Last week I agreed to a plea deal on a stabbing case. The defendant walked into a deli, pulled out a knife and repeatedly stabbed someone waiting on line. To say that the defendant and the victim had a history of disputes between them is to put it mildly. Let's just say that they had been unfriendly toward each other for quite some time. The entire incident was captured on the store's security cameras, which provided shockingly clear footage. When I interviewed the victim, she was well-spoken and credible. The defendant gave a videotaped confession to police after waiving her Miranda rights. It was a case that I probably couldn't lose if it went to trial. And it made me wonder: if the evidence was so good, why did I agree to a plea deal in this case?

It made me consider a different scenario. I am currently assigned four open cases for a different defendant. His family keeps bailing him out, and he keeps getting arrested for selling drugs. After he got arrested for his third case, I stopped making him plea offers. I figure that I might lose one case, and maybe even two, but it's extremely unlikely that I would lose four cases. And if a jury convicts him of even one case, I will likely be able to persuade a judge to sentence him to more prison time than he would agree to in a plea deal. But is my decision to forgo the plea-bargaining process in order to obtain the maximum possible sentence a drain on the court's and the witness's time?

And just last week, after a video of a brutal home invasion made the news, I overheard a conversation about the case on the train to work. "They'll probably plead that guy out," a man said, clearly annoyed. "They plead everyone out." Do most people consider plea bargains to be defeats for the state?

I am a prosecutor in Essex County. I always have roughly 80 cases on my docket. Obviously, some of those cases require a lot more work than others, but they all require review and analysis. Trying to get ahead on my workload is like trying to push waves back into the ocean with my bare hands. Mostly I exhaust myself trying to stay on top of my cases. Drowning metaphors are common in my office in response to the question, "How's it going?"

Like the defense attorneys I work with, I rely on plea bargains to resolve most of my cases. Without plea bargains, we couldn't handle the enormous number of cases we are assigned. Together, we evaluate the character and criminal history of the defendant, the seriousness of the crime, the strength of the evidence and the potential legal issues in the case to negotiate a plea deal. Sometimes other factors come into play, such as the possibility of rehabilitation for someone who has "money over bitches" tattooed across his face. We at least make an effort to resolve most cases with a plea agreement before proceeding to trial. When we fail to resolve a case with a plea bargain, we blame each other and cancel our weekend plans to prepare for trial.

About once or twice a year, I get a case where the evidence is practically perfect for the state. Sometimes it's a crime that's caught on video, sometimes there are a dozen witnesses, sometimes the defendant is arrested with the gun in his hand, or sometimes a defendant gives a perfect and complete confession. Of course, these scenarios rarely present themselves. But when they do, I formulate a plea offer just like I do on every other case. The plea bargain usually calls for a stiffer penalty if the evidence is strong and the plea takes into account that the risk of losing the trial is small. But is the criminal defendant always entitled to a reasonable plea offer? Or, in some cases, is it my duty to try the case to get the highest sentence possible? Or, as the overheard conversation on the train seemed to imply, is it my duty to conduct a public trial and allow the community to decide the case?

Plea bargaining has become firmly accepted in this state "as a legitimate, respectable and pragmatic tool in the efficient and fair administration of criminal justice." State v. Taylor, 80 N.J. 353, 361 (1979). Courts across the country have adopted plea bargaining as an appropriate accommodation of the conflicting interests of society and persons accused of crime, and as a needed response to an ever-expanding case load. The system enables a defendant to reduce his penal exposure and avoid the stress of trial while assuring the state that the wrongdoer will be punished, and that scarce and vital judicial and prosecutorial resources will be conserved through a speedy resolution of the case. When properly administered, plea bargains can benefit all concerned. And, of course, speaking in financial terms, without plea bargains our current court structure couldn't accommodate the volume of cases, so we would need to hire (and pay) more judges, court staff members, defense attorneys and prosecutors to resolve all of the cases.

A plea bargain is a trade-off between the risk that I will lose a case and the defense's risk that I will win the case. The state gets a guaranteed conviction on the defendant's record and an agreeable sentence. The defendant gets a lesser sentence or pleads to a lesser charge than he or she might expect after losing a trial. A plea bargain is a risk management tool: both sides are managing the risk of losing while guaranteeing partial success.

In order to determine the propriety of the plea-bargaining process, I contemplated the duty of a prosecutor. The duty of a prosecutor can be summed up in a handful of quotes. A prosecutor "may prosecute with earnestness and vigor — indeed, he should do so." State v. Farrell, 61 N.J. 99, 104 (1972). But it is axiomatic that "the primary duty of a lawyer engaged in public prosecution is not to convict, but to see that justice is done." Canon 5, ABA Canons of Professional Ethics. If fairness and justice are forgotten in the pursuit of a guilty verdict, the integrity and authority of our criminal justice system is challenged. State v. Smith, 54 A.3d 772, 793-794 (2012). The duty of the prosecutor "is as much … to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Id at 794.

The prosecutor's responsibility to vigorously represent the people of the state of New Jersey, and at the same time ensure that justice is done in every case "is uniquely challenging." State v. Ramseur, 106 N.J. 123, 323-324 (1987).

While there is plenty of law regarding the duties of a prosecutor, it is unclear how the law applies to the formulation of plea bargains. On the one hand, I can represent the state "with earnestness and vigor," and proceed to trial without making plea offers on many cases. On the other hand, I could secure a conviction and a substantial penalty without the need for a trial, which may result in "justice being done," even if the penalty is not as harsh as I perhaps could secure after a trial.

Whenever I tell a defense attorney that I am not offering a plea bargain in a particular case and that they should just prepare for trial, they often consider it unfair. The defendants I have spoken to agree. They feel that they should be entitled to a reasonable and fair sentence if they are willing to admit to their guilt. Of course, their definition of "fair sentence" is usually drastically different than mine.

And perhaps they are right to feel that it's unfair. If they are willing to admit that they are guilty, I should reward them with a lesser sentence or a plea to a lesser charge in recognition of the time and other resources that they saved; for example, the police officers involved in the case are out on patrol instead of in court testifying for days.

In the end, absent any rule (written or unwritten) concerning a defendant's right to a reasonable plea offer, I believe that cases with strong evidence are to be treated the same as the other cases I have: if I feel that I can obtain a just result with a just sentence without a trial, I will attempt to resolve the case by plea bargain, regardless of the evidence available. Because, in the end, the harshest punishment is not always the just result. •

Next Week…

Trusts and Estates