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Bar News - July 8, 2005


Plea-Bargaining — When Deal Making Turns To Deal Breaking

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The back and forth that occurs between prosecutors and defense attorneys during plea negotiations in criminal cases can be dynamic, interesting and result in dispositions that are meaningful to both the defendant and the state. There is great value in the professional relationships that inevitably grow out of spending time in our district and superior courts with members of both the prosecution and defense bars. Valuable knowledge is shared among attorneys, reputations are built and, not infrequently, justice is truly served.

In a recent meeting of the Professionalism Committee, concerns surfaced that, in certain areas of the state, attorneys are disavowing agreements reached following plea-bargaining — an issue of acute importance in light of the increasing number of criminal cases initiated in the district and superior court systems each year. In light of this concern, it is worth remembering the critical role that plea-bargaining plays in the criminal justice system. Upending the negotiated disposition of criminal cases at the time of sentencing is unfair to defendants, destructive to the process and flies in the face of a standard of professionalism that had been long established in courts throughout the state.

The United States Supreme Court dealt with these issues over three decades ago in Santobello v. New York, 404 U.S. 257 (1971). In that case, a prosecutor and defense attorney agreed to resolve gambling charges in a way that permitted the defendant to plead guilty to a lesser charge with a maximum penalty of one year in jail. In return, the State promised not to recommend a specific period of incarceration at the sentencing hearing. The defendant entered a guilty plea based on this understanding. There was a delay, however, between the plea hearing and the sentencing hearing and a new prosecutor was assigned in the interim. At the sentencing hearing, the new prosecutor stated that he knew nothing of the original agreement and argued that the court should impose the maximum sentence of one year in prison. The court sentenced the defendant to a term of one year, stand committed. The defendant ultimately appealed to the Supreme Court to determine whether the state’s failure to keep its commitment to the sentence recommendation required a new trial.

In vacating the judgment and remanding the case, the Court took the opportunity to observe the importance of the plea-bargaining function to our justice system and set a standard for prosecutors and defense attorneys to follow. The Court described plea-bargaining as an "essential" and "highly desirable" part of the process and generated a laundry list of benefits attributable to reaching compromise in criminal cases. Specifically, the Court explained the enormous strain on judicial and human resources if more cases were to proceed to trial, the value of speed and finality to the system, the benefit to defendants that do not have to sit "idle" in jail prior to trial, the impact on public safety because defendants that face jail time are promptly sentenced avoiding the possibility of pre-trial release, and the enhanced potential for rehabilitation as criminal consequences are imposed close in time to criminal conduct.

After extolling these benefits, the Court held that plea agreements may be enforceable and ruled that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." The New Hampshire Supreme Court has repeatedly cited this standard when assessing issues related to the enforceability of plea agreements between defendants and the State. See State v. Little, 138 N.H. 657, 660 (1994); State v. O’Leary, 128 N.H. 661, 665 (1986); State v. Goodrich, 116 N.H. 477, 478-79 (1976).

In New Hampshire, the strains of increased caseloads no doubt explain many misunderstandings that occur in the context of plea negotiations. Cf. Santobello, 404 U.S. at 260 (sympathizing with "the enormous increase in the workload of the often understaffed prosecutors offices"). An ever-increasing number of criminal cases are initiated each year in our district and superior court systems. According to the New Hampshire Supreme Court’s annual report on the judicial branch, over 14,500 criminal cases were filed in Superior Court and 144,246 criminal cases were filed in District Court in fiscal year 2004. ( See 2003-2004 State of New Hampshire Judicial Branch Rep. at 8-9.) Both numbers represent significant increases over the previous fiscal year. With a striking number of cases working their way through the system, the risk of miscommunication between prosecutors in the same office is very real. Moreover, it is entirely possible for both the defense attorney and prosecutor to forget key components of agreements that are often made in the hallways of our busy district courthouses. Taking simple steps to memorialize these understandings, in writing, reduces the risk for these miscommunications.

No matter how full the criminal docket becomes, the rights of defendants, the safety of our residents and the integrity of the criminal justice system often depend on the ability of prosecutors and defense attorneys to negotiate in good faith. A lawyer’s reputation may be made or broken on his or her ability to be honest, forthright and clear when making agreements. Let us take care to ensure that the high standard of professionalism that is so important to the practice of law in this state does not begin to erode because agreements are broken.

James D. Rosenberg is an attorney with Shaheen & Gordon PA in Concord and a member of the NHBA Professionalism Committee.

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