Bringing the Judge Into A Plea Bargain

“That’s as low as my office is willing to go for this type of offense.”

This is what the prosecutor tells me. We are talking about the number of hours of community service my client would be required to perform under a plea bargain, and we have deadlocked. This is the only outstanding issue. The difference between us is a mere 16 hours.

She does not say:  “This is as low as I am willing to go.”  Or:  “This is as low as I think is fair given the nature of the offense.” That would be honest. And I could respect her for that.

Instead, with the existence of some vague “office policy” looming over us, she suggests that she will incur the wrath of her supervisors, thereby jeopardizing her career, if she deviates from this number.  The two of us might upset the delicate balance of power in plea negotiations throughout the District of Columbia.

I might be sympathetic to all of this. But I know she is lying to me.

Although I have never tried a case against this prosecutor myself, I did see parts of a trial she did against one of my colleagues. She was not bad at trial. Not bad at all. Most often, however, I have encountered her during arraignments or status hearings.

Unlike the Assistant U.S. Attorneys, who are always moving on to something different, and unlike her colleagues at the Office of the Attorney General, many of whom spend a few years there before finding a job with a firm or as a criminal defense lawyer, she has that smug look of someone who has been doing the same thing for many years and who finally feels comfortable doing it.  Sitting in her mix-and-match suits, she seems to get tremendous satisfaction out of the defense attorneys lining up to see her before court, hats in hand. Yes, Ms. Prosecutor.  How are you this morning?

Undoubtedly, I am also influenced by the fact that I have just learned that she too has been implicated in the scandal last spring in which police officers claimed prosecutors had encouraged them to lie on the stand.  Although it was another Assistant Attorney General who was named in the news, a colleague tells me that there have been similar allegations about this prosecutor, and I can’t help wondering why either prosecutor is still trying cases while the D.C. Bar Counsel’s investigation is underway.

But the real reason I know she is lying is because I have had better offers from other prosecutors on precisely this type of case. If there is in fact a bottom-line number of community service hours her office is prepared to agree to for this kind of case, it is not the number she has cited me.

She is out of the office the next day in court so I am left to negotiate this with a brand new prosecutor. Junior prosecutors are always the worst. Unsure of themselves and eager to impress their supervisors, they are loath to exercise any type of discretion. You’ll have to deal with the assigned prosecutor, he tells me, and she is out today.

So I ask the court for a two- or three-day continuance. We are very close to a deal, I tell the judge. I just need a couple of days to work out some last minute details with the assigned prosecutor.

People suffer from all sorts of misconceptions about the criminal justice system. One misconception is that there is a prosecutor assigned to your case that actually thinks about the case. Underestimating the large number of cases that come through the system, people are always surprised by the assembly-line nature of the process.

Another misconception has to do with the role of the judge during pre-trial negotiations. Just get me in front of the judge, people say, so that I can say my piece.  He’ll see how ridiculous this is and dismiss the case.  What they don’t understand is that pre-trial diversion programs and plea offers are completely discretionary with the government.  The only thing you have a right to is trial.  As a result, it is not a question of convincing the judge of the righteousness of your case but of convincing the prosecutor.

Then again, there are a few times — exceptions to the rule – in which a judge will insert himself into the process, however subtly. In this case, you have a straight-shooting magistrate judge who has been doing this for a while, and when I ask for a continuance so that we can work out some minor matters, he knows immediately what is going on and calls the prosecutor and me to the bench.  And when he finds out the issue that is holding things up in this case, he turns to the prosecutor and says a couple of legal things, the plain English translation of which would be:  Really?  He is not about to allow the court’s time to be wasted with minor matters that should have been resolved pre-trial.

In the end, the prosecutor and I agree to increase my client’s contribution to the Victims of Violent Compensation Fund in exchange for a the lower number of community service hours, and we all go away happy.  For the most part, that is — I am still stewing over the original prosecutor’s representations to me.