Tuesday, April 19, 2016

Rights of victims are limited in plea negotiations in Ohio

Matthew T. Mangino
The Youngstown Vindicator
April 17, 2016

There are no two words associated with the criminal justice system that are more maligned and misunderstood than “plea bargain.”
Crime victims despise those two words; defense attorneys thrive on them; and prosecutors can’t survive without them. Politicians deride the system because of the underhanded “deals” made with vicious criminals. Even frontline police officers challenge prosecutors when they perceive that the terms of a plea bargain are too lenient.
Much needed tool
The plea bargain, however unpopular or unseemly, is a much-needed tool in the administration of justice. The truth is that 97 percent of federal cases and 94 percent of state cases end in plea bargains. As the system currently operates, it would be impossible to provide a constitutionally mandated trial-by-jury for every criminal defendant.
Setting aside the fact that trying every criminal case is beyond the capacity of the courts, there are other compelling reasons to plea bargain. Prosecutors are intimately familiar with the strengths and weaknesses of every case. There are circumstances where a plea to a lesser offense is better than a not-guilty verdict. A reluctant witness or a poor witness may also influence plea negotiations.
Many crimes are committed in rough neighborhoods that are inhabited by tough people. Witnesses often have to deal with their own demons, such as criminal records and substance abuse – such witnesses do not impress juries. In those cases, a plea bargain may not be palatable, but is better than the alternative.
Crime victims, people who have been physically and emotionally harmed, often do not want to hear about the strength or weakness of a case. They want justice, and that is often equated with a lengthy prison term. Victims want to be heard, and they have that right in Ohio. What victims don’t have is veto power over plea bargains.
“The Ohio Revised Code guarantees victims the right to confer with a prosecutor prior to a plea. If the prosecutor fails to do that, the judge can note that on the record,” Elizabeth Well, legal director for the Ohio Crime Victim Justice Center, told the Toledo Blade.
No teeth
“The issue with the crime victims’ rights law in Ohio is it doesn’t really have teeth,” Well said. “In some states, if the prosecutor doesn’t confer with the victim prior to accepting a plea and the court finds out, they can set the plea aside, basically undo it, but that’s rare.”
The final word on a plea rests with the district attorney, creating some concern in the criminal justice system. “We now have an incredible concentration of power in the hands of prosecutors,” Richard E. Myers II, a former assistant U.S. attorney and a professor at the University of North Carolina told the New York Times. He warned that with so much influence “in the wrong hands, the criminal justice system can be held hostage.”
This is not to suggest that all of that power is necessarily in the wrong hands. The vast majority of prosecutors are ethical and fair and no other individual in the criminal justice system is better positioned to understand the nuances of a case than a prosecutor. The prosecutor knows better than anyone that proving guilt beyond a reasonable doubt is a daunting task, under any circumstance.
Disappointing outcome
Jeff Lingo, chief of the criminal division of the Lucas County, Ohio, Prosecutor’s Office told the Blade, “If the victim thinks they’re disappointed with a resolution on the case, they may be even more disappointed if a jury can’t reach a conclusion and a person walks out of the court with no punishment.”
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com.
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