A couple of years ago, I was representing a client on a prostitution solicitation charge in Philadelphia. I had worked out a deferred prosecution agreement with the government according to which the assistant district attorney would postpone prosecution and then dismiss the charges against my client if he successfully completed a period of 9 months of probation.
As my client and I were sitting in the courtroom waiting to formalize the agreement before the judge, another lawyer was challenging the same charge at trial. Obviously very talented, and a showboat to boot, the lawyer was entertaining the gallery with his vigorous cross-examination of the arresting officer. It was only the judge – the person who would be determining the verdict — who did not seem all that impressed with the lawyer’s theatrics.
My client began to fidget in his seat as the trial continued, and I realized that he was thinking about changing his mind about the deal. Just wait, I told him. You haven’t heard the judge’s verdict yet.
Sure enough, despite the lawyer’s valiant effort, the judge took all of two seconds after the closing of argument to convict the defendant of the charge. When the judge proceeded to sentencing and the district attorney detailed a long list of the defendant’s previous convictions for both prostitution solicitation and other offenses, it quickly became clear why the defendant had taken the case to trial: with such a bad criminal history, deferred prosecution was not an option. And when the judge meted out a sentence that included some jail-time, my client leaned back in his seat. Suddenly his decision to enter into the deferred prosecution agreement looked a whole lot more attractive.
Courtroom theatrics aside, prostitution solicitation cases are generally pretty difficult to beat at trial. You have a police officer testifying, not a civilian witness, and judges tend to believe police officers. While some defendants say they were merely flirting or fooling around and never intended to go through with the act, merely discussing a sexual act in connection with money can be construed as making out the elements of the offense. And the defendant must still explain what he was doing in a bad part of town talking with a stranger. That’s why the “sufficiency” argument usually fails.
While the police officer will occasionally mess up some of the paperwork (getting the race of the defendant wrong, for example), the defense of mistaken identity is virtually impossible to make under these circumstances. Biographical information provided by the defendant – to say nothing of the fingerprints now on file – suggest that it was the defendant who was arrested that night. The old “some other guy did it” defense just isn’t going to cut it here.
Finally, the defense of entrapment, as least in most jurisdictions, is virtually impossible to make. In order to prove entrapment in D.C., for example, the initial burden is on the defendant to show that police used persuasion, fraudulent representations, threats, or other coercive activities to induce him to commit a crime which he would otherwise not have committed. The burden then shifts to the government to prove that the defendant was predisposed to commit the offense. According to D.C. law, a simple request by police to engage in criminal activity, standing alone, is not an inducement. Police are also permitted to use decoys and undercover agents as long as they merely afford an opportunity, not an inducement, to commit the criminal activity.
In this light, the deferred prosecution agreement currently offered in D.C. for first-time offenders looks pretty good. After three negative drug tests, the defendant enters into an agreement with the government requiring him to perform 16 hours of community service over a 4-month period. The charges are withdrawn upon the successful completion of these conditions, and the defendant ends up with no conviction on his record. He can also petition to have his arrest record sealed after two years.
A deferred prosecution agreement may not be the most exciting thing to do, but it is usually the preferred option in this type of case. Unlike a trial, which always involves the risk of a conviction, things are completely within the client’s control when he enters a deferred prosecution agreement. If he completes the conditions successfully, he knows that the charges will be dismissed in the end.