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View Full Version : Plea bargaining, right or wrong ?


henry crun
1st May 2003, 17:33
This question arose in another thread in relation to whether or not Galloway should be charged with treason when others, guilty of far more serious offences, go free.

For those not familiar with the case, Anthony Blunt, a long time soviet spy, was granted immunity from prosecution on the condition he cooperated fully with the investigating authorities.

The main reason for this offer was to try to establish the extent to which the UK secret services had been penetrated and to reveal the damage he had done.

There have doubtless been other similar cases.

The question is, are there occasions when the greater national good overrides the need for equal justice for all ?

tony draper
1st May 2003, 17:54
Not sure if the Blunt case was all about national security Henry, more likely saving other establishment figures from embarrasing questions.
I remember reading that Thatcher and Micheal Foot got together with the Speaker of thehouse and agreed to fillibuster at one particular PM question time, so that no questions reguarding the identity of other establishment figures involved in that scandle could be asked from the floor.
Turning queens /kings evidence has been around for quite a while, agree to do the dirty on your partners in crime and you can get if not immunity a much reduced sentence.
Also the idea that Judges here are independent is a joke, they follow orders as well.
The security services have alway terrified the elected bodies in this country, they prolly have files on them all.

slim_slag
8th May 2003, 04:52
Plea bargaining, or what I understand it means, is not like turning Queens evidence.

The prosecution think they have got their man, so stick him with a real nasty charge they might have trouble finding him guilty of. Then, concurrently hit him with a lesser charge which they are pretty sure they can make stick, and which will take him off the streets for a few years.

Used a lot in the States, to great effect.

Juries here are pretty thick, and like to put people away. I only served on a US jury once, and the others seriously thought the accused was guilty because a single cop said she was. The cop contradicted himself and lied on the stand. I said "no way", and got a hung verdict. Not sure what happened next, but the other jurors wanted to send this girl down and leave before the rush hour so they could get home.

So what does the poor accused do if he is looking at 15-20 years on the major charge, and a jury who thinks all people of a certain type are crooks? He pleads guilty to the lesser charge and goes down for five.

Now I am sure the prosecution get a lot of guilty people locked up like this without the hassle and expense of a trial, but is that way to do it?

I'd hate to be in the position of the accused, so I don't break the law. However, it's also safe to walk the streets at night round here, and nobody is going to steal or vandalise your property.

PLovett
8th May 2003, 13:32
Plea bargaining is practiced in the United States. I have never heard of happening in Australia or the United Kingdom.

It is not accepting a lesser charge (which does happen in Australia and the United Kingdom and is properly called charge bargaining) but pleading guilty to the crime as charged in return for a reduced sentence.

Several years ago the ABC in Australia broadcast a documentary on the criminal system in New York state. It looked closely at the practice of plea bargaining and did not portray a pretty picture.

Person gets charged with a felony, cannot make bail (which is set at a ridiculous figure), wants to plead "not guilty" and may well have a reasonable defence. The prospect is 18 months to 2 years on remand in some rat-infested hell-hole like Rykers Island before going to trial and the prospect of being found guilty with say 4 years incarceration to follow, not back-dated to date of being taken into custody.

However, plea of guilty gets a sentence of say 2 years with minimum of 12 months before parole.

What made the whole system laughable was the judge asking the defendant whether any pressure had been brought to bear on the defendant to make him plead guilty.

Charge bargaining happens frequently. The prosecution charges the defendant with what they believe is the appropriate charge, which usually has a number of alternate charges. For example, murder has an alternate of manslaughter.

Defence lawyer, with client's instructions to do so, goes to prosecutor and puts proposition that prosecution may have trouble getting case up (onus is on prosecution to prove case beyond reasonable doubt) but if prosecution was willing to go with alternate charge, defendant will plead guilty.

If the prosection case is strong they will tell you to do something physically impossible, if not they will accept as court time is limited, especially in magistrates courts.

Some people may feel that justice is not being done but in my experience, I believe the system usually got it right. I realise that is a massive generalisation and I can think of some cases where it got it wrong but given the number of cases that go through the courts each year the system mostly worked.

Paterbrat
8th May 2003, 21:45
As is so often the case I find it most instructive to hear the various angles put on by others and more so if the others seem to know what they are talking about. I have often wondered about this legal manoever and we generaly only get it on the television in a dramatised and sometimes slanted/inaccurate portrayel of what has evolved through human interaction within a set of, albeit sometimes flexible, boundaries. The idea of someone getting away with something is distastefull, as in Blunt's case, however one has to bear in mind the quid pro quo.

slim_slag
9th May 2003, 05:00
PLovett

Plea bargaining is practiced in the United States. I have never heard of happening in Australia or the United Kingdom.

It is not accepting a lesser charge (which does happen in Australia and the United Kingdom and is properly called charge bargaining) but pleading guilty to the crime as charged in return for a reduced sentence.

I'm not sure I agree. It's accepted practice in the UK to give a discount for pleading guilty, otherwise why would anybody plead guilty?

In the US Federal system, politicians got so tired with Judges using their knowledge of a case to set an appropriate sentence, they legislated sentences in the Federal Courts. They also legislated the discount for a guilty plea, I think it's set by statute at 15%. You can easily go down for 20 years in the Federal system as the sentences are so harsh, so the difference to the accused between 17 years and 20 is not much. Result was few people plead guilty, hoping the jury would find them not guilty. Its worth doing if there is little risk of doing so.

I think the lawmakers attempt at being judges also means you only get 15% off for good behaviour in prison, so nobody behaves.

A quick google search of "plea bargain" came up with the following definition:

A negotiation between the defense and prosecution (and sometimes the judge) that settles a criminal case. The defendant typically pleads guilty to a lesser crime (or fewer charges) than originally charged, in exchange for a guaranteed sentence that is shorter than what the defendant could face if convicted at trial. The prosecution gets the certainty of a conviction and a known sentence; the defendant avoids the risk of a higher sentence; and the judge gets to move on to other cases.

Nolo (http://www.nolo.com/lawcenter/dictionary/dictionary_listing.cfm/Term/32498033-A44D-4965-A29C4EB43B194F0B/alpha/P)

There is no such term as "charge bargain" in their legal dictionary.

That's my laymans understanding of the term.

PLovett
9th May 2003, 07:53
slim_slag

You are quite right and I should have explained more fully.

There is a discount for pleading guilty in Australia and I suspect the United Kingdom. My experience was that it was most often applied in sexual cases where a discount was given for not putting the complainant through the further trauma of having to give evidence. There were also many cases where a guilty plea was taken as an indication of remorse and a lesser sentence given.

I have also seen the converse where a heavier sentence was imposed due to the fact of the defendant pleading not guilty and forcing the matter to trial.

My understanding of the American plea bargain was that a very firm indication of sentence was given in an inducement to plead guilty. This indication was given by the judge who would try the case if it came to trial.

I believe in some jurisdictions in Australia there is a preliminary stage where an indication of possible sentence is given if the defendant were to plead guilty. However, it was not tried in the jurisdictions where I worked.

In representing clients over about 10 years in Australia I was never given any indication as to what sentence would be imposed prior to the actual announcement in court.

Flying Lawyer
9th May 2003, 20:39
We don't have American style plea bargaining (see the definition Slim_Slag found) in the UK.
Prosecution and defence barristers may haggle over what pleas the prosecution will accept, but the negotiations do not involve the Judge and the prosecution have no power/influence over the sentence the judge will impose.

All defendants are given a reduced sentence if they plead Guilty. The amount of that discount depends upon a number of factors. eg Whether the defendant pleaded Guilty at an early stage or waited until the day of trial. Whether he was caught red-handed and had little option etc.

When I started at the Bar, judges could sometimes be persuaded to give 'an indication' of the likely sentence (never the precise sentence) which they might impose if the Defendant pleaded Guilty/if he pleaded Not Guilty and was convicted - but that was stopped many years ago. One of the several reasons was that it was regarded as putting unfair pressure on a defendant: What does an innocent man do if he's told he won't go to prison if he pleads Guilty, but will if he fights the case and loses?

The Prosecution do sometimes charge a more serious offence in the hope of inducing a defendant to plead Guilty to a less serious offence. Opinions vary about whether that is fair.

Edit
Draper's comment - "the idea that Judges here are independent is a joke, they follow orders as well" - is simply not true. I've long since given up trying to explain to him, but don't want others to be misled.

Woff1965
16th May 2003, 08:56
A defect in the plea bargaining system used in the US that I was told about by a US law student concerned the following example-

1) a real crook arrested on (say) vehicular manslaughter charge pleads his charge down to a lesser offence in return for a lighter sentence because he can testify against other criminals and provide the police with intelligence.

2) a normal citizen charged with the same offence can't give anyone up nor testify against anyone else - he can try to plead the offence down but he will NEVER get as good a deal as the crook.

Like she said crime can pay.

The end result is that in a system like that the innocent lose out and criminals may well admit to crimes they did not do to avoid heavier sentances for the ones they did. Ultimately society and Justice are the real victims of this practice and thank god it is not here yet.

The Filth
30th Jul 2003, 01:51
Flying Lawyer

...and the prosecution have no power/influence over the sentence the judge will impose.

True in the majority of mundane (sic) cases, though if you include the police themselves within the term 'the prosecution,' certainly in criminal trials originating from the Metropolitan Police area, it could be argued the prosecution do have the power to influence sentencing judges via an internal police document known as 'a text.' Admittedly, the document is only used when it suits the police, i.e. to get a current informant, or more importantly, a participating informant, a reduced sentence, but the facility is there nonetheless.

Flying Lawyer
30th Jul 2003, 08:05
Filth
The 'text' system exists generally, not just in the Met Police area. However, I reckon (based simply on experience, no national stats exist) that it's used in no more than about 0.001% (possibly fewer) cases which go through the criminal courts every year. The amount of discount off sentence is up to the judge who simply says he will take it into account.
The 'text' may say the man's been a helpful informer, and may even say the sooner he's back in circulation the better it is in the interests of catching other serious criminals, but that's as far as it can go.

In an unusual sentencing case, a judge may discuss possible sentences with other judges over lunch in the same way as the rest of us bounce ideas off other people, and the Court of Appeal sometimes issues guideline cases suggesting the 'bracket' of sentences for certain ofences but no-one, under any circumstances, ever tells a judge what sentence to impose.

BlueWolf
30th Jul 2003, 18:23
This situation is only ever present, or a problem, in countries which employ the adversarial justice system. Such countries include the UK, the USA, Australia, New Zealand, as far as I know Canada, and any number of others.

Under the adversarial justice system, judges and jurors are required to decide innocence or guilt according to the two scenarios presented to them by the prosecution and the defence.

No deviation from these two scenarios is allowed, and both may be absolute fiction; but a verdict, one way or the other, is required nonetheless.

Under the inquisitorial justice system, employed in a number of European democracies, it is the truth which is sought; this may differ from either or both of the cases put by the protagonists in any given case. Guilt or innocence is then decided on the basis of the truth found by the inquiry.

Is this food for thought, or should we stick with a legal system which delivers nothing in the way of guaranteed justice, just because it has become tradition and because lawyers make lots of money out of it?

The Filth
30th Jul 2003, 18:30
Flying Lawyer

The 'text' system exists generally, not just in the Met Police area.

That I'm sure. I could only comment in relation to Met. / SERCS trials.

However, I reckon (based simply on experience, no national stats exist) that it's used in no more than about 0.001% (possibly fewer)

I have no comment on the percentage you quote, but I do concede it's a seldom used tool. And the police only have themself to blame for that.

Edit

...but no-one, under any circumstances, ever tells a judge what sentence to impose.

But of course. My earlier input was in relation your use of the word influence,the sole purpose for police submitting a text.

McIce
30th Jul 2003, 19:37
Plea Bargaining in Glasgow is a necessary evil in order to make the court run.
In each court the Fiscal (Barrister) has approx 15 trials to deal with on a daily basis.
Court starts at 9:30 for all of them and they all get called in turn to see how they are pleading. Everyone who turns up pleads Not Guilty to everything they are charged with.
A warrant gets issued for those who dont turn up, that gets the fiscals case load down to about 8. A quick look at the witness lists to see who has turned up and another 2 or 3 trials are ajourned to another date.
A bit of plea bargaining with the lawyers for those who are left and the 3 serious assaults someone is charged with gets reduced to a Breach of the peace and common assault and a plea of guilty is tendered by the accused.
Judge of said court then smacks the bad boy/girl on the wrist (as we now have trivial charges) before they leave court and tells them not to do it again.
The fiscal then looks at the 1 case they have left (usually the one with the least amount of crown witnesses makes it this far) reads the paper work for the first time and a trial begins.
During the trial the only thing that is really apparent is that there is no way it will run on to the next day as that would cause havok.
Now thats justice and why we live in the society we do today.
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