You don't see this ever day:

DA faces contempt hearing in plea deal

The Brown County district attorney faces a contempt of court hearing amid allegations that he lied to a judge to obtain a plea agreement in a sexual assault case.

At a June 5 hearing, Sky Sudderth said the victim and her family approved a plea deal for Albert Andrew Atwood, who had been set to stand trial June 9.

State District Judge Steve Ellis then approved the agreement in which Atwood, 39, received eight years' deferred adjudication. Atwood pleaded guilty to one count of prohibited sexual conduct.

The state waived four counts of aggravated sexual assault and one count of prohibited sexual conduct.

Several days later, the victim and several relatives wrote letters to Ellis, saying they did not know about the plea agreement until a sheriff's investigator told them. They say they never would have approved the deal because they are afraid of Atwood.

http://www.dfw.com/mld/dfw/news/state/6122652.htm

As most probably know, DA Sudderth was ultimately held to have engaged in contumacious conduct and was fined $500 (but that was suspended on condition of attendance at an ethics course). His situation raises an interesting issue. How many courts routinely require that the victims in criminal cases "approve" of the punishment recommendation made by the State prosecutor in return for a guilty plea before they will in turn accept the recommendation? It seems this policy presents several problems for the prosecution. Many judges apparently request that the victim agree a deferred adjudication is in his/her best interest before they will approve a plea bargain in a case which requires "a finding in open court that placing the defendant on community supervision is in the best interest of the victim" under art. 42.12, sec. 5 (a), CCP. But, I am told Judge Ellis requires victim approval of the terms of all plea bargains. Are there other judges who have adopted similar policies?

[This message was edited by Martin Peterson on 07-19-03 at .]

DA fails to comply with contempt agreement

He agreed to resign position by Friday

Associated Press

BROWNWOOD -- The Brown County district attorney did not resign by 5 p.m. Friday, as expected.

Sky Sudderth, who has been found guilty of contempt of court, had agreed to resign at the end of the week. But he later rescinded that statement, the Abilene Reporter-News reported this week.

Gene Acuna, spokesman for Gov. Rick Perry, confirmed to the Associated Press on Friday that the governor received no resignation letter and that Sudderth still holds office.

Special prosecutor Burt Burnett said he will decide next week what action to take if Sudderth does not vacate the post.

Sudderth was convicted July 7 of lying to obtain a plea bargain for a sex offender.

He had agreed to resign by Friday and pay a $500 fine for the conviction, terms written by Burnett. The fine was suspended, pending Sudderth attending an ethics course Aug. 29.

On June 5, Albert Atwood pleaded guilty to prohibited sexual conduct, and Sudderth dropped five counts. Atwood was sentenced to eight years' deferred adjudication, which means the offense will be cleared from his record if he completes the terms. The judge accepted the plea after Sudderth said the victim and her family concurred.

But after the hearing, the victim and her relatives sent letters to Ellis saying they knew nothing about the plea agreement until it was over and never would have approved it because they wanted Atwood to serve prison time.

". . . deferred adjudication, which means the offense will be cleared from his record if he completes the terms."

AP story-writing rule #1: Don't let some concept as vague as "the truth" stand in the way of good journalistic story-telling.

What concerns me about this is the potential that a family might agree and then change their mind and cry foul. We frequently have judges here ask if a victim/family agrees in sex cases and of course we answer truthfully yes or no (with an explanation as necessary). In many cases the family is there so they can confirm their agreement if they agree (or explain why they disagree if necessary but we very rarely make a rec against the family's wishes). But some don't want to come to court because it is too emotional, etc. and so the judge just has our word based on what the family told us. While I certainly condemn lying to the court and maybe even[facts are not clear in this case]not even bothering to contact the victim (who was obviously not in court for the plea), this whole situation makes me wonder whether, when the family is not planning to come to court, any steps other than noting the file as to their agreement now need to be taken just to assure there is no false claim of betrayal in the future. Never had that problem before but in light of the current trend of judicial questioning and the potential consequences of a charge of lying demonstrated by this case it might be something to be cautious about I think.

Why isn't their opinion in the PSI? The PSI writer should always be contacting the victim and obtaining their opinion. Then you would have clear documentation of their position on the punishment.

Thanks for the suggestion. Our Probation Department does not usually contact victims and they never ask victims what they want as far as punishment. Plus the PSI is often prepared before a plea bargain is finalized so a victim's agreement to terms would not be able to be recorded there. But certainly think that in cases where the PSI has not yet been prepared at the time the agreement has been reached, the probation office could be prevailed upon (I hope) to do a little additional work to make an entry regarding the victim and I will look into that in sensitive cases.

In the Brownwood case, the victims are the ones who said they would not have agreed to the plea agreement. The judge never indicated that he required the victim's agreement. The Court was upset that the DA misrepresented to the Court that the victims knew of and did not object to the plea.

You make an important point. The law does not require the victim's agreement. Indeed, the law expressly indicates that a victim has no standing to challenge a plea agreement and can't get a sentence undone for failure to be kept informed. But, the law does give the victim the right to be kept informed and to have the judge consider the victim's viewpoint in deciding whether a particular sentence is in the defendant and victim's best interest (whatever that means).

It is partially because the law does not require the victim's agreement that I posed my query. While I have not spoken directly with Judge Ellis, an informed source has told me that he indeed has the policy which I describe above. My question is whether his position (assuming I am correctly representing it) is unique or has been adopted other places than in the 35th District. Since the court has authority to reject any and all plea bargains, I suspect the court can adopt any policy regarding their implementation it chooses. I have doubts whether such policy really serves the public good.

If Judge Ellis does, in fact, have that policy, then I can see how it could cause problems. Most judges trust the prosecutors who work in their court, so even if a victim does not agree with a plea, the Court knows there must be a good reason for the State to make the offer that the victim disagrees with. Unfortunately, the Judge and DA in Brownwood do not have that relationship and trust. And in the Brownwood case there is probably more to it than what the public knows.

Since the case in question was apparently a plea to a 21.11 offense, requiring the judge under 42.12(5)to make a finding in open court that deferred adjudification =) was, "in the best interest of the victim," isn't that practically the same as saying the victim must agree? It would be pretty amazing for a judge to declare "best interest" of a victim who disagreed with probation.

If a prosecutor has a case with a 4 year old child who would make for a difficult witness and the defendant is willing to take probation, I can certainly imagine a judge could find it in the best interest of the child to impose the probation rather than risk a not guilty and a return to the abuser.

O.K., let's follow the continuum of that scenario: Defendant is Dad (or Mom) whose spouse denies it ever took place due to a lack of overwhelming physical evidence. Being on deferred probation doesn't seem like much of a barrier to repetition of the crime. Maybe it's better sometimes to lose one than give one away.

That is, of course, a very difficult decision. And of course I would rather see a conviction and prison sentence. But, deferred adjudication is not such a weak choice in every case.

Lifetime registration, electronic monitoring, neighborhood notice, no contact with children, intensive counseling, polygraphs, etc. can be effective ways to keep an eye on a pedophile.

And, a violation can lead to the long prison sentence you want in the first place. We have gotten adjudications and life sentences for forgery of AA sign in sheets. Just depends on how your judge views these things.

Anyone who doesn't think a deferred in a sex case can be important just needs to take a look at Sec. 12.42 of the Penal Code. For purposes of enhancement, a defendant who previously recieved a deferred for indecency or sexual assault is subject to an automotic life sentence if that person commits another sex crime.

I am confused. I thought 12.42 says convicted of a crime under defined sections. I thought deferred adjudication was not technically considered a conviction unless guilt is adjudicated. If defendant serves out his deferred adjudication isn't his record cleared? How does that fit under 12.42? Additionally I am not clear whether the charge he pled to was under 21.11, 22.011, or 22.021, couldn't it have been a 21.07 all I see from the information here is that it was prohibited sexual conduct. 21.06, 21.07 and 21.08 all fit that description in my interpretation.

The word "conviction" means anything the Legislature says it means. As to sexual offenses, the legislature decided that pleading guilty and receiving deferred adjudication was the same as being convicted, even if no actual conviction is entered. See Tex. Pen. Code sec. 12.42(g)(1). Confusing? Only if you believe that language should have consistent meaning.

From a local TV station:

Sudderth still in office



BROWNWOOD -- Friday, was the day Brown County District Attorney Sky Sudderth's resignation was supposed to go into effect. However, a spokesperson for Sudderth told News 12 that the embattled DA is not resigning. A big reason for that is an agreement Sudderth made with special prosecutor Burt Burnett. In their agreement, Sudderth would resign..and in-turn there would be no further prosecution Judge Steve Ellis did not approve that agreement and Sudderth questions if the agreement will be upheld without court approval. Burnett tells News 12 that the deal was created and written by Sudderth and his attorney....and he doesn't know why its validity is in question now. This all stems from a contempt of court conviction for the DA earlier this month. Burnett says he will make a decision next week on what action to take against Sky Sudderth.

DA Sudderth is now facing a removal petition.

removal article