Dirty Dealing: the Dark Side of Plea Bargaining

In Oklahoma, the chances of a case going to trial are very slim. In fact, most experts say that 90% to 95% of all cases in Oklahoma are resolved through plea deal or plea bargaining. The way the process works is very secretive, with negotiations being conducted behind closed doors between defense attorney and prosecutor. Many times, the defendant doesn’t have any say in the process. While common, this is a practice that needs a complete overhaul and significantly more insight.

Forced Bargaining: A story of how Plea Bargaining Goes Wrong

A gentleman was arrested in March of 2021 for a felony crime that should have had a relatively light sentence. He had no knowledge of the alleged crime, but was forced to take a plea deal that sentenced him to twenty years, plus restrictions on his livelihood for the rest of his life. With a good defense attorney, he should have faced at most a maximum of two years in prison. He had no prior criminal record, was involved in several nonprofits that helped his community, and was well-known and respected in his community. Still, he was arrested for a crime he did not commit, and has never been given the opportunity to prove his innocence.

After paying out $10,000 to one of the best local defense attorneys he could find, that attorney began to fight the charges. Initially, with only two counts, and relatively minor ones at that, the defense attorney believed that he could easily win the case. However, the district attorney would not share the evidence with the defense, and when forced, would only turn in small portions at a time. This went on for over a year.

Case Tactic 1: The district attorney will use time as a tool to wear down the defense, causing the defendant to lose hope and take a plea deal.

During that time, realizing that the defendant intended to fight the charges and take the case to trial, the district attorney began adding additional charges to the case. The longer that the fight continued, the more charges were levied against the defendant.

By the time that the case was set to go to pre-trial, there were an additional four charges. The original charge was changed to one that was significantly worse, allowing the district attorney to ask for a life sentence. Now, there were four counts that carried a life sentence, and another count that carried a 10 year sentence.

Case Tactic 2: The district attorney will begin adding charges to scare the defendant into taking a plea deal. The district attorney can lie, however, before the case goes to trial they have to provide all of the evidence they have. This means that they can state anything they want to generate fear in the defendant, even if it is completely false.

With this, continuing to trial became a huge gamble. If the case was fought and the defendant convicted, then he could potentially spend the rest of his life in prison for a crime that typically resulted in a short prison stay. The defendant had a very strong case, including GPS data that showed that he wasn’t there during the time that the crime took place.

The district attorney stated that they more evidence that showed that multiple crimes had been committed. None of that evidence was shared with the defense attorney. After hearing that, but without being able to verify it, the defense attorney entered in to negotiations for a plea deal. The defendant was not notified that this was happening until a deal had already been reached.

By this time, the defense lawyer had been paid in full. The defendant reiterated many times that he intended to fight the charges, even bringing the case to trial. The defense lawyer stated that the case was impossible to win and that by continuing to fight, he alluded that there was a possibility that the district attorney could then go after his wife and friends with similar charges.

Case Tactic 3: Local attorneys work closely together, no matter what side of the case they are on. The case is especially true for public defenders. They are not immune to peer pressure and many times will take the word of the district attorney over a defendant. Knowing that trials are expensive, both sides use this to encourage defendants to take plea deals.

Case Tactic 4: District Attorneys will use whatever leverage they can gain. If they can bring the defendant’s family into the case with the threat of being charged, they will use that to their full advantage.

Left with no other choice, the defendant had to take the plea deal, which consisted of twenty years under Oklahoma Department of Corrections.

Time to Change Oklahoma’s Plea Bargain Process

When taking the plea deal, the defendant must stand before the judge and essentially lie, stating that he was not forced into taking the deal. Sadly, this is perfectly legal. District Attorney’s, as well as any member of law enforcement, are allowed to lie right up until a jury trial is scheduled.

Tactics used by prosecution to force guilty pleas should be made illegal by requiring ethical practices, including sharing of discovery as it is found, establishing charges at the beginning of a case, and complete transparency throughout.

Plea Bargains/Deals in their current capacity do not work.

1. If offered the choice, most people accused of a crime would choose the lesser charge if only presented with two options. Typically, the two options are to either go to trial, in which the maximum sentence would be applied, or take the plea deal. Both prosecutor’s and defense lawyers say that if a case goes to trial, the likelihood of losing is very high.
   1. In fiscal year 2022, only 290 of 71,954 defendants in federal criminal cases – about 0.4% – went to trial and were acquitted. (PEW)
2. Plea deals don’t paint a full picture of the likelihood of a case winning at trial. Prosecutors can withhold evidence, even exculpatory evidence that may clear the defendant, prior to offering a plea deal. They are not required to turn over all of the evidence until later in the process, many times just days before a trial, which gives them ample time to persuade defendants to accept a plea deal.
3. Charges may be added at any point in the process up until pre-trial. Prosecutors can add charges after finding out that the defendant intends to take the case to trial. This is one tactic to entice a defendant to take a plea deal. This is in effect a bait and switch type tactic.
4. There is no uniform code or oversight in the plea bargaining process.

These practices need to change. Our court system should be fair, with emphasis placed on seeking the truth and then on rehabilitation if the defendant is truly found guilty. There is a place for plea bargains in Oklahoma’s court system, however, the process needs a complete overhaul for it to work.