A woefully ignorant Herald editorial on the evils of plea bargains

The Herald on Sunday published an editorial this morning criticising plea bargains. “Readers may be dismayed to learn in our report today how plea bargaining has become more common in public prosecutions,” screamed the editorial. The problem is, the associated Herald report – “The real cost of cut-price justice” – says no such thing.

Instead, the report notes two main points. Firstly, that the relatively new Criminal Procedure Act (CPA) allows Crown prosecutors to approach defence lawyers with deals before the trial, whereas “[b]efore the new Act, cases were frequently resolved on day one of a trial with offenders agreeing to plead guilty to lesser charges to avoid a trial”. Secondly, Crown prosecutors are now on a bulk funding model, meaning that there is a financial incentive for prosecutors to resolve cases earlier, with Meredith Connell (who hold the Crown warrant for Auckland) setting up an early resolution unit which identifies the cases most suitable for a plea bargained resolution.

What the report doesn’t provide is any statistics to show that the use of plea bargains is increasing. All that is described by the Herald is the formalisation of a system that already occurred. As the report notes, in Crown prosecutions, the plea bargain would usually occur on the opening day of the trial, costing taxpayers huge amounts in unnecessary Court time and other associated costs. The Herald presents no figures to show that there’s an actual increase in the number of plea bargains occurring, just that it’s occurring at an earlier stage in proceedings.

And is Meredith Connell plea bargaining out more cases, due to their budget restraints and early resolution unit? Again, the report provides no figures to indicate that is the case. The only figures presented come from Steve Haszard, Meredith Connell’s managing partner, who says the firm’s projected disposal rate is down 33% for the year (which would hardly support the thesis that plea bargains are everywhere), while total number of trial hours are down by 3.9% (not a substantial deviation, especially given that crime rates have been falling for the past few years).

That doesn’t stop the Herald editorial from raging about the inherent evils of plea bargains:

Out-of-court settlements are fine for civil disputes but criminal law is different. The litigation is brought by the state, not by an aggrieved party. The penalties can include imprisonment. For that reason, it is important that criminal justice proceeds in public view.

Plea bargaining offends the basic principle of open justice. Whatever is discussed between the lawyers that results in the bargain, it probably would not bear publication. It cannot possibly be a proper testing of the prosecution case. It is more likely to be about convenience and costs.

The Herald appears to fundamentally fail to understand how the CPA and courtrooms work. For a start, plea bargaining will often involve a testing of the police or Crown case. As a criminal defence lawyer, when I sit down with police for a Case Management Meeting (the first official chance for Police and the defence to sit down once a client has entered a not guilty plea) and I’m trying to persuade the Police that a deal should done, I’ll often be pointing out to police the problems that they’ll have in proving a vital element of their case. By that stage, police should have fully analysed their file – they’ll know the extent of their evidence and it will all have been disclosed to defence counsel; and if the investigation requires further work (such as additional ESR testing) that will be in train. A pragmatic prosecutor will often accept that a lesser charge might easily be proved, but that the evidence doesn’t quite stack up in relation to the initial, more serious charge laid.

There are many reasons why police might down-grade a charge in exchange for a guilty plea – for example, the effect on young or vulnerable complainants and witnesses if they’re forced to appear and be cross-examined; or further evidence coming to light after a charge is laid, which weakens the police case, but which may still support a lesser charge. Sometimes, especially in drug dealing cases, police may drop a number of charges relating to specific dates on which offending allegedly occurred, in order to lay a representative charge (one which covers a broad period in which the totality of the offending occurred).

Furthermore, the Herald fails to take into account how plea bargaining relates to the Sentencing Act, which provides for an early guilty plea as a mitigating factor that must be taken into account by the Court. That means that if you plead guilty at the earliest opportunity, you’re entitled to credit of 25% off your total sentence; vacate your not guilty plea on the day of trial and you get almost no credit. Parliament expressly provided for early guilty plea credit because of the advantages to not dragging complainants through the trial process and to recognise the financial savings to the State of not wasting Police and Court time by dragging out a matter unnecessarily. If someone believes they’ve been overcharged, but would accept that they are guilty of a lesser charge, the lack of an ability to plea bargain essentially robs them of the right to access the mitigating factor of an early guilty plea.

Let’s take an example of domestic violence in which a husband allegedly tells his wife he’s going to cut her throat. He then punches her to the head. He’s wearing a ring, which breaks the wife’s skin. Police arrive and charge him with Injuring with Intent to Injure (carrying a five year maximum jail sentence) and Threatening to Kill (carrying a seven year maximum sentence). It’s a perfectly valid pair of charges from a police perspective. There’s a witness who says he threatening to kill her, and an injury to her head (broken skin). The arresting officer is sure that in court, the evidence that he first threatened the victim’s life will allow a judge or jury to infer that there was an intent to injure the victim.

However, the husband’s lawyer tells police that what the husband really said was, “I’m going to cut you out of my life,” and that his wife misheard him. The husband’s lawyer says that his client accepts that an assault took place, but that there was no intent to injure his wife – he struck out with his fist and was horrified the moment he connected.

The prosecutor asks the officer in charge of the investigation to reinterview the victim, to check whether she stands by her statement that her husband said he’d cut her throat. She says she might be mistaken. They’d been arguing, she’d threatened to leave him, and she thinks that’s it’s entirely possible that he yelled that he’d cut her out of his life. The prosecutor goes back to the husband’s lawyer and says, “Okay, we accept we’ll have issues proving beyond reasonable doubt that your guy threatened to kill. Given that there was a single punch, that also puts at risk our inference that he intended to injure her, so how about he pleads guilty to a single Male Assaults Female charge?” The husband gives a thumbs up, and the deal is done.

Now, is the Herald really suggesting that such a case should go all the way through to a trial date, to resolve in exactly the same manner?

And to go back to the earlier quote from the editorial – “Whatever is discussed between the lawyers that results in the bargain, it probably would not bear publication.” What utter nonsense. Prosecutors and lawyers don’t meet in smokey back alley bars and exchange plea bargains for envelopes of cash, followed by congratulatory cigars at how easily justice has been dispensed with. Any visit to a District Court will see numerous cases where either the prosecutor or defence counsel briefly explains to the Judge the reasoning behind why a charge is being amended. Judges often ask off their bat, given that prosecutors are seeking leave of the Court to amend a charge.

The Herald needs to do its research better.



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