, both in the county's court system and in courthouses throughout the country. But they are rarely well-understood by the public and are often frustrating for families of victims, according to victims' advocates, defense attorneys and prosecutors interviewed for this story.
For Lyons and others, a justice system that uses few trials and
takes so many pleas seems to have no justice to it. Others say that pleas can be an appropriate resolution to a case, one that allows prosecutors to do the most they can with the resources they have.
Lyons, an assistant high-school principal in Edenton, has been researching and fighting against the plea offer for more than two years. She appears likely to lose her fight in November, when Jarrett is scheduled to plead to strangling her son, Philnando O'Neal, on Jan. 20, 2006.
For Lyons and others, plea bargains are a jolt to their idea of how the judicial system works and to the expectation that when their day in court comes, it would be in front of a jury.
"It's obvious that something's not working right in our judicial system," said Paula Hawkins, whose son, Jonnathan, was killed in 2006. The men who killed him pleaded guilty as part of a plea deal earlier this month. Hawkins opposed the deal.
So why are so many cases resolved by plea bargain?
"The quick and easy answer is the court system would shut down if they didn't exist," said Pete Clary, the county's public defender. "It would take 50 times more judges and lawyers and clerks to handle the volume if every case went to trial."
From July 2007 to June 2008, 1,195 felony cases in Forsyth Superior Court were resolved by a guilty plea and 107 went to trial. Forsyth County is one of a few counties in the state that allow pleas to low-level felonies in District Court, which usually handles misdemeanors. From 2007 to 2008, 1,045 felonies were resolved that way.
A typical trial might take a week. In that same time, prosecutors could easily clear 60 felony cases by plea.
Statistics kept by the court system don't track how many guilty pleas are plea bargains, also commonly referred to as plea deals.
"Most people believe it's virtually all of them," said Ron Wright, a former federal prosecutor and a professor at the Wake Forest School of Law.
The genesis of a deal
A plea bargain works like this: After police charge someone with a crime, a prosecutor and the defense attorney assess how strong the evidence is -- the reliability and character of witnesses, the physical evidence and any evidence, such as a confession, that might be tossed out if a judge finds a procedural error. Both sides size up how they think a jury will view the evidence.
The prosecutor and defense attorney then start bargaining. State law requires prosecutors to listen to victims or their families, but the decision to offer a plea is the prosecutor's alone. Prosecutors can offer to accept a plea to a less-serious charge, or negotiate a range of possible prison times for a charge. Or they can agree that if a defendant will plead guilty to several charges, prosecutors will agree to lump the charges into one charge for sentencing.
Through negotiations on both sides, attorneys often come to an agreement that is close to what a jury would decide in a case, Wright said. That saves taxpayers' money and prosecutors' resources.
"In a great majority of the cases, it produces good results for the public," Wright said.
If prosecutors look at a case and believe that a jury will convict on second-degree murder, then refusing to make a plea offer means that prosecutors are not using their resources well, said Colon Willoughby, Wake County's District Attorney.
"Resources do affect the prosecutor's assessment of all cases, from murders, robberies, rapes and drunk driving," he said.
In Cumberland County, prosecutors try more murder cases each year than Forsyth. Last year there were five trials in Cumberland for murder and 15 trials for other felonies.
Keith's office tried three murders last year and had 104 trials for other felonies. His office also focuses on habitual felons, with more habitual felons in state prisons than any other county.
That's the trade-off, Keith said.
"We could only try murder cases," he said. "But then we wouldn't have time for anything else."
An opponent of the deals
Say someone is charged with a crime and faces 10 years in prison. If prosecutors believe that he's guilty but there's a good chance he will be acquitted, they might offer a sentence of a year.
"I think either they're guilty or they're not guilty," said Albert Alschuler, a professor at Northwestern University's Law School. "You know that whatever the just sentence is, it's not a year."
Alschuler admits that his opposition to pleas puts him outside the mainstream of legal experts. He said that the plea system often isn't questioned because it can offer lower sentences to defendants and frees up prosecutors.
"The argument is the defendant's happy, the prosecutor's happy, why should anyone complain? I think, well, I should start bargaining with my students about grades ... the bargained grades wouldn't mean anything and I don't think the bargained sentences mean much anyway."
Critics also say that when faced with the possibility of a long prison sentence at trial, innocent people can be pressured to make a guilty plea.
In at least three of the six exoneration cases in North Carolina identified by the Innocence Project, the defendant was offered a plea deal. Keith Brown is the only one who took it.
Brown, a man from Wilson who is mentally handicapped, pleaded guilty in 1993 to second-degree rape and second-degree sex offense. He was accused of sexually assaulting a woman and her 9-year-old daughter, and police said he confessed using details of the crime.
"Keith was the kind of young man that he would agree with pretty much anything you said," said his attorney, Robert Farris Jr. "He was very much at the mercy of the system."
In 1997, Brown was cleared by accident.
Evidence from his case was sent along with unsolved cases to Florida authorities, who were investigating a rapist who had once lived in the Wilson area. The evidence matched the man in Florida, and Brown was freed.
If there's a modest difference between a plea offer and the possible sentence at trial, defendants look at their options and can make a reasonable decision, Wright said.
"It's when that gap gets big that I think we need to worry most about defendants giving up on viable claims of innocence," he said.
Darryl Hunt, who served more than 18 years in prison for the 1984 murder of Deborah Sykes, once had the option to walk free if he would admit to something he didn't do and take a plea deal.
In 1990, when he won a new trial in the Sykes case and a new trial in the murder of Arthur Wilson, Hunt was offered this deal, according to his attorneys: Plead guilty to both murders and be sentenced to five years, which Hunt had already served.
Hunt turned the deal down. He was acquitted of Wilson's murder but convicted in the Sykes trial. He spent 13 more years in prison before he was exonerated.
In less-serious felonies, a plea bargain can give the defendant this choice: Risk a felony conviction and lifelong difficulty finding a job, or plead guilty to a misdemeanor and leave the courthouse a free man.
For lower-level crimes, pleas are seen by prosecutors as necessary to get through heavy caseloads. Anyone who has ever had a speeding ticket reduced in exchange for a guilty plea knows this.
In murder cases and other high-level felonies, a prosecutor doesn't want to risk taking a case with holes in it to a jury and losing, Wright said. And although someone convicted at trial can make several rounds of appeals, a plea bargain means that the defendant generally gives up that right.
What's rarely well-understood, attorneys say, is how high the bar is for proving someone guilty of first-degree murder, which is most commonly done by proving that the murder was premeditated and deliberate, or by showing that it was done while the defendant committed another felony, like robbing someone.
Not only do prosecutors have to prove their version, but they also have to counter any reasonable doubts that could be raised by a defense attorney, such as self-defense or provocation.
"All the burden is on the state," said David Freedman, a defense attorney. "If you're going to take away somebody's liberty, it should be."
Among the possible solutions, Alschuler said, is to pay more for the criminal-justice system and to simplify the trial system, perhaps by giving people the option to a trial before a judge.
"We have the most complicated trial process and then we decide we can't afford to give it to more than a small fraction of defendants," he said.
Appeasing victims' families
When a murder victim's family disagrees with a plea offer, there's little they can do.
"You don't have a choice, when the state handles the case and it's the state versus the defendant," said Jackie Robinson, whose son, Johnny, was killed in 2007. Prosecutors offered a plea deal to second-degree murder, which Robinson opposes.
Tracey Maxwell has heard the concerns of Robinson and other families of murder victims again and again in the two years since she started Vigils for Healing, a group that holds vigils at the scenes of murders and has started a support group of families of murder victims.
"These families are not vindictive, they simply want justice," Maxwell said.
Maxwell said she understands that prosecutors, faced with never-ending caseloads, have cases in which there can be good reasons for a plea offer.
"The bottom line," she said, "is that some families report feeling left out of the decision-making process and unclear about the reasons a plea deal is offered."
Victims' families are often upset in part because there's a communications breakdown with prosecutors, she said.
Robinson, for example, was notified two days before the plea hearing. The hearing was rescheduled after she complained.
"Improved communication could be a win-win solution to a lot of the frustration we hear about," Maxwell said. "It could ease the minds and hearts of at least some of the families, reduce time-consuming phone calls and repeated questions to the DA's office, and encourage a feeling of solidarity between the DA's office and the people they are charged to serve."
Keith, the district attorney, recently sent a memo to his prosecutors reminding them to consult with families early on in cases. In the recent cases of miscommunication, the prosecutors involved were handling their first murder cases, he said.
"We need to be more sensitive to people," he said. "We could do better."
■ Dan Galindo can be reached at 727-7377 or at dgalindo@wsjournal.com.
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