plea bargains
mm
When does the approval take place?
It seems like it is only in full court, maybet be days or weeks after
the negotiations with the prosecutor.
Someone defended Roman Polanski's flight to me on the basis that
"they" were breaking the plea bargain they made by iiuc, not allowing
him credit for time served, or maybe by not allowing the time served
to be the full sentence. I said that there really was no plea bargain
until the judge agreed to it. Is that right? Surely the lawyer
explains that to the defendant?
So I think Polanski is responsible no matter what the details of the
law, but I am curious if anyone knows how long it usually take for a
plea deal to be ratified by the judge, whether there is ever any
approval given at the time of negotiations, and how long it took in
Polanski's case.
It's not right, but it does seem that if someone thinks for days or
wweeks, even mistakenly, that he has a firm deal, and it's going to be
refused by the judge, illegally he probably thinks, he's going to
imagine he's justified in fleeing before sentencing. It's like if I
make 12 valid points and the other guy can find something to complain
about one of them, he thinks he's won the argument.
How often do those convicted or who have pled guity flee before
sentencing?
Barry Gold
>Do plea bargains have to be approved by a judge?
Yes, like any other settlement of a lawsuit. (A case in criminal
court is simply a "criminal lawsuit" as opposed to a "civil lawsuit"
for damages or injunctive relief.)
>When does the approval take place?
Generally when the parties go before a judge. That would usually be
at the trial date, but if they reach a settlement before the
preliminary hearing, it can be presented there. If the trial is
months or weeks away when the plea bargain is reached, there will
usually be an appearance before a judge within a day or two.
Depending on how the court handles this, it might be before the
judge who was assigned to try the case, or before a judge in what is
sometimes called "calendar court" (where cases are assigned for
trial). Generally, a part of each court day is set aside to hear
special things like "dispositions" (plea bargains) and motions.
>Someone defended Roman Polanski's flight to me on the basis that
>"they" were breaking the plea bargain they made by iiuc, not allowing
>him credit for time served, or maybe by not allowing the time served
>to be the full sentence. I said that there really was no plea bargain
>until the judge agreed to it. Is that right?
Technically, yes. The deal is, the defendant will plead guilty to
some set of crimes, and the prosecutor will recommend that the
sentence be X. But the judge does not have to accept that deal.
Most of the time, if the judge rejects the deal, it's as if no deal
had occurred. They either find another plea bargain that the judge
will accept, or they go to trial.
But I remember at least one case that went all the way to USCS. The
defendant had pled guilty based on a particular plea bargain. The
judge accepted the guilty plea, but imposed a longer sentence.
Defendant argued that the guilty plea should be set aside because the
judge had not accepted the bargain, but the Supreme Court said, no, a
plea of guilty is legally a statement, "Yes, I did it and I'm 'throwing
myself on the mercy of the court.'" So the sentence stood.
Nonetheless, it doesn't happen very often. Judges are aware that if
they go around canceling plea bargains, the prosecutor won't have
anything to bargain with. And then the judge's calendar, already
overcrowded, will get even worse. Things might even reach the point
where some defendants have to be released because they didn't get the
required "speedy trial".
>How often do those convicted or who have pled guity flee before
>sentencing?
Not often. By the time you've reached the "plea bargain" phase, the
defendant has accepted that "X" is going to happen to him. This
psychological acceptance -- It's going to happen, I'll just have to
live with it -- generally means that the defendant isn't going to run
off. After all, if he does, he'll get sentenced to more than what the
bargain called for.
The exception might be if the defendant is convicted after a trial
where he thought he would be found innocent. But most of the time, if
the jury says, "Guilty", the judge has the defendant taken into
custody right away. (Except when there is an appeal and the judge
allows an "appeal bond", and then the bail is usually higher than it
was before conviction.)
--
Barry Gold, webmaster:
Conchord: http://www.conchord.org
Los Angeles Science Fantasy Society, Inc.: http://www.lasfsinc.org
Rich Carreiro
> Do plea bargains have to be approved by a judge?
Yes and no.
The plea bargain is between the prosecutor and the defendant. So in
that sense they don't have to be approved by a judge.
However, plea bargains are *not binding* on the judge with respect to
sentencing. So in that sense they do have to be approved by the judge
to have any effect on sentencing.
Let's say the defendant is charged with crimes A, B, and C. After
much negotiation, the def't agrees to plead guilty to C if the
prosecution drops A and B. Further, while C carries a sentence of
10-35 years, both sides agree that the prosecution will ask
for/recommend a sentence of 15 years.
When this gets to the judge there is nothing the judge can do about
charges A and B being dropped. They are simply not before the judge
and he can't bring them back. So the dropping charges piece of a plea
bargain does not need the judge's approval.
The def't will now formally plead guilty and allocute to the crime.
The prosecutor will then (as agreed) tell the judge that the state
recommends a 15-year sentence.
But asking/recommending is all the prosecution can do. The judge is
free to sentence for the full 35-year maximum sentence if he so
desires and that is not considered a breach of the plea bargain
(because the prosecutor cannot bind the judge -- he can only recommend
a sentence, which he did, thus fulfilling the plea bargain agreement).
--
Rich Carreiro rlc-...@rlcarr.com
Silence DoGood
> In some (most? all?) jurisdictions, there are particular cases and/or
> court rules (and/or statutes?) dealing with this. �In Michigan, the
> cases are People v Killebrew and People v Cobbs.
Any defendant can claim a right to have a plea bargain honored, but
where is that "right" protected?
In Polanski's case I doubt if it was "signed, sealed, and delivered"
and could be proved legal at the time.
In addition to any infringement on rights claimed by a defendant, we
have to remember that the public needs to maintain limits on
prosecutorial discretion. Only the governor and president are in
positions to grant pardons, and I recommend we keep it that way.
In Polanski's case I am sickened by his ability over thirty years to
focus on "statutory" rape as if the girl gave willingly and framing
the issue as to this girl's personal maturity to make that decision,
when in fact, it appears the evidence was there to convict him of
forcible rape against a victim of any age, nor was there any
mitigation by sudden passion as he apparently quite skillfully got her
parents out of the way and drugged the girl.
In no way was his a victimless crime.
Daniel R.Reitman
wrote:
>mm <mm2...@bigfoot.com> wrote:
>>Do plea bargains have to be approved by a judge?
>
>Yes, like any other settlement of a lawsuit. (A case in criminal
>court is simply a "criminal lawsuit" as opposed to a "civil lawsuit"
>for damages or injunctive relief.)
>> . . . .
>. . . .
Civil settlements, except when required by statute, do not need to be
approved by the court.
Plea bargains, however, must be approved to the extent the court is
convinced the defendant is making a knowing and voluntary decision.
Daniel Reitman
FOR EDUCATIONAL PURPOSES ONLY. NO ATTORNEY CLIENT RELATIONSHIP
INTENDED.
Stuart A. Bronstein
> Civil settlements, except when required by statute, do not need
> to be approved by the court.
Not required, right. But if you don't get it approved and turned
into a judgment, and if the other party doesn't fulfill his
obligations under the settlement agreement, you'll have to go back
and sue all over again.
Barry Gold
>> In Polanski's case I am sickened by his ability over thirty years to
>> focus on "statutory" rape as if the girl gave willingly and framing
>> the issue as to this girl's personal maturity to make that decision,
>> when in fact, it appears the evidence was there to convict him of
>> forcible rape against a victim of any age,
A Michigan Attorney <miatt...@gmail.com> wrote:
>Could the prosecutor have been aware of weaknesses in his case that
>aren't apparent to the public -- such as the child's credibility?
>Could he have wanted to spare the child the additional trauma of a
>public spectacle?
Acto Wikipedia, there was a plea bargain in order to avoid putting
the victim through the trauma of a trial (including public testimony).
Polanski pled guilty to one charge (Unlawful Intercourse With a Minor,
equivalent to Statutory Rape), and the other 5 charges were dismissed.
The fact remains that he stands convicted of that charge. This leaves
him technically free to deny the other charges, though I doubt anybody
with half a brain believes him. (Makes me wonder about some of the
people in Hollywood...)
The plea bargain affected only the charges,
the sentence was left up to the judge. The judge ordered a 90-day
psychiatric evaluation (in Chino Men's Prison), which recommended
no additional jail time. The judge rejected this and said he was
going to sentence him to about 7 weeks additional time.
Polanksi then fled the country.
Now... as to his sentence: This quite correctly should be up to the
judge. Rape is a crime against the public, not just the victim. At
the same time, the victim's desires and opinions should be given some
weight, and California law explicitly provides an opportunity for the
victim to speak to the court before sentence is pronounced.
This rule often tends toward longer sentences, as the victim usually
expresses her trauma and disgust at what was done to her. But in this
case, the victim desires that Polanksi not serve additional time. If
I were the judge, I would take that into consideration and reduce the
sentence (but probably not to probation only). At the same time, his
flight from justice probably deserves some additional punishment.
One other consideration: Polanski is quite rich. Perhaps the court
should consider a minimal jail sentence (in Protective Custody, given
the nature of his crime) and a payment of several million $ to the
state's restitution fund, as a condition of probation. I don't know
if that would pass constitutional muster, but if Polanski does not
challenge it, that would never be decided. I suspect he would choose
to not challenge...
mm
<miatt...@gmail.com> wrote:
>
>Prosecutorial discretion and executive discretion are different
>animals, so you're comparing apples to oranges. And there are strong
>public policy reasons *not* to place tight limits on prosecutorial
>discretion. And oh by the way, who says the prosecutor's offer of a
>plea bargain in Polanski's case was an abuse of discretion anyway?
I'm not the one you're replying to and I'm certainly not saying it was
an abuse of discretion. The thought hadn't occurred to me.
I didn't hunt for where Silence said said so, but when I read
something I thought the complaint was that Polanski or his lawyer or
supporters(!) were saying that all he did was not show up for
sentencing on the smaller charge he had agreed to plead guilty to,
ignoring that he may well have been guilty of the greater charge of
forcible rape (and of one years below her majority no less).
Whether Silence meant that or not, I've gotten that feeling on my own.
That he and sometime other accused felons (or countries during "peace"
negotiations) get compromises from the other side, and then act like
they were entitled to that concession, that it wasn't part of a
compromise, and they aren't obliged to do anything in return. So in
this case, they are acting like he was only charged with sex with
minor in the first place, and since we know there are plenty of minor
girls willing to have sex, some who go looking for it, maybe his doing
this wasn't so bad, so if the government (which they view only as one
thing) promised "time served" then the *governmment* is reneging on a
promise and it's reasonable for him to renege too and not show up.
It's something like bootstrapping except in the opposite direction,
starting with something substantial, a charge of and evidence of
forcible rape of a minor, and step by step working it down until part
of the public things they should just let him go.
mm
Two more things about the Polanski rape case.
A) I'm especially outraged by those -- I've read that they exist --
who think that because he's an "artiste", he deserves to stay free.
What elitist crap.
B) AFAIC, they could still go ahead with the original plea bargain
plus charging him with fleeing (whatever that is called) and trying
him (which wouldn't require the presence of his victim) or reaching
another plea bargain.
But, it seems maybe he woudl have had the chance to refuse the deal at
the time because he might have thought or could claim he was sure to
get a shorter jail sentence than the judge was going to give, and
maybe he still has the chance to refuse the deal.
So it does seem that he can refuse the old deal now????? His lack
of a speedy trial is his fault. But the victim may have forgotten
details and might not even be willing to testify. Is he able to
benefit from these prosecutorial problems that he caused????? What if
she had died for unrelated reasons, a plane crash, during the
intervening time? How could the prosecution make a case?? and should
a defendant benefit from this? Would a defendant benefit from this?
Is the only remedy a sentence for fleeing? I don't know but I would
guess that the maximum for that is about 5 years. What happens if
someone murdered 20 people at age 20, flees for 30 years and the only
witnesses die, or were also murdered by him, and then they catch him
again. He just gets 5 years with parole after 36 months?
Seth
>The plea bargain affected only the charges,
>the sentence was left up to the judge. The judge ordered a 90-day
>psychiatric evaluation (in Chino Men's Prison), which recommended
>no additional jail time. The judge rejected this and said he was
>going to sentence him to about 7 weeks additional time.
According to what I read, he was released after about 6 weeks of
evaluation; the judge said that he'd order the rest of the 90 days to
be served. That wasn't a violation of the plea bargain.
Seth