CLARION CO., Pa. (EYT) — Plea bargains account for a large percentage of convictions in our criminal case system; but, has justice been served?

(PHOTO: Drew Welsh. Captured by Dave Cyphert of ProPoint Media Photography.)

A plea bargain — which is an agreement between the defendant and the prosecution to resolve a criminal case without going to trial — is a guaranteed conviction.

As plea bargains continue to be a common occurrence in our criminal justice system, it is the district attorneys who have the task of weighing everything involved to offer deals that suit the crimes.

ExploreClarion.com spoke to Assistant District Attorney and District Attorney candidate Drew Welsh about the process to help bring light to what goes into plea agreements in our local court system.

Drew Welsh. Photo by Dave Cyphert of ProPoint Media Photography.[/caption]

The Investigation

According to Welsh, depending on the crimes involved, the District Attorney’s office may be involved from the very beginning stages of an investigation.

“For more major cases or more serious crimes, we actually have a local rule that the local law enforcement gets approval from the DA before filing charges in cases like that,” Welsh explained.

“Murders, obviously — but also rape, sexual assault, thefts of a certain level — things like that all require the DA’s office to sign off on the criminal complaint before it is actually filed.”

Welsh emphasized that in the case of major crimes, the District Attorney’s office may be called in immediately, even directly to the scene as the investigation begins.

“Then, we kind of put our heads together with law enforcement to say ‘We need to be sure to do this and get this information.'”

In other cases, the police take on the investigation but turn over a full report to the DA’s office for approval, where the case is screened and reviewed.

Welsh noted that sometimes additional interviews or evidence are then collected before the charges are filed — if they are filed at all.

“There are cases that we just don’t have enough evidence for,” he noted.

Once the DA’s office signs off on the charges, the complaint can be filed, and the case moves into the court system, first through one of the local Magisterial District Courts.

Heading to Court

The preliminary hearing offers the first chance for the defense to offer challenges to the evidence of the case. However, in most cases, the hearings are waived.

“There could be multiple reasons for that, but generally, waiving a hearing says ‘We’re admitting there’s enough evidence to say there’s probable cause that a crime happened and this could be the person who committed it,'” Welsh explained.

Once the hearing is waived, it moves on to the Common Pleas Court, which starts a whole new process, beginning with criminal conferences, which is when the discussions of plea bargaining most often begin.

According to Welsh, the two main things focused on in criminal conferences are 1) whether or not the defense intends to file any pre-trial motions, such as to suppress evidence due to questions of procedure or legality, and 2) whether or not the person may be willing to enter a guilty plea on any of the charges.

“There are some cases you know right from the onset, this is going to be a trial,” Welsh noted.

“Either this person is just not going to plead guilty or the crime is so heinous that even if they did plead guilty, the sentence would be so high that they’re going to take their chance going to trial and hope that something goes their way at trial.”

However, in the vast majority of cases where a plea agreement might be possible, the District Attorney’s Office has many factors to consider in making an offer.

Evidence

“One factor is what evidence we have, and that’s probably one of the first things we look at,” Welsh said.

“Especially when we talk about sex offenders, you always have to consider the evidence involved whenever it involves a child who is going to have to testify. Yes, if the child testifies the same as when they interviewed, you’re going to likely get a conviction.

“However, I have had cases where I’ve had children that have gone up to testify, and when they got there to testify and you ask them a question, and all of a sudden they get a ‘deer in the headlights’ look and say ‘I don’t remember’ or I even had one that just stayed silent, and wouldn’t say anything. And you’re always considering that.”

Nevertheless, even in cases where the evidence seems particularly solid, there are still other factors to consider.

Likelihood of Conviction

“You have to look at what is the actual likelihood of getting a conviction at trial, because there are lots of cases that get filed where, as a prosecutor, you’ve looked at the evidence and you believe this person has committed that crime, you believe there’s the evidence that a jury could convict this person of this crime. However, you still have to consider how likely is the jury to convict this person. That’s always an open question,” Welsh explained.

“There have been cases I’ve gone to a jury trial on, and I’ve felt we had very, very strong evidence. You think this is a great case, and you present the case to the jury, you think you’ve done everything, dotted all your i’s, crossed all your t’s, presented a great case, but the jury comes back and finds someone not guilty. That can happen.

“There’s no such thing as a slam-dunk case or a sure thing. I think that that’s a myth that people perceive that if someone is charged with a crime, well, of course, they’ll get convicted, but there’s a lot more that goes into it.”

Consideration of the likelihood of conviction is one of the top concerns, but the factors still don’t end there, according to Welsh.

Sentencing Issues

“We also have to look at the sentencing guidelines,” Welsh said.

“When you look at people who are plea bargaining, that doesn’t always mean they just get off easy. What it does mean is that there has to be some incentive for someone to enter a guilty plea, because people who are involved in the criminal justice system, people who have committed horrible crimes, aren’t necessarily suddenly going to decide, ‘Hey, I’m going to be a good person, I’m going to admit exactly what I did wrong, and I’m going to take my punishment.'”

In the Commonwealth of Pennsylvania, there are a set of standard guidelines that include offense gravity scores for every crime that a person can be charged with saying how serious it is considered.

The guidelines start with minor crimes, such as theft of less than $50.00 value, and go up to murder, attempted murder, and rape of a child considered the most serious offenses. The guidelines also include a prior record score for any previous offenses the person was convicted of, which also affect the sentencing range.

Welsh gave an example of a person accused of bribery, who also has a prior record score of two. The range for the minimum sentence for that individual on the bribery charge would be three to fourteen months, meaning the judge could sentence them to something like three to six months in county jail, or as much as 14 to 24 months in state prison.

“So part of the negotiation could be us saying ‘Okay, if you plead guilty to bribery, we’ll guarantee that you get a county sentence.’ Then they’re pleading guilty to the crime as charged, but they’re getting the consideration of ‘Because you plead guilty, and accepted the responsibility, we’ll agree to this.'”

“If they went to trial and were convicted, that could have been their sentence anyway, they could have still gotten county jail, or they could have gotten state prison time.”

Welsh noted that the sentencing is also a factor in another way, as well.

“We look at what sort of sentences Judge Arner has given people in the past who have committed the same kind of offense.”

One of the reasons the prosecution has to take the judge’s sentences into consideration is because the defense will certainly already be doing so.

“For example, let’s look at that same bribery offense: if you had two people last year who were convicted of bribery, and in each of those cases, the judge gave them six months in jail, then you come out and say: ‘My plea offer is if you plea guilty to bribery, we’ll make it contingent on 12 months in jail.” If I’m that defendant, why would I plead guilty? I know if I go to trial and get convicted, I’m only going to get six months in jail.”

Different Judge, Different Sentences

When it comes to looking at the sentencing possibilities, there is one thing that can certainly throw things off a bit, and Clarion County is due for some shaking up in this manner with Judge Arner retiring and a new judge preparing to take the bench.

“There’s going to be an adjustment period,” Welsh said.

“I think there’s very little question that the plea agreement framework that’s in place — not necessarily the principles behind it — but what the actual pleas that you’re seeing come through, are going to be affected by a new judge. There’s no question about it.”

According to Welsh, every judge tends to have their own set of preferences when it comes to how they sentence particular crimes.

“I know Judge Alexander, when he was alive, hated anything to do with abusing animals. If there was a dog that was injured or you did something to a dog, Judge Alexander would really throw the book at you.”

However, in the case of Clarion County’s next Judge of Common Pleas, those preferences have yet to be established.

“We’re just going to have to get used to each other and go from there,” Welsh noted.

The Charges

Another issue for consideration is the charges and how they relate to exactly what crime was committed.

“One of the places it gets tricky is where you have multiple offenses that are charged, but those are multiple offenses that come out of one single action,” Welsh said.

According to Welsh, in a recent case involving an allegation of forcible sexual intercourse on one occasion, the charges filed included rape, sexual assault, statutory sexual assault, aggravated indecent assault, and indecent assault.

“So, there are five charges right there that are all for one single occurrence, and if that person goes to trial and is convicted on all of those, it’s likely that the judge would run those sentences concurrently rather than consecutively because they were all one single incident.”

“On the other hand, you could have an offense where there was an ongoing course of conduct, with separate offenses where you could have both felony and misdemeanor offenses, and sometimes, if you add up the misdemeanors, they could be a longer sentence than the felony. It can happen, though we don’t see that too often.”

There are also instances where the standard guideline sentencing range can be higher for some misdemeanor offenses than other felony offenses.

“It just doesn’t always add up the way you think it would,” Welsh noted.

The Victim

Another factor in the consideration of a plea agreement is the victim of a crime.

Welsh noted that while the DA’s office represents the Commonwealth, and not the victim, getting the victim’s perspective is still very important.

“When you’re looking at going to trial, sometimes you bring a victim in and they say ‘I just can’t testify,’ or maybe the person is a family member they’ve known their whole life, and they think the person just needs treatment.

“We’re going to take what that victim says into account.”

Welsh noted that the victim’s concerns can also take things in another direction. For example, even if the District Attorney’s office is uncertain about whether or not the evidence will be enough to convince a jury, if the victim is adamant that they do not want the defendant to be offered a lesser plea, the case will often proceed to a trial.

“Sometimes that’s come back as an acquittal, and sometimes that’s come back as a conviction. But, I think we always want to make sure we keep what the person who’s been the victim of a crime wants to see in mind.

“However, the Commonwealth doesn’t represent the victim, and there are times, especially in domestic violence cases, for example, where the victim wants everything dropped, but maybe this is someone we know has had multiple previous arrests or convictions, and we can move forward, if we have that evidence, without the victim.”

A Necessity

While many factors are considered when it comes to plea agreements, according to Welsh, the bottom line is they are absolutely necessary.

“We have about 600 or so cases that come across every year, and if we didn’t offer any plea bargains whatsoever, the vast majority of those cases would say go to trial, because there is no real downside for someone going to trial in that situation.

“There’s only really an upside because what happens is maybe they have a witness who doesn’t show up or doesn’t want to cooperate, or maybe there’s a police officer who has transferred to another jurisdiction who you have a difficult time getting back.

“If every one of those cases went to trial, you’d have 500 to 600 jury trials every year. That’s more than one a day, and we have one judge and two prosecutors. The system wouldn’t be able to handle that. Plus, you look at the economics of that, obviously, with how much it costs to put on a jury trial, you’d be talking about massive tax increases, massive resources that would have to go to be able to have more judges, more courtrooms, more District Attorneys.

“It’s just a fundamental part of the system.”

According to Welsh, the misconceptions around plea bargains can be hard to dispell.

“I think there is the conception that someone’s getting off easy for what they did, and they’re getting ‘a deal,’ while there’s actually a lot of thought that goes into any agreement that is reached.”

Welsh went on to note that the vast majority of plea agreements are based on standard guideline sentencing ranges, and even then, the judge has the final say on whether or not to accept the plea.

“Judge Arner has in the past looked at a plea agreement and said ‘This doesn’t look right, I don’t agree with it,’ and has rejected that plea agreement, so there’s that check on the system, too.”

However, he also noted that the public has the greatest check on the system of all.

“When it comes down to it, the District Attorney is an elected position. Every four years it comes up for election, and I think it’s important that we have conversations like this, where if there are questions like this.

“I think the public should be informed about what’s going on and know what’s happening, and if there are serious concerns, they have the power of the ballot box to say “We don’t agree with this process as it has been going on.'”