[00:00] Introduction: Welcome to Registry Matters, an independent production. Our opinions are our own, and we take no directions from anyone else. Our patrons make what we do here possible. And always remember, F.Y.P.
[00:20] Andy: Recording live from FYP Studios East and West, transmitting across the internet, this is episode 377 of Registry Matters. Larry, my old friend, how are you this evening? Doing awesome. How are you? I’m fabulous. So let’s just get going and dive in. Tell me what we’re doing tonight.
[00:44] Larry: I think you missed something you were supposed to do.
[00:47] Andy: Oh, I am supposed to ask you. Sorry, sorry, sorry, sorry. Yep, we’re approaching your 190th birthday. That’s in a couple weeks. And…
[00:55] Larry: How much longer are you planning to stay? A long time. Get used to me.
[01:02] Andy: Well, now that we know we can’t get rid of you, what are we doing this episode?
[01:07] Larry: Since we don’t have any earth-shattering cases to discuss, we have a special guest. And we plan to do a deep dive into your second favorite subject after the Kabuki machine. Oh, sweet. So that has got to be plea bargains. Yes, it is. We plan to examine the process with a person who has been on both sides of the equation. Our guest is Jerry, who is a former defense attorney and former prosecutor. Jerry has actually tried cases on both sides. In addition, we have a listener question that is actually within Jerry’s expertise since he’s been a high school teacher as well as a college instructor. So he doesn’t have to chime in on that, but he is certainly welcome to. And so that’s what we’re doing. The deep dive should take a considerable amount of time.
[01:58] Andy: All right. Well, then for starters, let’s cover this. This came over my personal chat with a very long-time patron and it says, I am a parent on the PFR registry living in a state in the Northeast and I’m being barred from my child’s entire school campus. My state has no law prohibiting registrants from being present on school property. The only statute that applies to me restricts knowing and intentional contact with minors under the age of 14, and it bumps up to a higher tier if that contact happens on elementary or middle school grounds. Mere presence isn’t covered; it requires knowing and intentional contact. Despite that, the school district has used this statute to ban me from the whole campus, including elementary, middle, and high school buildings, all administrative offices, the athletic fields, everything. My daughter has an IEP. Okay. And there’s a meeting scheduled for Monday, which is literally day after tomorrow, not like some fictitious Monday. I want to attend this meeting. I’m planning to send the school a letter requesting either an accommodation or a renewed formal denial. The original denial is now stale and I want a fresh adverse decision on record so I have something current to challenge. If it comes to that, what I really need is an attorney to review my letter and sanity check my plan before I send it. The ACLU has indicated they generally only get involved where there’s already an active case. So I’m wondering whether a national advocacy organization within house counsel might be a better fit. My question is: When a school district stretches a narrow knowing and intentional contact statute into a blanket campus ban on a registered parent, what are my best options for pushing back? And does anyone know who could review a letter to the school on short notice before Monday’s IEP meeting?
[03:55] Larry: First of all, for our vast audience, we need to explain what IEP means because everyone is not a parent and even if they are a parent, they don’t have any experience with that. So would you like to explain it or should Jerry do it?
[03:55] Larry: First of all, for our vast audience, we need to explain what IEP means because everyone is not a parent and even if they are a parent, they don’t have any experience with that. So would you like to explain it or should Jerry do it?
[04:11] Andy: Want to toss your hat in there?
[04:14] Clip: Sure. Real quick. An IEP is an individual education plan and it is what’s required by federal law for a student who has been described or diagnosed as needing special education.
[04:29] Andy: Oh, your example is way better than mine. Perfect. Okay.
[04:33] Larry: So what he’s packed into this is a lot to unpack. And we don’t know exactly what state he’s talking about, but it’s the Northeast. So we know that there appears to be wind-driven snow and they wouldn’t do anything that’s unconstitutional. So that’s why they don’t have any laws that restricts other than intentional contact with minors. Under 14. But then school districts are independently governed by boards of education as far as the public school system. And then you have the branches of public schools that are charter schools and they have a different governing structure. And I even think our guests might know something about that. But the schools themselves, unless they’re specifically prohibited from having restrictions about campus, they would only be restricted by the law. And. On this short notice, I haven’t had any time to do any research to figure out if he has rights to be participating in his child’s IEP and the discussion of it and the athletics and all the things that kids and their parents would like to do jointly. But I do know this. The conservative side of the aisle is very good about stressing how much they believe in family values and how much they believe that a child needs a daddy and a mommy, not a daddy and a daddy and a mommy. And I’m just I’m just shocked that the conservatives don’t push back more on stuff like this because it goes contrary to what they say they believe in when it comes to having good family support in education. But I don’t know if there’s any federal law that requires a school to involve the parents and guardians at what level. And I don’t know if he could come at it without suit. But if I were trying to dream up a scheme, what I would do is I would research and find out if there’s anything that entitles him to presence in his daughter’s education. And if so, I would threaten to sue under whatever that would be. So, Jerry, do you have any thoughts?
[06:40] Clip: Yeah, I do, actually. So here’s here’s what would have. First of all, look at consider the principal of the school kind of like the captain of a ship to some degree right there. They’re part of their job is to manage the entire campus. There’s an issue that it’s apparently gone up to the school district level. So they’ve gotten involved with it as well. I don’t find it very compelling that they’ve. Excuse me, that they banned. This person from the administrative offices, however. It is a requirement under most states these days. The federal government has been pushing it that anybody who’s going to have unobstructed access to a child needs to have a federal back. Now, an athletic event, they don’t they don’t make everybody have a background check who shows up to that. But if you want to volunteer at the child’s school, you have to have a background check to make sure that you qualify to be there. If they are aware this person is on the registry, I can see where under the theory of protecting children, they have just simply made a blanket decision about him not being present on campus. But. The real concern is whether or not not whether he would have contact with the child. That’s that’s right. That’s that’s a crime that you deal with after the fact or whatnot. But the the real concern is whether he would have unobstructed contact with a child or unsupervised contact with a child while he’s on campus. And and so in in that regard, I think he has a couple of options, but she has three options directly. One. That might just be expedient. The expedient one is for him to be able to zoom in to the IEP. He can do that from off campus. That doesn’t resolve the fact that they’re keeping him out of the room, but it does allow them to participate in what’s going on. The so that that could be an option. A second option is to arrange when he has to go on campus for legitimate business with his daughter and a parent does have legitimate business with the daughter for him to arrange to be escorted while he’s on campus. We’re not talking about a police escort or anything of that nature, but they could have somebody, an administrator, the school narc, somebody like that who would just simply meet him in the parking lot and then go ahead and walk with him to wherever he is going and then walk with him as he returns back to the car. And and that would that would take care of the of the unsupervised access to children if he were to do that. And and that may be something that they would be able to do. That would be something that they would be willing to do if it were suggested, but that’s probably not something that they’d be willing to offer. The third is he could push for the IEP to be held off campus. There’s no requirement to be held on campus is simply convenient for the educators to do it on campus, but they could meet off campus and do the IEP there as well. So those are those are the three options, practical, practical options about what could take place. But ultimately, if. If what he is doing is what the district is doing is arguing for the safety of children. I see I don’t see that as a case that where he’s going to get very far unless they can show that they’re being unreasonable and that’s where he needs to offer some of these practical solutions.
[10:12] Larry: That’s a pretty good answer. I would say that this is also illustrates how sometimes people over read the law. The fact that something is not. Prohibited by law. Doesn’t mean anything. So he’s read the law and he sees what the law does try to protect, which is criminality. But that doesn’t mean that that’s all the school administration can do is protect from criminality. They can be. You remember, we always talk about prevention, how important it is to prevent crime and it’s better to prevent it without an ounce of prevention’s worth a pound of cure. Well, it’s a school administrators have decided that they want. To go beyond the law as long as it’s nothing prohibiting them for doing this. I think it’s going to be a really difficult case now in the state of New Mexico, which we’re both familiar with. I don’t know if schools would be covered, but we’ve got specific language in our sex offender registration act that nothing can be imposed by a state and local authorities. That’s not in the sex offender registration act. I don’t know if the school board governing board would be covered by that, but we’ve tried to stop. The invention and imposition of required. Law. That’s not in the statute.
[11:26] Andy: I want to ask just from experience with the Freedom From Religion Foundation, when schools start overstepping their separation and trying to put up the Ten Commandments, the FFRF will send an attorney-signed letter on letterhead saying they can’t do this because of certain laws. Often, not always, the school backs down because of the legal authority behind the letter. Is something like that helpful here? I don’t think we have time to go into it now, but couldn’t our side send a similar letter?
[11:59] Larry: What you would have to present them with is something they’re not allowed to do for that letter to be effective. If they’re not prohibited from doing this, then I don’t think the letter would be very effective.
[12:15] Jerry: You could make a case in terms of a parent’s inherent ability to be involved in their child’s education. There might be something in the law regarding parents’ rights with regard to schools. But you would first have to attempt to find a middle way forward, such as saying, “Well, how about I have someone escort me? I’m willing to work with you guys on this.” If they deny that and then you ask them again, “I’m willing to work with you guys on this,” and then request that the IEP meeting be held off campus, but they deny that. That’s where you can show they are interfering with your ability to be involved in your child’s education. You would need to demonstrate that you’ve offered practical solutions other than unrestricted access to the campus.
[13:10] Andy: Because I mean, we’re all familiar with using Zoom, a Google Meet, whatever. Especially during COVID, I attended several IEPs for my kid. During that time, I was living in four different states away or something like that. So that’s totally an option of how it could be done. I don’t know if they’re just explicitly not offering it.
[13:29] Larry: Well, they probably wouldn’t offer it because it’s extra work and extra steps for them. Like Jerry’s saying, sure he’s gonna have to make that proposition to them. He’s gotta say, “Look, I’m not willing to stand aside of my child’s education or improvement. Therefore, for me to be a participant, what about this option? Can we do this?” But they’re not gonna bring that up.
[13:50] Andy: I’m with you. Okay, anything else? He is a patron and I’m pretty sure he will listen. I will make sure that he knows that this was covered and that he can listen to it tomorrow after I produce it. So those are fairly tangible things that he could use to approach them with. Cool, I agree, fantastic. So let’s go. As Larry mentioned, we have a special guest today who is going to explain why plea bargains serve the best interest of quote-unquote the prosecution, the defendants, the victims, and the justice system. Now, we have Jerry with us today. Jerry’s been practicing law for approximately 30 years and has been both a prosecutor and a defense attorney. Jerry’s law practice no longer focuses on criminal law, therefore he has nothing to lose by being honest. Welcome, Jerry, and thanks for coming. Since Jerry you no longer practice criminal law, we will not be providing any contact information for you to drum up business on our dime. So I’ll be asking why you believe in plea bargains. But back to welcome and thanks for coming.
[15:14] Clip: Thanks for having me here, yeah.
[15:16] Andy: Appreciate you coming. Tell us about why plea bargains are our way to go.
[15:25] Clip: Oh, look, plea bargains are not perfect, right? But when they’re handled properly, they can produce a timely, proportionate, and informed resolution while preserving judicial resources for the cases that need it. Personally, I like calling them negotiated pleas rather than plea bargains.
[15:43] Andy: Many people hear the term “plea bargain” and think someone’s getting a quote-unquote “deal.”
[15:50] Andy: That’s not always a fair way to term it.
[15:53] Clip: That’s really very misleading in a lot of different ways. Part of it is, it’s a negotiated resolution to a criminal case. I advise my clients that some people might take any chance at being found not guilty and roll the dice no matter what the consequences are. For others, certainty about the outcome is their most important value. Plea bargains provide certainty. It’s a process of negotiation where the defendant gives up certain rights in exchange for knowing the outcome.
[17:02] Andy: Why would a plea bargain be good for the government? Notice the way that I pronounce that.
[17:08] Clip: Certainly, the government gets resource savings. They don’t have the resources to prosecute every single case and take them all to trial. There aren’t enough judges, prosecutors, or public defenders for every case to go to trial. The other thing is protecting victims from trauma through the process of going to trial. The level of trauma a victim might experience can lead to better inducements to avoid that by coming to a plea deal and getting consideration. So everyone gets certainty out of the process.
[18:13] Andy: So the answer then is if all defendants should simply refuse to negotiate, and the system would crash, yes?
[18:22] Clip: That is somewhat true, but it won’t happen because the defense attorney has an ethical obligation to work on behalf of their client. If everyone refuses to go to trial, only about 20 cases might be resolved through the system, and those defendants will likely receive harsher sentences than a negotiated agreement would provide. The state would make better offers if everyone refused plea deals. As an attorney, you advise your client: “If you don’t go to trial, there’s no jail time, but if you do, you might face 12 years.” It’s the defendant who decides whether to accept a plea deal or go to trial.
[20:12] Andy: Do plea bargains help the victims?
[20:15] Clip: Victims, as I was mentioning before, have to go into a room and testify face-to-face with the person who harmed them. While it’s still in trial mode, we call those people alleged victims because we don’t know yet if they’re truly victims until there’s a conviction. This process is very traumatic and delays the case quite a bit. If victims are spared that ordeal through a plea bargain, it provides certainty for them as well. However, many victims get angry when there’s a plea deal because they feel like the person is getting off with a lighter sentence than they might otherwise receive. But for most victims, the worst thing they have to do in their life is testify.
[21:26] Andy: And then of course, why are plea bargains good for defendants?
[21:31] Clip: For the defendant, it provides certainty. They should also be getting an inducement to give up certain rights. So what you’re getting is a better deal than facing sentencing from a judge who might impose a harsher sentence. When I was a prosecutor, I always made sure I was a little more lenient than the judge because as long as I was more lenient, it’s better to make a deal with me than face this particular judge for sentencing. Not every prosecutor does that, but generally speaking, you get certainty in the process.
[22:34] Jerry: Are you a first-time listener of Registry Matters? Well, then make us part of your daily routine and subscribe today. Just search for Registry Matters through your favorite podcast app, hit the subscribe button, and you’re off to the races. You can now enjoy hours of sarcasm and snark from Andy and Larry on a weekly basis. Oh, and there’s some excellent information thrown in there too. Subscribing also encourages others like you to get on the bandwagon and become regular Registry Matters listeners. So what are you waiting for? Subscribe to Registry Matters right now. Help us keep fighting and continue to say f—
[23:26] Andy: Is it fair to say that plea bargains protect innocent defendants?
[23:32] Clip: No, not really, but you know, it’s really a complicated thing here. The thing is, a trial isn’t really about guilt or innocence; we like to think it is—that’s what we’re all taught in school and what the movies show. Trials are really about what can the state prove. What are the elements of the law? And so, innocent people plead guilty all the time because they don’t know what will happen if they go to trial. They might be held in custody while awaiting trial for months or even years, which is a very rational reason to take a plea deal that offers certainty and release from jail.
[25:20] Andy: Interesting. I met many people who claimed innocence while I was in prison. Everyone’s innocent, right?
[25:30] Clip: No, absolutely not. What you find out is that everyone has a solid theory of why they’re innocent. But at the end of the day, when there’s a plea deal, the judge won’t just accept it if it’s offered. The judge is supposed to ensure that the plea is knowingly and voluntarily done, and it must be supported by a factual basis.
[26:11] Andy: But you were just describing something that most people aren’t really familiar with—a factual basis. Larry has used this term over the years. So what is a factual basis, and why is it so important?
[26:25] Clip: Well, it’s important because the defense attorney has a responsibility, an ethical obligation, to look out for the best interests of the client. The prosecutor has a dual responsibility: they must seek justice on behalf of the state and also have an ethical obligation to look out for everyone within the system. However, a judge’s obligation is not to allow a defendant to waive their rights if the judge determines that there’s no real basis behind it or that the person is being forced into this without knowing and voluntarily waiving those rights. The defendant must understand the process and be doing this in a voluntary way, believing that the state has enough evidence to convict them. This happens incredibly rarely, but I have seen one occasion in my 30 years where a judge refused to accept a plea deal because the judge was not convinced there was a proper factual basis behind it.
[27:57] Andy: I ask you to go into any of the details—I’m not trying to get you to out anyone, but that just sounds kind of amazing that the judge says no, I’m not accepting this because this doesn’t seem legit.
[28:08] Clip: It was a really weak case that the state had, but the defendant was very nervous about being in the system and was fixated on getting it over with. The defendant just needed to move on to the next step, whatever that chapter is. The judge picked up on that and also on the fact that the state’s case was weak.
[28:41] Andy: Thought you might say something like he uh, the person wrote some message in the sand with seashells or something. Was getting prosecuted for it, right? I mean, these things happen too, right? Yes, of course. So why not take every case to trial? Wouldn’t that be more just to put the evidence before a jury and let them decide?
[29:06] Clip: Well, again, like you’ve got this ethical obligation though—the rules of professional conduct for lawyers. I mean, a lawyer can be disbarred if they recommend things to the client that are not in their interest. So the thing is, the more jammed the system is, the better the inducement becomes from the state to get someone to plead guilty. And so if everybody stopped accepting plea bargains and took everything to trial, then the state would give even better offers to people. But it would be incredibly unethical for lawyers to say, “Just roll the dice; it could go well for you, but it could also go very badly.” The problem is that ultimately, it’s the defendant who makes that decision.
[30:17] Andy: I did take it, and that’s how it ended up. It could have been a metric shit ton worse.
[30:26] Clip: Exactly, it’s about the level of certainty.
[30:30] Andy: And then any other extra charges just to be safe. I’m sure you’ll agree that prosecutors will offer something like life in prison based on a hint that something might be true. Someone could have done something very benign but because there’s a possibility they could have been assaulting someone while crossing the street, you tack on those extra charges just to overstate what could possibly happen even though it has no chance of being proven.
[31:09] Clip: No, stacking charges is a real problem. When the state starts stacking charges, I find that unethical because they’re putting charges there just for leverage over a defendant. The real issue is with lawmakers who allow laws to be written in ways that permit this kind of behavior. If the laws were written to prevent stacking charges, prosecutors wouldn’t do it.
[31:46] Andy: What does the government get in exchange for a plea?
[31:53] Clip: The government gets to focus on cases that really need attention. When I was a prosecutor, with hundreds of cases on my docket, I didn’t have time for all trials. So, as the government, you want to clear out cases where it’s clear-cut and offer proper bargains to defendants so you can focus on other cases that require more time and attention.
[32:40] Andy: And what does the defendant get in exchange for that?
[32:46] Clip: They usually get reduced risk. They get certainty, they get reduced risk. It might mean a lower charge, dismissal of other charges, it might mean a sentencing cap. Could be probation instead of incarceration. Recommendation for treatment or an agreement that certain penalties are not going to be pursued. Right, and but they get that certainty, they get that predictability. And that’s the biggest thing I think psychologically for a lot of defendants is instead of facing the maximum possible punishment after trial, the defendant knows the likely outcome before giving up that right.
[33:27] Andy: Do you think negotiated pleas mean prosecutors are being soft on crime?
[33:35] Clip: No, it’s not nearly as dramatic to have a negotiated plea. But again, it’s that certainty and you can have a plea that is tough, lenient, fair depending on the facts. Right, the issue is whether or not they did a plea or whether or not they went to trial; the issue is whether or not the result was an appropriate result of what happened. And again, it’s either a negotiated plea for serious crime might still involve prison, probation, restitution, right, registration requirements, no contact orders, firearm restrictions, other kinds of consequences, collateral consequences. So it’s not automatically leniency but it’s a way of resolving cases based on the evidence, the risks, the seriousness of the offense, the defendant’s history and the needs of the victim and the community.
[34:32] Andy: plea bargains mean defendants are being forced to be subjects of the case. This is not the case, or I’m not saying they’re not being pressured to give up their rights.
[34:37] Clip: That can happen; that can absolutely happen. It’s one of the reasons why judges have to carefully question defendants before accepting a plea. A lot of judges don’t do that, though. See, it’s like your personal experience with this right? But you know, the court is supposed to be required to make sure the defendant understands the charges, the penalties, the rights being waived, and the terms of the agreement. But the reality is for a lot of judges they just see this as an expedient way of getting rid of a case on their docket, and they just move forward with it without wanting to disturb things because they don’t know what might happen if they reject a plea. Part of it is that judges don’t know what was behind the negotiations; they don’t know what they’re going to be disturbing if they reject a plea. Pressure and not having a choice are two different things. A lot of times people say, “I didn’t feel like I had a choice,” but at the end of the day, defendants facing criminal charges are under a lot of pressure. The legal question is whether this was a rational decision to accept this versus the greater consequences intrinsic and extrinsic that might have happened by going to trial.
[36:05] Andy: And so then what role does the judge play in all that?
[36:10] Clip: Not the judge is not supposed to be a rubber stamp, right? But the jurisdiction depending on the jurisdiction, the type of plea agreement, the judge might have discretion to reject the plea or may not be bound by the sentencing recommendations. This is the biggest thing, right? Is that in federal court you can come to a sentencing recommendation with the federal prosecutor, but that’s only a recommendation; it’s not a sentencing agreement. In my state, state prosecutors are able to come to a sentencing agreement. There was one time when I was a prosecutor and I was in front of a judge I’d never been in front of before, but she was known for being very hard on people. The defense attorney told me, “Look, this judge knows my client and is going to screw my client over. We need a sentencing agreement that will limit what the judge will do.” What they were willing to do in a sentencing agreement wasn’t unreasonable, so I said, “Let’s do it,” even though I knew this judge doesn’t normally do it. But you’re not asking for anything unreasonable. We got called up before the judge, and she read the plea. I saw the look in her eye as she looked at that defendant; I thought, oh, this judge is truly out to screw this person. This was a low-level charge—normally someone would be facing up to seven days in jail—but the judge had jurisdiction to send them to jail for two years, 52 times the normal sentence you see. The judge said, “Yeah, I’m willing to accept this,” and then she scratched out the sentencing agreement and said, “I just need you to initial right here because I’m not going to take the sentencing agreement.” And at that point, I realized what was at stake and also that it wasn’t a terribly serious case. So I said to the judge, “Your Honor, the sentencing agreement is part of the plea,” and she said, “Fine, there’s no plea today; we’re going to go to trial right now.” Wow, frankly, but yeah, well, the judge pissed me off honestly because I thought the judge was being inappropriate. And I looked at the judge and said, “Your Honor, we’re not going to do a trial in this case today,” and she looked at me and said, “It’s my courtroom, and I’m clearing out the rest of the document, and we are going to do the trial right now.” And finally, as the prosecutor, I said, “Your Honor, you can’t do a trial when there’s no charges pending, so I’m dismissing all the charges.” Wow. Really? Yes, by the time I got back to my office, my supervisor had already received a call from the judge.
[39:11] Andy: I imagine so.
[39:12] Clip: This is not the kind of thing you can do every day; that’s the kind of thing you can only do once in your career and only if it’s a low-level case where it won’t blow up. But yes, I mean, this is the thing—the theory behind the judicial process and plea bargaining is that the judge provides appropriate judicial oversight because the plea has serious constitutional consequences. Unfortunately, a lot of judges just simply do a rubber stamp, but that is not their job. Their job is greater than that.
[39:51] Andy: So from your experience of being both a prosecutor and a defense attorney, did you see plea bargains differently from each side?
[39:59] Clip: I absolutely did. As a prosecutor, if I go to trial on a case, the victims feel good about it even if the trial goes badly as long as I do a good job and explain how I saw the case. Even though I don’t work for the victims, there’s public pressure that comes with it. If I can do my best, even if we lose, I feel bad but there are no tangible consequences in my life other than feeling like I might have let down the victims.
As a defense attorney, however, one of the things I quickly realized was: wow, my client has a lot at stake. Sure, I still get to go home as a defense attorney. As one of my colleagues once said, if the case gets dismissed, I eat steak. If my client ends up being found guilty, I still eat steak. That’s true for the lawyer. But if you care about your client’s well-being, then you realize just how much is at stake and how proper negotiation can create a path for them to make rational decisions to avoid worst-case scenarios. A trial creates a lot of stress because the only thing standing between my client and 50 years in prison is whether I have a good day.
[42:15] Andy: I’m going to channel my inner Larry for a moment. We are having a conversation about putting a human inside a cage for some number of years, which is the consequence on both sides—prosecution and defense—and by judges and juries. That has to be heavily weighed.
[42:38] Clip: And see, from a prosecutor’s perspective, it’s easy to objectify the defendant. The defendant is categorized not by their humanity but by the type of crime they are accused of committing. In many jurisdictions, especially larger ones, you have specialized units—units that only handle sex offenses and others that focus on domestic violence. So which prosecutor this case ends up with isn’t based on the humanity of the defendant; it’s based on the category of the crime. On the other hand, one of the real privileges a good defense attorney has is to work with someone who the entire rest of the world has objectified, looking at them from a 2D perspective, and recognizing who this person truly is as a human being. It’s a very different perspective.
[43:48] Andy: Absolutely. Thank you for your question. I’m going to channel another question that was thrown out there: the DA’s have the full weight of a bottomless pit of resources to try and charge someone without concern for the cost, whereas the general public often has extremely limited funding. And to extend that, DAs have an incentive structure where having a high percentage of wins ties directly into their re-election campaign. If the measurement were about justice being served rather than actual convictions, it could perhaps change the mindset of a prosecutor.
[44:36] Clip: Yeah, but I think you’ve nailed it, Andy. The incentive structure is all about statistics, which isn’t about the humanity of the person being charged. It’s about numbers. So when we’re talking about taking a human being and depriving them of their liberty by putting them behind bars—warehousing that person—institutional time out—that’s what we’re discussing. But from a prosecutor’s perspective, those are just statistics, while for defense attorneys, they are people.
[45:20] Andy: So then, what makes a plea bargain even fair after all of that?
[45:28] Clip: Well, what makes the plea bargain fair is several features. First, the defendant must understand the rights being waived. Second, the defendant must have competent legal advice. Third, the government must have credible evidence supporting the charge. At the end of the day, when you do a plea bargain, the outcome should be proportionate to the conduct and the defendant’s history. And then victims are considered in all of this because people felt like victims weren’t being considered. But really, a victim is just another witness in the case or a special witness. Those agreements are placed on the record in public court so everyone understands the terms. If you’re just looking for efficiency, that’s not fairness. Fairness has to be the driving force.
[46:42] Andy: Let’s move past all that process and now, after a person has entered into a plea agreement, can the person change it if they feel they were pressured into taking it?
[46:54] Clip: Not in most cases, and this goes to whether or not you can show that the judge did their job. If the judge did their job, then there’s a presumption of a voluntary, knowing plea with a factual basis behind it. It’s a contract that the person entered into, right? And there has to be legal certainty. At the same time, when pleas get set aside, it all revolves around whether or not the judge did their due diligence in ensuring that the plea was voluntary and had a factual basis.
[48:00] Andy: See, alright then, how about this one: When a defense attorney tells their client to take a plea agreement because if they go to trial, the results will be worse, does that show no faith in the client’s innocence? For a truly innocent client, would that be grounds for requesting a new attorney and starting over?
[48:24] Clip: I don’t see it that way. The attorney needs to have examined the strength of the government’s case and concluded whether or not the state has an overwhelming likelihood of securing a conviction. Like I said at the beginning of this podcast, a trial is not actually about guilt and innocence; a trial is about what are the elements in the law and can the state prove those elements. So, I could have a client who I believe is factually innocent, but part of my job is also to evaluate what does the case have? What is the state’s case, and can they get that conviction regardless of my client’s innocence. That’s a really tough conversation to have with a client.
[49:22] Andy: Sure, well, I’ve run out of questions, but I do reserve the right because there are people posting a handful of questions here and there. So, Larry, do you have any questions to tack on mine?
[49:32] Larry: Yeah, I want to get back to not negotiating because I think there’s an ethical breach, but I want to make sure I’m not imagining something. With an attorney who just flat out refused to negotiate with the prosecution and permitted the client to go to trial and receive a severe sentence when a far more favorable option was on the table because the prosecutor said, “Hey, I’ll do this.” And the lawyer says, “I’m not going to mess with that. Your case sucks.” Would that be a violation of the rules of professional conduct not to relay that offer and take it seriously on behalf of your client? Because I think it would be totally unethical.
[50:10] Clip: So let’s unpack that a little bit, Larry. First of all, yes, by definition, a lawyer is required to communicate any offer that comes in to the client. Now, a lawyer who tells the prosecution, “Don’t even bother offering me anything,” raises questions. Is that being driven by the lawyer’s ego or was the lawyer given that instruction by the client? There are times when clients will say no offer is good enough and instruct their lawyers to go to trial. For example, James Comey might have told his attorneys, “No offer is good enough. We’re going to trial on this case.” In those cases, the lawyers representing Mr. Comey would be completely justified in saying to the government, “We’re not engaging in plea bargaining discussions.” Having said that, if the government were to make an offer, that lawyer is still obligated to communicate it to Mr. Comey, right?
[51:32] Larry: I understand. I would, yep. Well, I need to say this—I didn’t just make this disclosure, but I’ve worked with Jerry on cases over the years, which allowed me to have extensive insight into his legal skills. I don’t want to embarrass Jerry, but when he was a prosecutor, he invented his own repeat offender, special prosecution unit while working for the district attorney’s office and focused on people who would be repeat customers. He figured out a way to monitor their cases decades ago. How the hell did you do that with the technology we had back then? Yeah.
[52:06] Clip: It took a lot of work, but there were some people and it was just dumb luck, you know. Some of it was just dumb luck. Right, you just have to be walking through the courthouse and see somebody you recognize and think, wait, why is that person back here? Didn’t we already have a trial on them? But other people, yeah, I was able to put together a rudimentary database and input their social security numbers monthly. I had a list of people I would keep track of, even if I wasn’t assigned to the case. I would start showing up at those hearings.
[52:36] Larry: He would show up in court, tell the assigned prosecutor, “I’ve got this; I have information you don’t know about this case,” and they would say, “Oh, enlighten me.” But back to the subject: When a judge rejects a plea agreement, I want to know—is the government still in control of the case or is it the court’s control? Does it vary who controls the case?
[53:03] Clip: So the government controls the case; the judge controls the process. Right? If the government were to reject a plea agreement, most often the parties would go back and negotiate further to address the court’s concern. But ultimately, the power rests with the prosecution, as I said earlier. I could only do one thing without losing my job: when I thought a judge was unreasonable, I just dismissed the charges. That shows how much authority prosecutors can have. Most prosecutors never think to use that level of authority.
[53:52] Larry: Just to clarify for the audience, what term covers it when the state is unwilling to proceed? What document do you file?
[54:04] Clip: Sure. The Latin term we use is “nolle prosequi.” We call it a noli for short. Nolle prosequi means “I will not prosecute” or “I will not pursue.” In legal terms, it’s a formal declaration by the prosecutor that they are voluntarily ending a criminal case before it reaches a verdict.
[54:29] Larry: And how frequently does that occur? I know what you did was unusual, but people think this is an extremely rare thing. How often does this occur?
[54:39] Clip: No, nolli prosisci happens fairly routinely, right? Sometimes it’s filed for strategic reasons, such as to collect more evidence. Sometimes the government’s case has collapsed due to newly revealed evidence, or maybe a victim decides not to proceed with the case, right? Now, when you’re watching movies and seeing victims decide not to proceed, what actually happens is that the prosecutor files a nolli prosisci to dismiss the case. You just don’t see that in the movies.
[55:16] Larry: So we’ve gotten pretty well into that. So I’d like to dig into the section about the selection of judges and skip over the rest about the prosecutor’s power, because they have enormous power. When you vote for these people, they tell you how short staffed they are. They also tell you they need more resources. But when they hold all the cards, it seems they’re full of crap and lying. They decide what to charge, who to charge, and what charges to file. They’re the only branch with complete control over their caseload. The judges have control over theirs, and the defense has no control other than to plead people guilty.
[56:01] Clip: That is true. And the state decides which cases they really want to pursue. And I actually, on this issue, I really agree with what Larry was saying, which is that it is dangerous to give a prosecutor an unlimited budget.
[56:27] Larry: We harp about that every episode, practically, when people say that the AG’s office appealed. Yes, the AG’s office is fighting that. And I said, well, wait, wait, wait, wait, wait. You voted when they told you how short staffed they were. You voted over and over again to give them a larger budget. You pressured, you insisted, and now you’re moaning and groaning and whining about all the fighting that they’re putting against you after you voted to give them the resources to fight you. And they look at me like I beamed in from outer space.
[57:21] Clip: You know, a lot of places, right, you’ll hear them tout that they have direct election of judges. And this is a great thing, because it means the judge represents the people of the community. Now, actually, what it means is that the judge spends more time being concerned about their personal well-being when a difficult case comes up than whether or not justice is being done. You know, there’s no perfect system for picking judges. When they wrote the U.S. Constitution, they made a decision that Article III judges, the full district judges, U.S. district judges, would get a lifetime appointment. And the idea behind that was that they wanted people to be focused on the law, not focused on whether or not they would lose their job based on how they ruled on the law. And I think that’s good philosophy. The problem is, you get a bad judge, then you can never get rid of them, right? And that’s where there is no perfect system.
[58:30] Larry: Well, when I became a resident of New Mexico, decades ago, we elected the judges directly here. I think that was a little bit before your arrival. And now we have this hybrid system that we’ve alluded to, where they are nominated and appointed, and then they have to run for one partisan election. I feel the hybrid system we have now is preferable. But you pointed out that once the judge is appointed, he or she will undergo an election cycle. You’re familiar with elections. You’ve got some experience in elections. Is that dangerous to an accused if he or she has to face a judge shortly before an election?
[59:09] Clip: Yeah. I mean, let me tell this story. Several years ago, I had a colleague ask me to cover a case in another county. It was a rural county of the state. The client was under a certain level of jeopardy depending on how the case went. So I go up there, and the case is set for jury trial. When I walk in, the venire, which means all the people who have been called in because they might serve on the jury, were sitting around in this small courthouse in this rural area. A guy was getting coffee and donuts for everyone. I later found out that was the judge who had just been appointed and would soon be up for election. While we’re waiting, the door opens, and about half the people say, “Hey, Greg.” That’s the police officer who will testify against the client. A few minutes later, another door opens, and the other half of the people say, “Marge, how’s it going?” That’s the prosecutor. I sized up the situation—we were prepared to go to trial—but I pulled my colleague’s client into a room and said, we need to find a way to negotiate our way out. If you go to trial, like half these people are friends with the cop, the other half are friends with the prosecutor. You’re not from this community, and neither am I. The judge is getting everyone donuts and coffee. If you get found guilty, he can nail you to the wall in sentencing, be a hero in the community, and he didn’t upset anyone influential there. But sometimes a judge doesn’t want to sentence someone because they have kin around who are influential. In this case, we weren’t from there. That’s part of what happens when you have elected judges.
[1:01:39] Larry: So, well, you’ve practiced practically in every jurisdiction in the state, as far as I know. And people continuously complain about the outcome. Same charge, same state law, similar backgrounds, and they say they got a different outcome. Is there a difference in sentencing outcomes for those defendants with similar charges throughout our state? For example, if you get a fourth degree felony in Bernalillo County for failure to register, you’re going to get probation. But if you get a fourth degree felony, failure to register in Colfax County, are you going to get a similar outcome? Or are you going to get a different outcome?
[1:02:24] Clip: You’re going to get a different outcome, right? Particularly if you’re in the part of this state that’s called Little Texas, right? So the more conservative the area, especially when it comes to registration issues, the stronger the sentence is going to be for the most part. Now there’s a caveat to that: a lot of ultra-liberal judges, depending on what the underlying charges were that got somebody on the registry, might be just as harsh as an ultra-conservative judge. But for the most part, when you’re in more conservative communities or rural areas, you’re going to get a harsher sentence for a registration violation than if you’re in a more liberal, densely populated city.
[1:03:25] Larry: Well, that’s what I was trying to convey to the audience. The place you live is not a guarantee, but it can have a direct impact, particularly where judges are elected because they’re closer to the people. When you live in an urban area, the judges don’t hobnob as much. In Raton, for example, when the judge is in town, everyone knows the judge. The judge feels connected to the community and has an obligation to it. But in a place like Philadelphia, not a soul knows who the judge is. It’s a whole different makeup. So if you have an option, don’t be shocked when they impose tough sentences in the most conservative places because that’s what largely happens there. However, as he pointed out, there’s an exception: ultra-liberal judges can be just as harsh, if not worse, particularly for certain types of offenses. You see this in the legislative process too. I’ve gotten so frustrated here because we’ve become so ultra-liberal that you can’t even work with legislators anymore; the ultra-liberals want to do the same thing but for different reasons.
[1:04:43] Clip: That’s accurate, yeah.
[1:04:45] Larry: Yeah, well, we’re out of time and I know that there are a lot of people who may have questions, so you’re welcome to stay if you want to field some of the questions, but I think we ought to wrap up the broadcast portion.
[1:04:56] Andy: What I think I was going to do is split it. I was going to shorten it down for the general population, but I do have two questions, and either of you can answer them. I would prefer Jerry, since he’s the guest. Do you have time, Jerry, to answer a couple of questions?
[1:05:12] Clip: I can hang on for a few minutes.
[1:05:14] Andy: Awesome. All right. So from one of the listeners, it says, because I was so fed up with waiting that basically I interrupted the court proceedings to say, y’all know I’m guilty. I know I’m guilty. What’s the holdup? And was promptly sentenced at the initial charge without a bargain that I can recall. Would my situation be considered a plea bargain?
[1:05:36] Clip: That’s why it’s within the judicial system is known as a change of plea as opposed to a plea bargain, because you don’t always get a bargain out of it. However, this particular person who walked in at the very beginning and said, look. Let’s just call it what it is, that person probably did get a bargain out of it. All right? High level of acceptance or high level of acceptance responsibility. Right. High level of we’re not going to waste resources. I could also see a fair number of judges trying to talk someone out of pleading guilty at the very first setting, and a lot of judges will go back to why don’t you get a lawyer and make sure that they evaluate the case first?
[1:06:32] Andy: And then the second question is, how is a registration violation considered traumatic or even onerous for the victim who usually controls the capacity of the registrant to comply with that unique set of laws?
[1:06:49] Larry: Wait a minute. Did you mean to say what you said? The capacity of the registrant? How does the victim control the capacity? How does the victim control the capacity of the registrant to comply?
[1:06:56] Andy: Look, man, I’m reading what was given. Don’t shoot the messenger.
[1:07:03] Clip: Well, let me look, I’ll actually, here’s the thing. We have professionalized victimization in this country.
[1:07:15] Andy: We have, I agree.
[1:07:16] Clip: All the stuff that we’ve done in terms of making sure that victims have their rights preserved. And also the. What we’ve done is we’ve really created a system where someone doesn’t move on in their life and that they define themselves by their victimhood because they get a lot of attention. There’s a lot of, again, what’s the incentive that people have, right? As long as you are within that category of being a victim with a capital V, you get attention, you get sympathy, right? And you get revenge. And so this is one of the concerns I have about most parole hearings. Most parole hearings make sure that the victim knows that the person is up for parole. So the victim can come testify at that parole hearing. And most state laws say that the parole board has to consider the nature of the crime before they grant parole. Well, let’s think about that for a moment because the issue with the victim and the nature of the crime is why the person got sent to prison in the first place. The issue with parole is supposed to be what did you do once you got sent to prison? How have you reacted in prison? Were you a model prisoner? Did you get into a bunch of disciplinary situations? That’s the issue that they really are supposed to be looking at in theory for a parole hearing. But unfortunately, because we’re so professionalized victimization, what we’ve actually done is we have many parole hearings where we rehash the one thing that a defendant has no control over when they go to prison.
[1:09:32] Andy: It’s true. Well, very good. Does anybody have anything else they want to cover before we shut it all down?
[1:09:41] Larry: PFR soldiers said, I agree, but here’s the problem with the criminal system. It’s used to drive fear for voting for a candidate who’s tough on crime and for private prisons to be incentivized to keep someone incarcerated rather than releasing them. There’s no value in having someone heal. Now, before Jerry speaks, let me say this: it goes back to us, the people. That only works if you fall for it. You don’t vote for this nonsense about privatizing prisons. You can have them or not have them in your state. The conservative side of the aisle says privatization is better because everything the government does is flawed and everything private sector does is efficient without any flaws. So that’s a policy choice for you to take to voters. You’ve got to convince your fellow citizens that private prisons are not good, and that they’re being driven by fear rather than facts.
[1:10:56] Jerry: Well, we’re on the topic of private prisons, I guess. Again, we’re talking about warehousing human beings. Should we be warehousing human beings out of obligation because society demands it, or should we be warehousing them for profit? My personal perspective is that something should not be done for a profit.
[1:11:25] Andy: Not in this regard. I completely agree that for this kind of scenario where individuals are taken over and can’t fend for themselves—they can’t feed themselves, they can’t do anything; everything is controlled by the state—obviously, it should not be a for-profit thing. Because they’re going to optimize for profit, which means less food, fewer programs, and all that. Private prisons are terrible.
[1:11:58] Clip: And again, it goes back to what are the incentives, right? Just like you said, Andy, the incentives are we make more money if we have lower quality food. We make more money if we don’t provide these services. Well, what’s human nature? They want to make more money. That’s why they’re in this business to begin with, if it’s a private prison.
[1:12:21] Andy: Fantastic. To respect your time as well, Jerry, thank you so much. It was very insightful. I super appreciate you coming on. And you are welcome back anytime you want a soapbox to stand on and tell us about all sides of the equation. It was really fantastic. You did awesome.
[1:12:38] Clip: Thank you so much for having me on. It was a pleasure.
[1:12:41] Andy: Yep, thank you. So without anything else, Larry, we got two patrons. One of them did actually do a stimulus-level type of Patreon. And then that is CC. And then somebody, he’s not really new, but he had payment problems and was living out of his car and all this stuff. So, Joey, welcome back. He was fussing at us for picking on him earlier, even though we weren’t directly, because he lives in one of those conservative places and wonders why he gets treated like crap.
[1:13:12] Larry: Well, he’s going to cancel again after tonight’s episode.
[1:13:15] Andy: That’s quite possibly true. And then, hey, everyone, head over to registrymatters.co for show notes and links everywhere. You can email at registrymatterscast at gmail.com. Leave old-fashioned voicemail messages at 747-227-4477. And, of course, you should become a patron and those that are listening tonight will get the full interview we covered with Jerry. That’s for Patreon supporters, patreon.com. Last thing is fypeducation.org slash shop where you can find some fabulous Registry Matters merchandise, including my favorite, the Kabuki machine. Anything else, Larry, before we head out? I’ll see you in about a month. In a month? Come on, man. You’re not going to be like that, are you?
[1:14:08] Larry: You’ve got a conference you’ve got to prepare for.
[1:14:11] Andy: Yeah, I’ll be here between now and then too. So all right. Well, again, thank you. Thank you everyone for coming. And I will talk to you soon. Have a good night Larry, and have a good weekend. Take care. Good night.
[1:14:25] Jerry: You’ve been listening to FYP. Peace.