In the following article, Cuyahoga County Common Pleas Judge Michael P. Donnelly argues that Ohio should join states like New Jersey and Connecticut in banning factually baseless plea bargains. A ‘factually baseless plea bargain’ is one in which the prosecution provides the accused with the option to plead to an offense other than the one charged in exchange for resolution of the case. Problematically, in order to obtain the benefit of such a deal, the accused must admit guilt for a crime they didn’t actually commit. In Hon. Donnelly’s opinion, these pleas, or “legal fictions” as they are referred to in the legal profession, amount to nothing more than lies corrupting the adversarial process.
END FACTUALLY BASELESS PLEA BARGAINS
HON. MICHAEL P. DONNELLY
ABA Litigation Journal 42 (Spring 2016)
Think about your favorite Hollywood film that focuses on the U.S. legal system. Now, think about that film’s climactic scene. The common thread running through nearly every great movie about our ad versarial system is our core belief that it centers on finding the truth behind disput ed facts so that justice may prevail. That is what makes the surgical precision of Tom Cruise’s cross-examination of Jack Nicholson-which at its crescendo reveals who ordered the Code Red-so powerful in my favorite film, A Few Good Men.
In reality, the hard-working attorneys who practice in our country’s criminal justice system understand that most criminal cases aren’t resolved in dramat ic courtroom confrontations but rather through negotiated plea agreements. These contracts are supposed to be forged after the prosecutor and defense counsel have zealously represented their clients’ interests and assessed the evidence form ing the basis of the allegations.
While not exactly fodder for riveting screenplays, the requirement that such negotiated agreements reflect some lev el of truth about what actually occurred is vital to the public’s confidence in our criminal justice system. And public con fidence is the lifeblood of that system-a belief that any dispute will be resolved in a fair, transparent, and efficient man ner consistent with the principles of truth and justice.
After 12 years on the bench, I remain in awe of the design of our adversarial process. I firmly believe that when all parties are doing their jobs correctly and a de tailed and accurate record is maintained, the law’s inherent procedural checks and balances and substantive protections will produce a just result. Justice comes in many forms: the guilty being held ac countable and punished accordingly, consistent with the goal of public safety; de fendants acquitted if the evidence fails to meet the high standard of proof beyond a one kind of plea represents a corruption of the adversarial process. In this type of plea agreement, all parties-prosecutors, defense counsel, and the court-exchange truth and justice for little more than a rapid disposition of the case. I am referring to the practice of resolving criminal disputes through factually baseless plea agreements. This occurs when the accused is given the opportunity to resolve the case by pleading to an offense other than the offense charged and which they didn’t actually commit. Some in our profession euphemistically think of these as “legal fictions”; in my opinion, they’re more accurately described as lies.
Sometimes parties enter into factually baseless plea agreements with the best intentions-a belief that they’re craft ing a form of rough justice that wouldn’t be available if they simply went forward with trial. But in reality such agreements leave a trail of false information in the justice system that can only weaken the public’s confidence and pose a serious threat to public safety.
Over the last few years, I have chaired a subcommittee within the Ohio Judicial Conference that has studied this practice in our state’s felony court. Factually base less pleas occur most often in cases alleg ing rape and other forms of sexual assault. As all prosecutors know, these cases pose daunting obstacles. Many boil down to the victim’s sworn testimony against the ac cused. Prosecutors must also consider the trauma that victims will endure from be ing forced to rehash the events on the stand and the discomfort of a cross-examination intended to paint them as liars, or worse.
In Ohio, criminal charges like rape are associated with so-called “lesser included offenses” designed to account for similar fac tual scenarios covered by the most serious for in of the offense minus one or more ele ments of the most serious offense. Naturally, lesser included offenses are punished less severely. For example, rape in Ohio is associated with a lesser form of sexual assault known as “gross sexual imposition,” a mid level felony. There is also a misdemeanor of fense known as “sexual imposition.”
When a prosecutor offers the accused an opportunity to resolve the case by pleading to a lesser included offense, the factual basis is self-evident. If the defen dant committed the most serious offense, the defendant necessarily committed the lesser crime too. And prosecutors have many good reasons to consider offering a plea to a lesser included offense in a rape case. Grave concern for a victim or a lack of corroborative evidence can understand ably lead a prosecutor to reduce a rape charge to a lesser included offense.
But the same isn’t true of a factually baseless plea. A study I conducted of my court’s records going back five years re vealed hundreds of rape cases that were resolved by offering the accused the op portunity to plead to the crime of aggra vated assault, which isn’t a lesser included offense. This practice never garnered any type of scrutiny because the public is bliss fully unaware that aggravated assault in Ohio is a low-level felony intended to apply when the accused was seriously provoked by the person assaulted. It’s most common ly used to resolve felonious assault cases where it is difficult to determine who actu ally started the fight. Another fact buried by such resolutions is that the defendant circumvents sex-offender registration re quirements because the crime bears no relation to sexual assault.
These and other factually baseless plea agreements are an affront to the very prin ciple our justice system was designed to promote: the pursuit of truth and justice. To the victim, they convey the message that no one will ever believe you. To the falsely accused, they constitute a coercive offer to admit to an offense that bears no resemblance to the original accusations. Ultimately, baseless pleas contaminate the system with false information, while all end users of our justice system (future courts called to sentence the same defen dant for a new crime, employers, victims’ advocates, and law enforcement) should be able to rely on the information in the system as being truthful.
States Banning These Pleas
In light of the defects inherent in factu ally baseless pleas, Ohio is currently con sidering joining the federal courts and states like New Jersey and Connecticut in banning them. The proposal is modest and would require only that courts, when confronted with a plea agreement unre lated to the original charges, conduct an “on the record” inquiry with the parties re garding the facts that supposedly support the new charges. If the court determines that the allegations, if true, would support the charges, it will accept the plea. But, if the facts described would not support the proposed charge, the court would reject it. The greater transparency of this process would increase the public’s confidence that all actors in the system are remaining true to their ethical responsibilities.
The Ohio proposal has gained the support of two major editorial boards, nation ally recognized experts in the field of legal ethics, and victims’ advocacy groups such as the Cleveland Rape Crisis Center and the Ohio Alliance to End Sexual Violence. Many state judges agree that this rule should apply to felony cases but remain reluctant to extend it to municipal courts, which have jurisdiction over misdemean ors and traffic violations. They fear this would clog municipal court dockets by eliminating practices like allowing people to avoid speeding tickets by “admitting” to a loud muffler charge or a similar non moving violation.
I believe this fear is unfounded. In Franklin County Municipal Court, the busiest municipal court in Ohio, the prosecutor’s office has rejected factually baseless pleas on its own for a number of years, persuaded by the reasoning in Iowa Supreme Court Attorney Disciplinary Board v. Howe, 706 N.W.2d 360 (Iowa 2005). Instead, they use a number of innovative driver safety programs to allow normally careful driv ers to resolve their cases without expensive penalties, while still meeting their ethical duty to protect the public. .
Eliminating factually baseless pleas is an idea whose time has come in Ohio and perhaps elsewhere. I don’t suggest this will be a panacea for all that ails the plea negotiation process, including mandatory prison sentences, over-indicted cases, an underpaid defense bar lacking necessary investigative resources, draconian registration requirements, and sometimes less than fair minded judges. All of these have been cited by practitioners as reasons for legal fictions to continue. While issues like these must be addressed in any effort to improve- the criminal justice system, the truth should never become a sacrificial lamb in the process of reform. Any assertion that we, the guardians of our justice system, can’t handle the truth should be met with the resounding response: “Yes, we can!”