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When the Prosecutor Lets Your Co-Defendant Decide Whether You Get a Plea Offer

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by: Ryan • December 11, 2011 • no comments

I was rather astounded to learn, just today, that, in some counties in Oregon, prosecutors routinely hinge the decision to make a plea offer on whether the co-defendant agrees in advance to accept a plea offer. This seems viscerally unconstitutional, but let's see if I can articulate an argument that is something more than a gut feeling.

Take an extreme example. This example is so extreme that it would be immoral as well as unconstitutional, so let's hope no one has ever been put in this situation. But it helps to make the argument as stark as possible.

Two defendants are charged with aggravated murder. Both are facing the death penalty if convicted. The plea offer? If both of them agree, they can both get life in prison without parole. If either refuses, it's off the table for both of them and the state will seek to execute them both.

To be slightly more precise, there is no plea offer yet. Rather, the decision to make a plea offer to Defendant A is contingent on Defendant B agreeing in advance to the same plea offer. But no offer is made to A or B unless there is a commitment from both to accept.

Consequently, the decision whether or not a plea offer is made to Defendant A is within the power, control and discretion of Defendant B. The prosecutor has delegated this incredible power over Defendant A's life to someone who may be - okay, probably is - a murderer.

While the prosecution has discretion to make a plea offer or not, the equal privileges clause of the Oregon Constitution requires that the offer reflect a coherent, systematic, consistently applied policy. See a whole line of cases, starting with State v. Buchholz, 309 Or 442, 446 (1990) (assuming "that, at least in certain circumstances, the equal opportunity to plea bargain, recognized by statute, is a privilege protected by section 20.").

The Buchholz court then quoted the lead equal privileges case in Oregon, State v. Freeland:

Section 20 protects individual citizens as much as it does classes of citizens. State v. Freeland, 295 Or 367, 370, 667 P2d 509 (1983). n2 Furthermore, even when a decision rests within the discretion of the district attorney, that decision is subject to judicial scrutiny. State v. Freeland, supra, 295 Or at 370. On the other hand, the mere presence of discretion does not necessarily present any inherent section 20 problems, id. at 371, so long as the exercise of discretion "adheres to sufficiently consistent standards to represent a coherent, systematic policy." Id. at 375. Stated differently, the exercise of discretion meets the constitutional standard if "made by permissible criteria and consistently applied." Id. at 377.

State v. Buchholz, 309 Or 442, 446-447 (1990)

The Buchholz court determined that the statutory criteria for plea offers that are listed in ORS 135.415 constitute a sufficient and coherent policy.

Here, the district attorney complied with the standards expressed in ORS 135.415 and agreed to the bargain based, at least in part, upon Cooper's willingness to testify against defendant. The absence of a record establishing that defendant was willing to testify against Cooper, on the other hand, shows that the decision not to offer a plea bargain to defendant was generally consistent with the legislatively-recognized standard found in ORS 135.415(5). Adherence to that standard meets the Freeland requirement that the District Attorney adhere "to sufficiently consistent standards to represent a coherent, systematic policy." Defendant has not established a predicate for the alleged constitutional violation.

State v. Buchholz, 309 Or 442, 447 (Or. 1990)

So let me ask, in a situation where the prosecutor has delegated the plea offer to your co-defendant, how likely is it, do you think, that the co-defendant will make his decision whether your life is spared based on a "coherent, systematic policy"?

Again, I chose a stark example. But in this example - which is different only in degree, not in kind, from offers which are (apparently) routinely made in some counties in Oregon - the prosecutor's decision whether to spare a defendant's life, whether to save the defendant from being executed, is delegated to a man who is also charged with aggravated murder.

The Oregon Supreme Court has previously found it unlawful for the DA's office to delegate the decision to make a plea offer in a capital case to the victim's family.

Both ORS 135.405 and ORS 135.415 place the authority for negotiating a plea agreement on the district attorney.

The state characterizes the error which it concedes occurred in this case as having been caused by the district attorney impermissibly delegating the decision to enter into a plea agreement to the victim's parents. The state is correct that, based on the limited record before us, the district attorney improperly delegated the decision whether to enter into plea negotiations to the victim's parents. Unfortunately, the record is too limited to permit us to determine the extent of that delegation.

State v. McDonnell, 310 Or 98, 104 (1990)

McDonnell was remanded back to the trial court, and ultimately the death sentence was re-imposed, when the trial court found, consistent with the record developed after remand, that the DA would have sought death regardless of the family's input. (Somewhat of a simplification . . . the opinion is worth reading in full.)

McDonnell I was not an equal privileges case but McDonnell II was. While no equal privileges violation was found, the fact that otherwise discretionary plea offers were subject to an equal privileges analysis was affirmed.

This principle was subsequently re-affirmed in State v. Hayward, which summarized the law as follows.

Whether a criminal defendant was improperly denied a plea offer is reviewed for an error of law. McDonnell, 313 Ore. at 484. The defendant must demonstrate the error. Id. at 494. Standardless or irrational prosecutorial plea bargaining decisions violate Article I, section 20, of the Oregon Constitution, State v. Cunningham, 320 Ore. 47, 66, 880 P.2d 431 (1994), but prosecutorial discretion regarding plea bargaining does not violate Article I, section 20, if that discretion is exercised in the context of a coherent, systematic policy. Id. (citing State v. Buchholz, 309 Ore. 442, 446-47, 788 P.2d 998 (1990)). If the decision not to offer a plea bargain satisfies the requirements of Article I, section 20, the Equal Protection Clause is complied with as well. State v. Tucker, 315 Ore. 321, 328, 845 P.2d 904 (1993).

State v. Hayward, 327 Or 397, 404 (Or. 1998)

Again, my question is this: how is it possible to delegate the decision whether to offer a plea bargain to the defendant's co-defendant and still claim that the plea offer comports with a systematic, coherent policy? If the co-defendant says, "I won't take this deal because I fucking hate my co-defendant and I want him to fry," is that consistent with the DA's policy on plea offers? Or the statutory criteria listed in ORS 135.415?

If you represent a co-defendant who wants to take an offer that the prosecutor is unwilling to make only because the co-defendant will not take his plea offer, then you should file a Motion to Compel the Plea Offer.