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February 9, 2020

"A lawyer argued that plea deals are unconstitutional. Now the DA won’t bargain with her."

The title of this post is the headline of this interesting article from the Washington Post reporting on a notable squabble over plea bargaining in the Lone Star State.  Here is a excerpt from an article worth reading in full:

Inside a Tom Green County, Tex., courtroom in October, a woman facing a misdemeanor forgery charge was about to lose her appointed lawyer.  That afternoon, the woman’s soon-to-be former defense attorney, Patricia Stone, was joined by a judge to explain to the defendant why Stone could no longer represent her: The district attorney in Tom Green County was trying to enforce a policy, pertaining only to Stone, that required her to sign a waiver against her beliefs for prosecutors to discuss plea deals for her clients....

The defendant was among more than 10 clients Stone was forced to give up as a result of a targeted policy devised by Tom Green County prosecutors, according to a federal lawsuit filed in October.  The complaint names district attorneys Allison Palmer and John Best and accuses their office of silencing Stone’s First Amendment views and retaliating against her for making the argument in a separate appeals case that plea bargains are unconstitutional.  The lawsuit seeks damages, a jury trial and an injunction to prevent the county from continuing to enforce the waiver requirement against Stone.

Stone told The Washington Post in an email that the prosecutors are exercising a kind of power they were never meant to have.  “In this case, the DA is saying, ‘we are going to dictate the legal arguments you can make, and if you don’t agree we’re going to make sure that your other clients don’t have the same right to justice as everyone else,’ ” Stone wrote. “They are trying to make me sell out one of my clients to do a good job for the others, and I won’t do that.”...

According to Stone’s lawsuit, Tom Green County prosecutors soon refused to negotiate pleas unless Stone signed a so-called “additional admonishment” that included the phrase: “In no way do I believe this defendant’s plea of guilty in exchange for the State’s punishment recommendation in this case to have violated my client’s constitutional rights, including his due-process rights.”  Stone refused and said the ultimatum forced her to withdraw from her cases in the county.

February 9, 2020 at 08:46 PM | Permalink


Plea bargaining should be either be outlawed completely, or the prosecutors and judges should be limited to the amount of years offered should the defendant decide to go to trial (i.e., end the trial penalty scam where if the defendant loses his or her trial, the sentence is then expanded outrageously: the veritable definition of cruel and unusual punishment).

Posted by: restless94110 | Feb 10, 2020 9:14:17 AM

Sorry, I refuse to accept the "trial penalty" framing. Instead I see it as "plea leniency". A great deal of which, in the typical case, is that the prosecutor is willing to forego charges that both sides know could easily be proven.

Posted by: Soronel Haetir | Feb 10, 2020 11:17:14 AM

One man’s trial penalty is another man’s plea leniency. Either way it can be incredibly coercive (I say this as a career prosecutor). It is especially coercive when it comes from the court. I have always preferred prosecuting the murder cases where plea-bargaining was nearly non-existent. There it was all about proving the case, not finding ways to settle.

I think plea-bargaining is a necessary evil but I also think we should exercise it very carefully and not offer ridiculously large discounts for a guilty plea. There is some value to the maxim of “plead what you can prove and prove what you have pled.” It has the added benefit of attempting to reflect what actually happened as opposed to some proxy. However, the progressive view (my County is that kind of County) is to exercise vast amounts of discretion in favor of the defendant which institutionalizes the coercive effects of very favorable plea offers and distorts the truth. This is a net negative in my view.

Posted by: David | Feb 10, 2020 9:58:35 PM

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