The Plea Bargain Prosecution of the Innocent

By Curt Chancler & Jeanne Wollman

One intent of those writing the Constitution and the Bill of Rights was to restrain the judicial branch of government and protect the people. They knew unfettered courts could wreck havoc on our nation. They took into consideration that it was the nature of man to desire money and power so they proceeded with a Constitution intended to protect people from the government. Remembering the inherent evil of England’s Star Chamber Court and the nature of man, our forefathers agreed that protection of the rights of both the alleged criminal and the victim (often times alleged victim) were equally important.

Today however, more than 90% of the time the emphasis of the prosecuting attorney is to enforce a plea bargain rather than to protect the rights of the accused or the victim. The plea bargain eliminates the need for a case to come to trial before the court or a jury. Our government, through statutes, has instituted a system that denies us our constitutional right to jury by trial, which is extremely detrimental for those caught up in the system. America’s courts of today rely on and thrive through the use of “case law,” which totally circumvents our constitutions more often than not.

The most pre-eminent danger of the plea bargain is that too often the innocent are pressured into a plea out of fear and threats by the police and prosecutors. That results in unequal treatment of crimes and violates the constitutional right to have the case heard by a jury. Due to this issue some states have prohibited plea bargains, but “informal chats” continue to circumvent this prohibition. These “informal chats” have often convinced an innocent person or one guilty of only a minor crime that it would be better to plead out rather than take a chance in the courtroom. Guilt or innocent has become a roll of the dice outside the purview of the court. Like the Star Chamber, our courts driven by blood lust for money and power, allows the prosecuting attorney to bypass all constitutional safeguards. Countless times circumstantial evidence has replaced proof.

To add insult to injury it has been found that those who choose to go to court are often more severely punished than those who “plea out.” The prosecuting attorney has deliberately “thrown the book” at a person charged with a crime in order to successfully enact a plea bargain. Then the prosecutor can accept a plea to a lesser or single crime which he enters and routinely is accepted by the court. However, if the defendant prefers to go to court, all the charges manufactured by the prosecuting attorney may be and usually are entered. The one charged may well suffer far more severely than if the plea bargain had been accepted. This is very reminiscent of the Star Chamber proceedings of old!

As defined by Black’s Law Dictionary the Star Chamber Court had broad civil and criminal jurisdiction as directed by the King. This Court was noted for its secretive, arbitrary and oppressive procedures, including compulsory self-incrimination, inquisitorial investigation, and the absence of juries. How does this differ from a plea bargain orchestrated by the prosecuting attorney and accepted by the court?

As it is against the law in many states to plea bargain, the District Attorney’s offer often comes in the form of an “informal chat” between the prosecutor and the defendant’s attorney. This “chat” is off the record and out of sight of the court. It may come after harassment by the police and even time in jail. The accused is offered, in the absence of a judge or a jury, a “deal.” This “deal,” made out of sight of all legal safeguards for the rights of the accused, can involve forced self-incrimination, and even forced lying to the court in order to plead a lesser charge agreed upon in the plea bargaining session. How does this differ from Star Chamber confessions or confessions reached in tribunal courts of the old Soviet Russia or even closer to home—the Salem Witch trials?

If the accused insists on his rights to a jury trial the prosecutor, the judge and often the defense lawyer are all in too much of a hurry to dispense with the case. They don’t have time to defend the very rights they took a Constitutional oath to uphold! This is particularly true if the accused is indigent and requires a court appointed attorney. By court contract the defense attorney can be under severe financial constraints, which facilitates his desire to end the case quickly, and the judge wants a conviction before the money runs out and all too often the prosecutor wants to make a name for himself and rack up another notch on his belt. Next, for whatever reason, information is often withheld or not presented to the jury. Then the jury is told they can only rule on the case and not the law.

Obviously, the accused, due to all of the above, cannot and will not have his case fairly judged by the jury. Jurors do not have all the evidence nor are they able to say the law is not acceptable in the case before them. Even worse is when the District Attorney forces a plea bargain through scare tactics and coercion. Justice may be blind but it should not be deceptive or unfair.

Our founding fathers envisioned the people who held the title of Prosecutor to be servants of the truth and champions of justice for the victims of crimes against the people. The prosecutor’s sword of justice was to be double edged. In the quest for truth and justice the prosecutors were to find and convict the guilty and ensure that the innocent not be wrongly convicted or oppressed. Also they were mandated to protect the victim. Unfortunately today, more often than not, that is not the case.

The courts and others prefer plea bargains because it cuts down on court time and money, and often makes it possible to obtain information on other crimes. Serious offenders often prefer to plea bargain as it can substantially reduce the penalty for their crimes. The victim suffers greatly under this system as they do not receive justice or their day in court.

The twisted evolution and perversion of our judicial system has left us a monster that our founding fathers made every effort to avoid. Our legislators share the blame for giving our prosecuting attorneys the enormous power to plea bargain. Over the years the subversion of our constitutional rights of protection for the people and control of the government has lead to a situation that guarantees the loss of our rights in our court system. Even worse it guarantees control over the people by the courts.

The most obvious recent example of this is the Terry Schaivo case. Although not a criminal case the behind the scene dealings and heavy handedness of the court system was obvious and rampant. There was no justice dealt that day!

As in the Star Chambers of the 15th and early 16th centuries, plea agreements too often gain convictions from the innocent as well as the guilty. These are obtained through:

1. Prosecutors making charges of a much higher crime that carries a very long sentence knowing they could not prove their case at trial, but also knowing the charges will create high bail and huge attorney fees for the accused.
2. Prosecutors adding multiple charges that he knows he cannot prove, but also knowing the defendant hasn’t the money to defend against.
3. Prosecutors manufacturing testimony against the defendant and then threatening to prosecute his friends or family if they do not testify against the defendant. Before you say, “He can’t do that!” Remember, in the case of IMBLER v. PACHTMAN, 424 U.S. 409 (1976) the Supreme Court held that a state prosecutor acting within the scope of his prosecutorial duties was absolutely immune to civil suit for damages even if the allegations of wrongdoing were true.
4. Prosecutor’s using their ability to bring charges against a defendant for a nominal amount compared to what the accused has to pay to defend his case. It must be remembered that the Prosecutor’s money comes from the people so the defendant to defend himself must pay twice. Once for the system that prosecutes him and again for his own defense! This may cost him and his family their homes and their life’s savings, whether he is guilty or innocent. If using a court appointed attorney, then even more taxpayer dollars are expended on possibly trumped up charges. Then there is the enormous cost to the taxpayers of any imposed jail time.
5. The prosecutor’s use of the media to publicize his side of the case (in the local newspaper), which absolutely prejudices the jury pool in that community against the accused.

Another result of the upgrading of charges from a misdemeanor to a felony by the prosecuting attorney is the loss of the valuable rights to vote and to own a gun if convicted.

All in all, the use of the plea bargain benefits no one but the system. Our Constitution and Bill of Rights was written in order to prevent this Star Chamber mentality from being imposed. However, due to our neglect and lack of attention we have allowed those hungry for power, money and fame to deny the people of a free and open court hearing of all the facts of a case. They have taken us back to the days of torture and self incrimination. It must be remembered that to be coerced into a plea bargain in order to save yourself or your family is a very real form of torture. It too often happens in our courts today and one of the chief participants in this charade is the prosecuting attorney, your local District Attorney.

You have the duty to closely examine the person running for the Office of District Attorney. You have the duty to demand that that person not run time after time unopposed. You have the duty to demand that the prosecuting attorney not act as judge and jury as he implements and forces plea bargains upon the accused rather than a trial in open court before a jury of his peers.

Editor’s Note: When your District Attorney brags about having a 90 plus percent win rate, please realize that his office won many of their cases by using the coercive power of the plea bargain…