As shocking as it may sound, many prosecutors in multiple jurisdictions will coyly use the carrot of a plea bargain combined with the threat of a serious sentence to get criminal defendants not only to plead guilty short of a trial, but also to have their attorneys forgo even investigating the claims against them.
For example, recently the Law Office of Chris Van Vechten won a minor domestic violence case. The State alleged that the client and her 9-month-pregnant daughter, “stormed in” to the house of the daughter’s ex-boyfriend while he was asleep on the couch and without reason or explanation, the client held the boyfriend’s arms at his side while her pregnant daughter repeatedly struck him in the face. The reporting officer on scene wrote in the incident report:
[The boyfriend] tried to explain a very convoluted story about drugs, gang and prostitution activity in the area. He claimed he is already working with the FBI regarding the investigation. He tended to ramble about all of the other alleged activity, and it was difficult to get him to focus on the assault today. After awhile, I was able to get a synopsis of the incident from today. [He] said his girlfriend has previously worked as a prostitute for his mother and some local gang members. He claimed he is trying to help her stop working as a prostitute. He believed the mother was mad at him for interfering with the prostitution activity that the mother is profiting from. He couldn’t explain why his girlfriend was assaulting him for trying to help her.
Since neither the client nor her daughter were at the house when the officer was investigating the case, neither were ever interviewed by law enforcement.
Objectively, this was an unreasonable case to file. Yet the prosecutor charged both the mother and her daughter with Assault in the Fourth Degree, Domestic Violence.
In response, the Law Office of Chris Van Vechten sought to demonstrate that the boyfriend at issue was a very controlling and violent individual when it comes to the women in his life, and that he has a particular history of abusing pregnant women which is documented in our courts. In 2009, the King County Superior Court granted a protection order against him based on one girlfriend’s claim that since becoming pregnant, he had assaulted her multiple times, engaged in telephone harassment, told her that he was going to kill her and her entire family and then kill himself if she ever left him. In 2015, he was charged in Pierce County Superior Court with Felony Harassment. In that case, he had shown up drunk at the residence of another ex-girlfriend and made various threats. When officers took him into custody, he asked them for their name and badge number, and once given declared that when he got out of jail he was going to “find the officer and his family and force the officer to watch while he killed the family members before killing the officer.”
Our client’s story was that on the morning of the day in issue, the client and her daughter informed the boyfriend that she was leaving him. Realizing that he would no longer have access to his girlfriend, the State’s alleged victim characteristically responded with violent threats about what would happen to both our client and her daughter if she left the house. As the client’s daughter was packing up her belongs to leave, the boyfriend followed her from room to room hurling insults and making threats. Eventually, our client’s daughter told her now ex-boyfriend to “fuck off.” This set him off. He charged at her in an attempt to assault her despite the fact that she was nine-months pregnant. She ran, and her mother – our client – tried to shield her by blocking the boyfriend’s advance by standing in a doorway. The boyfriend plowed through our client, thereby initiating the only point of physical contact between himself and the Defendant over the course of the incident.
The two ladies escaped from the house and fled the scene. The theory of our case thus was that the boyfriend, frustrated by his inability to abuse his pregnant girlfriend as he had with previous girlfriends, was attempting to use the prosecutor’s office as a tool of domestic violence.
THE PROSECUTORS TRY TO DEFEAT INVESTIGATION VIA A PLEA OFFER
The State was made fully aware of all the problems with their alleged victim. Yet, instead of dismissing in the face of what objectively appeared to be a miscarriage of justice, they made our client the typical offer of someone with little to no criminal history: pay for a year or two of expensive “therapeutic” classes, pay expensive court fines, give up your right to a trial and your presumption of innocence, and if you don’t commit any crimes for one or two years and you pay all of your fines and classes on time, we’ll dismiss your case. No jail, no conviction, just a couple thousand dollars out of your pocket and probation.
Naturally, of course, the value of a plea offer – which is effectively what all such agreements are – is determined by the value of admissible evidence. And so, as any responsible attorney who is actually advocating for their client would do, we attempted to interview the State’s alleged victim. However, he was – shockingly – noncooperative and responded to our efforts with vague threats.
So, we asked the Prosecutor’s office to assist us in setting up an interview with their star witness. This was the State’s reply:
Typically, interviews are only requested once the case sets for trial. We can do it during the pre-trial stage, but I want you to know beforehand that I do not keep pre-trial offers open once interviews have been requested. This is because we do not know what the interviews will show. The case could get better. It could get worse. It also drastically lowers the State’s incentive to negotiate because we will have expended significant resources preparing for the interview and are, therefore, already partially prepared for trial.
If you want to negotiate the case before we go through the interview process, feel free to give me a call or send me an e-mail with your proposed counter offer and the reasons why it is appropriate.
We responded by immediately objecting to the State’s proposal that cases be negotiated purely on the basis of allegations without the benefit of examining the evidence, and the seemingly coercive effort to use a plea offer to defeat due process of law. Then we filed a motion. Before it was heard, the State dismissed, allegedly because their victim stopped cooperating even with them.
ARE SUCH TACTICS LAWFUL?
DOES YOUR ATTORNEY HAVE A DUTY TO RESIST SUCH COERCION EVEN IF IT SUBSEQUENTLY HURTS THE CLIENT?
While most people would probably agree that such conduct is unbecoming of an office sworn to protect the community and to do justice, the issue of whether these tactics constitute prosecutorial misconduct is less clear.
The Pierce County Prosecutor’s Office has been condemned in the past for using plea bargains to discourage defense counsel from investigating claims against the accused. In State v. Zhao, 157 Wn.2d 188, 137 P.3d 835 (2006), Justice Sanders wrote a concurring majority opinion with Justice Chambers calling the Pierce County Prosecutor’s Office policy “prosecutorial misconduct” and warned that “acquiescence [to the policy] by defense counsel may be unethical as well.” Id. at 206.
The United States Constitution and the Washington Constitution both guarantee a criminal defendant the right to counsel. U.S. CONST. amend. 6; WASH. CONST. art. I, 22. To provide constitutionally adequate representation a criminal defendant’s counsel ” ‘must, at a minimum, conduct a reasonable investigation enabling … informed decisions about how best to represent [the] client.’ ” In re Pers. 157 Wn.2d 205 157 Wn.2d 205 Restraint of Brett, 142 Wash.2d 868, 873, 16 P.3d 601 (2001). And the prosecution may not interfere with this investigation. State v. Burri, 87 Wash.2d 175, 180, 550 P.2d 507 (1976).
Interviewing witnesses is an essential part of a reasonable investigation and counsel cannot properly evaluate the merits of a plea bargain without fully investigating the facts. To quote Zhao: “by conditioning the availability of a plea bargain on a limited investigation, the Pierce County Prosecutor infringes the right to counsel.” Id. at 205. It is true that a witness for the prosecution may refuse to speak to the defense. Kines v. Butterworth, 669 F.2d 6, 9 (1st Cir.1981) (holding witness “may of his own free will refuse to be interviewed by either the prosecution or the defense”). However, “the prosecution may not discourage interviews.” Zhao at 205. By discouraging interviews, “the Pierce County Prosecutor’s policy improperly interferes with a defendant’s right to investigate the facts.” Id. at 205.
Additionally, while it is true that defendants do not have a right to a plea bargain, when the prosecution elects to offer one, it may not use said plea bargain as a coercive tool. See State v. Hofstetter, 75 Wn.App. 390, 402, 878 P.2d 474 (1994). As the Court wrote in Zhao:
The defense has a right to interview adverse witnesses, and the prosecution may not place coercive conditions on its exercise. As a ” ‘quasi-judicial officer, representing the People of the state,’ ” a prosecutor must ” ‘act impartially in the interest only of justice.’ ” State v. Reed, 102 Wash.2d 140, 147, 684 P.2d 699 (1984) (quoting State v. Case, 49 Wash.2d 66, 70-71, 298 P.2d 500 (1956)). Preventing the defense from fully investigating the facts hardly serves the interests of justice. It may be unethical prosecutorial misconduct. And acquiescence by defense counsel may be unethical as well. Zhao at 206.
Furthermore, when the State adoptes this negotiating posture, it may violate CrRLJ 4.7(g)(1), which reads: “except as otherwise provided by protective orders or as to matters not subject to disclosure, neither the lawyers for the parties nor other prosecution or defense personnel shall…impede the opposing lawyer’s investigation of the case.” If the intended effect of the State’s plea offer was to impede the investigation of the case, then possibly there is a serious violation.
AND YET, there are many courts where prosecutors get away with this tactic by explaining that they are not making threats, just informing the opposing counsel that they may withdraw the offer based on what the proposed investigation may reveal, and then remind everybody that they don’t have to give anybody a plea offer to begin with so they can frame the terms of that offer as they see fit.
WHAT CAN WE DO?
While the actions of defense attorneys reflect the personal interests of their clients, prosecutors are predominately directed by politics and internal office policy. They are charged with protecting and representing the community, and therefore the community has the power to influence the internal policies of their local prosecutors.
Members of the public should consider taking the time to express their concern that innocent people might be found guilty because of insufficient resources or investigation by defense counsel. Since most prosecutors rarely engage in constituent correspondence and derive most of their policies from interactions with law enforcement, treatment providers and related groups, just a few emails and letters might dramatically influence the culture of prosecution in your community. This should also be something that is routinely brought up when prosecutors are seeking re-election.
For our part, the Law Office of Chris Van Vechten is committed to challenging this tactic whenever and wherever it is employed because it is our belief that it constitutes prosecutorial misconduct and can only lead to serious due process violations and miscarriages of justice. While it is true that prosecutors are not obligated to make a plea offer at all, that does not mean they may use a plea bargain to defeat an investigation. But, it is the client, not the attorney, who suffers the wrath of prosecutors and judges and those brave enough to assert their constitutional rights have to understand this going forward.