quote:

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Their legal responsibility isn't just to represent the state in seeking convictions; it's to pursue justice.

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Ah, how sweet it is to practice in a State where, as Clay Abbott points out, we do not meekly "pursue" justice but boldly sally forth to DO justice. That my friends makes all the difference.

As for the rest of it, weren't the Federal Sentencing Guidelines enacted to fight the evils of the capricious and arbitrary judgments of the federal judiciary? The reveiws are in and they have been deemed a less than unqualified success, if I remember my SCOTUS jurisprudence.

The premise for her book, as expressed in the article, appears to be completely wrong. As we all know, a judge has to approve all plea agreements. Moreover, charging someone who has a small amount of a controlled substance with possession with intent to deliver, is simply not done since the evidence would be insufficient. Unless all defendants have a potted plant for a defense attorney, none of this would be possible. We have a system in place that is regulated by judges with a series of appeals and rights to a writ of habeas corpus. Simply attacking prosecutors is not the answer. It may, however, be the answer to selling books.

So how about we take a deep breath and look at the initial assertions in this article - that "charging and plea bargaining power ....almost predetermines the outcome of most criminal cases" and that "too often, prosecutors exercise their discretion haphazardly at worst and arbitrarily at best, resulting in inequitable treatment of both victims and defendants."
We all know that the first contention is true - charging decisions and plea bargaining are pretty much determinative. As to the second contention, it's pretty much accurate that there are no clear guidelines for discretion. Although we all try our hardest not to be exercising our discretion haphazardly or arbitrarily, how do you articulate this to the public?
The problem I see is that this professor is equating "arbitrary/haphazard" exercise of discretion with real prosecutorial misconduct such as fabricating or hiding evidence.
I know that in our office we have regular discussions about factors that should be considered in charging and in making offers, including discussions about filtering race, family, economic condition out of the equation when evaluating cases. I don't know if that is common in other offices, and I don't know if much larger offices have more formalized procedures.
Yes, this professor is silly, and yes, "in-depth investigations to determine the adequacy of current prosecutorial misconuct controls" is a supremely misguided idea - but we shouldn't think that the public will always trust us just because we try really realy hard to be trustworthy.

[QUOTE]Originally posted by BLeonard:
Ah, how sweet it is to practice in a State where, as Clay Abbott points out, we do not meekly "pursue" justice but boldly sally forth to _DO_ justice. That my friends makes all the difference.[QUOTE]

And after seeing your argument style at the June seminar, Ben, I can say to those who don't know you that you could deliver this phrase with all the verve and emotion it demands!

As the updated version of the Perfect Plea will show, there are already lots of rules that restrict and guide plea bargaining. To say that prosecuters have unfettered discretion is to simply be ignorant of the law.

First, the defendant does have the power to demand a jury trial. He doesn't have to take the state's offer. He largely accepts it because he finds it would be better than what a judge or jury would give him following conviction on a plea of not guilty.

Second, most defendants have a lawyer who relies on his professional experience to advise the defendant on the appropriateness of the offer. That offer is not made for the first time. Thousands and thousands of defendants before him got a similar offer under similar facts.

Third, a judge must go through a series of warnings to make sure the defendant is pleading voluntarily. The defense attorney almost always goes through them with the defendant before the judge reviews the warnings. Most of the time, those warnings are delivered in writing.

Fourth, a defendant must stand up in court and say out loud that this is what he wants to do. There is a prosecutor, defense attorney and judge present to review his claim. Any doubts that are raised are resolved before the plea is accepted.

Fifth, if the defendant thinks anything was done incorrectly, he can, under limited circumstances, appeal the decision, particularly if he receives permission from the judge. Of course, he could just file a motion for new trial.

Sixth, the defendant can always file an application for writ of habeas corpus, alleging the guilty plea was involuntary or that his attorney was no darn good.

That seems like a pretty good start for due process. Let's leave out the role of the elected DA in reviewing plea bargains (I read docket sheets every day and look for irregularities, asking lots of questions of the prosecutors.), the media in reporting the disposition of cases and various other oversight organizations (even TDCAA).

Who, exactly, reviews the work of a professor?

If a prosecutor files a case based on the evidence presented to him/her, then the contention that "charging and plea bargaining power ....almost predetermines the outcome of most criminal cases" is not news. However, the author makes it sound as if we can "overcharge" and thereby affect the outcome of a case. If the facts demonstrate a Class A Assault, filing it as an Aggravated Assault is not going to change anything.