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'Plead to the Lead'

Prisoners who have been sentenced are led to a bus to take them back to jail, following a morning in court.

Roughly four years ago, a “No Deals” policy used among prosecutors in an urban county in Tennessee caught the attention of Andrew Thomas, a tough-on-crime Republican who was campaigning to become Maricopa County attorney.
The policy was intended to end the practice of offering plea deals to suspects facing trial on violent felony charges in Shelby County, Tenn., which encompasses Memphis. The strategy was to require prosecutors to seek the maximum penalty by obtaining a guilty plea to the top charge or by taking the case to court.
After Thomas took office in 2005, one of his first orders of business was to institute a similar policy regarding the prosecution of serious felonies in Maricopa County. He devised the name “Plead to the Lead” after a visit to Shelby County to study the methodology.
The directive was outlined in the office’s Prosecution Policies and Procedures manual for deputy prosecutors. The directive forbids plea bargaining that eliminates leading charges such as murder, sex-trafficking, drive-by shootings, weapons misconduct and other violent assaults — the gravest of offenses. The policy was amended twice in 2006 to include sex offenders and to require second-time felony offenders to agree to pleas that require at least some prison time if they want to avoid trial on the highest charge.
“We’ve done it in phases and allowed the system to adjust and the sky hasn’t fallen,” Thomas said, noting that deputy prosecutors are permitted to seek deviations from the policy, but by design that is rare. “We are hammering the criminals that deserve to be hammered.”
Thomas’ unyielding approach to prosecuting dangerous criminals has been touted as a successful crime-fighting strategy by current and former law enforcement officials, including Maricopa County Sheriff Joe Arpaio and Rep. Russell Pearce, R-Mesa. Thomas bills it as a deterrent that keeps would-be criminals honest because they know they would otherwise face the stiffest penalties under the law.
At the same time, though, it has caused a host of problems, according to interviews with a former top prosecutor in Maricopa County, public and private defense attorneys and former judges, as well as former prosecutors under Thomas who declined to speak publicly because they are still working in Arizona as attorneys.
Opponents said the policy has robbed deputy county prosecutors of the flexibility to exercise their judgment and sacrifices their discretion. More criminal cases are going to trial, bogging down courts already straining under heavy caseloads. And in many cases, they believe, the policy is directly causing the release through dismissal or acquittal of dangerous defendants who otherwise might have served time in jail after pleading guilty to lesser charges.
Former Maricopa County Attorney Rick Romley, a Republican who has openly endorsed Thomas’ Democratic challenger Tim Nelson, said the "Plead to the Lead" policy is solid in theory. But problems arise, he said, when the mandate is put into practice without regard to the specific circumstances of each case.
Maricopa County Superior Court is strained by tens of thousands of criminal cases each year, which creates a natural need to move cases quickly. But the demand for timeliness can carry a cost in terms of meting out punishment, Romley said.
For example, a defendant accused of sexual assault facing a 20-year sentence in prison can be offered a 10-year sentence for attempted sexual assault. The trade-off isn’t ideal, but the point is to create the incentive to avoid trial where cases against defendants tend to wither over time, Romley said.
“We have a saying among prosecutors; the strongest your case will ever be is in the beginning,” he said. “It gets weaker as time goes by.
“A defense attorney gets in there and creates holes with your witnesses or challenges your search warrant and things like that. Rarely does it get stronger. That’s just the reality of the system.”
Thomas has rejected criticism of the plead-to-the-lead policy as campaign-season fodder for Nelson and other political opponents such as local defense attorneys who have contributed to Nelson’s campaign.
Their shared goal, said Thomas, is to wipe out the policy in order to allow defense attorneys to regain influence within the County Attorney’s Office.
“He just wants to repeal my plead-to-the-lead policy, not because we’re losing cases — we have a 93 percent conviction rate — he just wants to let a thousand flowers bloom and let every prosecutor cut his own deal, and that’s wrong,” Thomas said during a late-September debate with Nelson on the topic of domestic violence. “That’s going to be damaging to public safety.”
Thomas’ 93-percent figure also includes cases that ended in convictions achieved through plea bargains.
After Nelson won the September primary election, Thomas said those supporting Nelson included “lawyers of murderers, polluters, rapists, molesters and white collar criminals.”
Nelson in turn has launched an assault against Thomas and the policy, which he has attributed to a declining rate of trial convictions that has culminated with almost one out of every three trials resulting in acquittals.
Nelson said the policy burdens courts by forcing prosecutors to seek convictions on leading charges that they might not be able to prove.
“My policy is if you can prove your charge then the defendant has to plead guilty to that charge or you don’t do a plea bargain,” Nelson said during a debate. “But if you can’t prove that charge or the evidence isn’t there, then you plea bargain to something you can prove and then you get that case out of the system. There is no sense going to trial on a case you can’t prove.”
On Oct. 8, Nelson’s campaign claimed the Maricopa County Attorney’s Office is “losing criminal trials at an alarming rate that has jumped dramatically since Andrew Thomas took office.”
The numbers
The Arizona Capitol Times analyzed dozens of pages of documents kept by the Arizona Supreme Court and Maricopa County Superior Court to record the number of trials, conviction rates and dismissal/acquittal rates in felony cases.
But drawing an exact conclusion to the effects of Thomas’ policy on acquittal rates at trial is still difficult because the court records appear to yield varying results.
For 2008, the Arizona Supreme Court statistics indicate that 176 of 942 felonies cases taken to trial resulted in an acquittal. The rate, 18.6 percent, is the record high of Thomas’ tenure, but it is virtually identical to the 18.5 percent acquittal rate racked up by Romley’s prosecutors in 2002.
Based on Maricopa County Superior Court statistics produced by a records request from Nelson’s campaign, the Democrat challenger claimed trial acquittal rates for defendants arraigned on felony charges in 2007 reached a “shocking” 28.9 percent — a leap from 16.5 percent in 2004, the last year under Romley.
The Superior Court statistics reflect total felony trials, acquittals, guilty verdicts and guilty verdicts of defendants yet to be sentenced. The results mimic rising acquittal rates found in records held by three county public defense agencies, said Nelson.
But to make a clear examination even more convoluted, following Nelson
’s claim, the Maricopa County Attorney’s Office released its own acquittal rate stemming from jury trials.
Since Thomas’ tenure began in 2005, defendants have been acquitted, on average, at a rate of 18.7 percent, according to the office.
But lost somewhere in the campaign battle waged against Nelson and his support from many criminal defense attorneys is the fact that the adversarial prosecutor/defender relationship is not inherently one of bad blood, said a prominent local attorney who is supporting Nelson.
“He (Thomas) knows or should know that no defense lawyer is opposed to a hard-lined prosecutor as long as they are honest, intelligent, and committed to doing justice,” said Jim Belanger, president of the Arizona Attorneys for Criminal Justice.
Belanger, and several other attorneys and court observers, warned that other factors can and do contribute to criminal case statistics as much or more than Thomas’ Plead to the Lead policy.
Mandatory sentencing laws, said Belanger, play a large role in defendants’ decision to accept plea agreements or go to trial. Generally, cases that go to trial represent a small fraction of all felony prosecutions, he said.
But without a doubt, the policy has palpable effects. Even “excellent” senior prosecutors are treated “like children” under the top-down command, he said, adding that he believed prosecutors are becoming overworked and less prepared at trial as a result of the policy.
“I don’t know how many times, in my own cases, where I have had a conversation with an assistant county attorney and they know what they’re doing is unreasonable,” he said. “But they are being told from the top that they can’t do anything else.”
And without a doubt, Thomas has aroused displeasure of public and private defense attorneys alike. Many of whom, publicly or privately, accuse the county attorney of making decisions out of political expediency.
Hard time all the time
Bob McWhirter, a fervent Thomas critic and defense attorney with the Maricopa Legal Defender’s Office, flatly rejects the policy as “dumb,” and said it disregards the fact that cases and defendants’ circumstances are often unique.
“There are people who need to go to prison, and they need to go to prison for a long time,” he said. “You need to distinguish those people from others that you might have a better way of dealing with. Some people can have diversion, or less time or intensive probation.”
As a defense attorney, McWhirter said he frequently “looks at evil,” but he also said the charges a defendant faces are sometimes false indicators of personality and whether a suspect is likely to repeat an offense.
“I represented people accused of misdemeanors who I thought were pathological whack-jobs,” he said. “And I’ve represented people accused of murder that I wouldn’t give a second thought to having over for dinner.”
Like many, McWhirter believes the office is frequently overcharging defendants and forcing prosecutors to court and to gamble on a conviction.
One such case immediately comes to McWhirter’s mind: In 2007, he was assigned to defend Ventura Camacho, an illegal immigrant who was charged with aggravated assault of a minor with a dangerous instrument and resisting arrest.
Camacho allegedly struck a 5-year-old child in the head with a can of beer; opening a significant horseshoe-sized wound that required seven staples to close. A police report states the weapon was a bottle, but McWhirter claims the arresting officer misunderstood the word “bote,” a Mexican slang term for a can, as “botella,” the proper Spanish term for bottle.
Witnesses of the attack alleged Camacho appeared intoxicated, and arresting officers later found beer cans scattered throughout his kitchen and yard.
Under the policy, McWhirter said Camacho was offered what he believed to be a severe and grossly disproportionate offer by the Maricopa County Attorney’s Office: plead guilty to the assault charge, a class 2 felony, and face a minimum of 10 years in prison.
“I thought 10 years was too much,” he said, explaining Camacho had no criminal record and he believed such a penalty would ruin the entire life of a man accused of a single, violent act while drunk.
McWhirter and his client rejected the offer, choosing instead to take their chances in court. On the day of trial, the child victim and his mother were nowhere to be seen, and the case against Camacho was dismissed. The child also was believed to be an illegal immigrant.
Claiming professional constraints, the attorney was reluctant to openly discuss the likelihood of his former client’s guilt, what he would consider an appropriate sentence or whether he believed Thomas’ unbending policy caused a violent assault on a child to go unpunished.
“From the victim’s point of view, this is a travesty,” McWhirter said.
Ronald Reinstein, a former Maricopa County deputy prosecutor and Superior C ourt judge, said restrictive prosecutorial policies remain a major point of discussion among the legal community.
The birth of similar policies began in the county decades ago to help align new prosecutors in the Maricopa County Attorney’s Office. The rise in the number of deputies was made necessary by a quickly rising population, said Reinstein, who headed the county’s sex crimes unit for six of his 12 years with the office.
“I don’t have a problem with generalized policies as a guide, but when it becomes rigid and the individual prosecutors, even experienced ones, can’t apply their own professional judgment on the cases they’re handling, then I think it becomes more problematic,” he said.
While the “grumbling” of defense attorneys is audible, it is loudest among individual deputy prosecutors, said Reinstein, dubbing prosecutors under Thomas the “silent majority.”
“When you’re a prosecutor, I think the most important thing you want to do is justice, one way or another,” Reinstein said. “Sometimes justice means putting someone away for as long as possible. At other times it might mean giving somebody another chance.”
Still, Romley said the relationship between county prosecutors and defense attorneys can be rocky. He said he instituted his own rules that chagrined defense attorneys during his tenure.
“We had a lot of policies, and the defense bar wasn’t pleased with my policies as well,” said Romley.
The rules, he said, were aimed at taking a tougher approach to a growing trend of drive-by shootings, displays of weapons while driving and people “basically pulling out a gun every time they got upset.”
As in Maricopa County, the No Deal rule instituted in Shelby also was aimed at curtailing gang crime in the late 1990s, according to newspapers and online publications in Tennessee. Once-peaceful Memphis had attracted an estimated 10,000 gang members by 1997, according to the Memphis Flyer.
Public support
In Arizona, residents have shown support for tough-on-crime policies enacted by Arpaio and Thomas, who work together to investigate crimes, arrest suspects and prosecute criminals in Maricopa County. Arpaio, in particular, is one of the most well-known sheriffs in the United States and has won nine straight elections (including primaries) since 1992.
In early October, Thomas appeared at a press conference with several grieving family members of homicide victims to decry Nelson as a liberal former defense attorney who is not interested in avenging crime victims.
“Andrew Thomas put the brakes on what victims fear most — plea bargains,” said Duane Lynn, whose wife, Nila Ruth, was shot to death by an irate residen
t at a Peoria-area homeowners’ association meeting in 2000.
On the campaign trail, Thomas has remained defiant in defending the policy against attacks by Nelson. And in fact, he’s gone on the attack, saying Nelson, who once served as an attorney for Gov. Janet Napolitano, is soft on crime.
“The only people I hear complaining about it are defense attorneys because they don’t want to go to trial, and some of the judges that don’t like having the trial either,” Thomas said. “I’m sorry to inconvenience them, but this is what the public wants. I think it’s what the Legislature intended when they wrote a criminal code with such stiff sentences. They didn’t want prosecutors to plead down to a small fraction of the standard sentence. They want these people off the streets so they can’t victimize others.”
And standing up for victims is something Thomas has repeatedly said Nelson will not do. He says that his Democratic challenger has worked as a “liberal” defense attorney and even helped a convicted murderer try to appeal a death sentence.
But even in Shelby County, prosecutors were forced to find a middle ground between a hardheaded pursuit of justice and offering light sentences to dangerous criminals.
In April 2007, Shelby County prosecutors approved a plea arrangement for Dale Mardis after coming to the conclusion that they would not be able to prove he committed the premeditated murder of code enforcement officer Mickey Wright.
Mardis faced first-degree murder charges that could have resulted in his execution. But at trial, prosecutors feared the man could have received less time in prison or perhaps no time at all. As part of Mardis’ plea deal, which sent him to prison for 15 years without the possibility of parole, he agreed to lead officials to Wright’s body.
Shelby County prosecutor Bill Gibbons wrote a letter to the public after deciding to seek a lesser charge against Mardis, saying it is unethical to prosecute a charge when the prosecutor knows it’s not supported by the evidence.
“I regret that we were unable to convince the Wright family that our decision was the correct one,” Gibbons wrote. “We care about victims and their families and hope they agree with our decisions, but sometimes they prefer an outcome that we cannot ethically achieve.”

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