Wednesday, May 30, 2012

The Death of Bryan Stevenson and Why Plea Deals are Struck

The whole idea of lawyers “making plea deals” causes a lot of people discomfort.  Maybe it’s the concept of people who are supposed to be integral pieces of our judicial systems coming together, and everyone agrees NOT to do their “jobs.”  And I get that.  Or maybe it is the nagging feeling in the back of some people’s heads, that - these guys in suits get together in some secret room, have a secret conversation, and all the sudden, someone gets way too good of a deal.  The idea of a plea deal, in general, just smells bad to some people.

Regardless of the reason, a lot of people seem to be really unhappy when lawyers make settlements – particularly in criminal cases.  For those of you who have been angered or disturbed by a recent plea deal, this blog post is for you.  Per

The man on trial for the death of a Northern Kentucky athlete reached a plea deal Tuesday that includes the dropping of a murder charge and likely no jail time.

Justin Werner was charged with beating Bryan Stevenson to death outside a Louisville restaurant on May 30, 2010. As part of his deal to plead guilty to multiple other charges, the murder charge will be dropped. [apparently, it already has been dropped]

Werner pleaded guilty to assault under extreme emotional disturbance, trafficking in a controlled substance and possession of drug paraphernalia. Werner faces up to three years in jail time for these charges, but the prosecution is only recommending five years probation and Werner has already served two years of house arrest that will count toward his sentencing.
A sentencing date will be determined on June 4.

‘The murder charge was amended to manslaughter 1st degree before the trial started,’ Leland Hulbert, Asst. Commonwealth Attorney said. ‘The manslaughter charge was reduced to assault under extreme emotional disturbance due to inconsistent witness testimony. [this is going to be important for today’s analysis] Werner will likely be probated by the Court."

…On Thursday, witnesses took the stand, including one man who said he saw the fight break out.

Paul Demoss testified that someone spit on another person, which caused the fight to start.
‘I reached down and picked him up, and reached down, and kept saying wake up, you got knocked out. And he wasn't waking up,’ said Demoss.

Demoss couldn't identify who threw the fatal blow that killed the 26-year-old. [also very important] [notes added for clarification]

First, let’s start with the presumption that police officers will charge a suspect with the absolute highest level of crime possible.  Even a lot of police officers will admit that this is the standard… “protocol” isn’t the right word, but it’s the first one that comes to mind.*  Police will charge a suspect with the greatest degree of crime that is even a remote possibility.  Remember the stripper arson bar lingerie post?  

The reasons for “over-charging” include, but are not limited to the following: 1) Police officers know that plea deals exist.  So they start with a higher charge, because some slimy criminal defense lawyer like me is going to haggle it down.  2) Police officers like to pad their own records.  If it is possible to get a higher charge to stick, it looks good for them.  Getting a murder conviction looks better on an officer’s record than getting a reckless homicide conviction.  3) Sometimes, police officers just don’t know the law.  I’ve had a lot of disorderly clients who were charged with Disorderly Conduct in the First Degree (hereinafter, DC1).  DC1 requires a person to be disorderly in the presence of a funeral, burial, or funeral procession.  And a lot of police officers don’t know that.
Over-charging can benefit a police officer, as in the first 2 of the above 3 scenarios.  However, it can also backfire.  If a case gets a lot of publicity, and the criminal defendant ends up being convicted of a lesser charge, it looks like the prosecution “lost” when the criminal defendant should have been charged with the lesser charge in the first place.  Now the prosecution looks incompetent and the criminal defendant looks like he or she “got off” because of some slimy criminal defense lawyer.

Let me get back to the Justin Werner case for a minute.  First and foremost, I have no idea what happened in his case.  I haven’t been following it at all.  I only know what I read in the news story that I posted above.  But from the witness testimony, it looks like there was a fight of some sort.  However fair, unfair, or drastically unfair the fight may have been, at least one witness testified that there was a back and forth aggression of some sort.  If that was the case, the “lack of extreme emotional disturbance (hereinafter, “EED”)” element for murder is going to be difficult for any prosecutor to prove.  Especially with conflicting accounts of what happened.  It doesn’t surprise me in the least that the murder charge was amended down to a homicide case without the “lack of EED” element. 

I'm not saying the prosecution didn't have a case, I'm just saying that there look to be some hurdles along the way if they wanted to prove a homicide.  Not the least of which would be Demoss' statement that, as a witness, he couldn't tell who threw the blow that killed Bryan Stevenson.  A jury may very well have believed that Werner probably killed Stevenson.  but "probably" isn't the standard of proof for a criminal jury trial.  The standard is Beyond a Reasonable Doubt.  More on this later.

Back to the original issue of plea deals and the appropriate or inappropriate nature thereof – Let’s talk about prosecutors for a bit.  The Prosecution’s job is not just to prosecute.  Prosecutors represent the interests of the Commonwealth (and to a degree, the County) in District Court cases and the Commonwealth in Circuit Court cases, like the Werner case.  They have a pretty complicated job.  They look out for the interest of the victim and/or victim’s family.  They take into account the wishes of the police officers involved.  And they are supposed to look out for the best interests of the Commonwealth – how much of your tax dollars to spend on a case that they may or may not be able to win.  On top of all of that, (unless they are THE Commonwealth Attorney in their Circuit) they have a boss, who may have his or her own expectations.  They weigh the evidence in a case, both the inculpatory and exculpatory, and make a decision on what a jury might do - which is virtually, if not completely impossible, given the Beyond a Reasonable Doubt standard.
In short, Bryan Stevenson’s family may not have gotten what they feel is justice – hell, they may not have gotten justice at all.  Who knows.  But given the witness testimony and unclear circumstances surrounding the death of Stevenson, it would have been extremely difficult to guess what a jury would have done in this case.  I certainly don’t blame the prosecution or the defense attorneys for compromising and settling this case.
I hope this helped shed a little light on why plea deals get struck, and why charges are reduced.  If not, I hope it was a nice distraction.

*Literary device taken from Chuck Palahniuk.  "Borrowed" isn't the right word, but it's the first word that comes to mind.

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