A plea bargain, also called a plea deal, or even copping a plea, is an agreement between the prosecutor and a criminal defendant where the defendant agrees to plead guilty to the charge, or to a lesser charge, in exchange for dropping or reducing some of the charges if there are more than one, and for a more lenient punishment or some other concessions.

According to the FBI’s annual report, there were almost 1.2 million violent crimes committed in the United States in 2016.  This number does not include non-violent crimes.  Imagine how long it would take if each and every one of the individuals charged with a crime decided that they wanted “their day in court” and insisted on a trial.

For just the crimes committed in 2016, with the current number of judges and courtrooms available across the United States, and with the current number of prosecutors, a conservative guess is that by the end of 2029 we might see all of the cases adjudicated.

Plea bargains make the criminal justice system work, at least palatably.

Anyone who has ever watched any courtroom television show knows what plea deals are and why these deals are important.

Year in, year out, approximately 97 percent of federal cases and 94 percent of state cases end in plea bargains.  Courtroom criminal trials, filled with the drama so often seen on television, rarely, if ever, take place.

The primary justification for plea-bargaining is to assist a burdened and overcrowded system, allowing for the efficient resolution of most criminal matters.

Deals are sometimes made because of lack of evidence, because of information the defendant has that can help police, and because of a defendant’s fear of consequences for a conviction of the charged offense.

Sometimes there are curve balls.

Imagine that you are charged with an offense, and your attorney “makes a deal” with you and the prosecutor.  You will have some measure of relief, as you now know that your punishment will be less than it might have been, and your criminal record will also not be as serious.  Perhaps even, at the end, because of the deal, you will have no criminal record.

But your lawyer tells you that the deal is not guaranteed.  The judge may or may not accept the deal. But “don’t worry” says you attorney, “the judge almost always accepts the deal.”  In fact, once a judge accepts a defendant’s plea and enters a conviction, the judge then later cannot overturn the plea agreement.

Further, judges will tell the parties in advance, before a plea is taken in open court, if the proposed deal is not going to be accepted, allowing both the prosecutor and the defendant to re-think the deal, and perhaps fashion another.

So in the vernacular of baseball, recently there was a real curve ball thrown at a Canadian woman.

Imagine the angst of Olga Maria Nixon, a 57-year-old Canadian woman who thought she had a plea deal in place after negotiations between her attorney and the prosecutor.  No mind is made here that this was in Canada.  The legal system in Canada is similar enough to that here in the United States.

Nixon’s lawyer told her we have a deal, and that the judge almost always accepts.

Then, the prosecutor’s office changed its mind.  No deal.

Nixon, and her lawyer, were stunned.  The lawyer insisted that trust with the prosecutor’s office was dead.  How could any lawyer now move forward making deals with them?  It is of critical importance that deals are honored.

Nixon drove her motor home through an intersection in a town outside of Edmonton.  She struck a small car, and the man and his wife inside died, and their child was injured.

Nixon was charged with multiple charges drunk driving charges.  The prosecutor had doubts about some of the evidence, in particular, the admissibility of the breathalyzer results, and moreover the testimony of a witness about Nixon’s prior erratic driving.  So a deal was struck.  Nixon would plead guilty to lesser charges not involving drunk driving, and she’d pay a fine of $1800.00.

A senior prosecutor reviewed the evidence and felt the case against Nixon was stronger, and thus reneged on the deal and withdraw the plea bargain already accepted.  The prosecutor decided to take Ms. Nixon to trial and let the cookies fall where they may.

Nixon appealed this action by the prosecutor’s office, claiming it was an abuse of “process” and a violation of her constitutional rights.

Canada’s Court of Appeal (Alberta) and then the Supreme Court of Canada disagreed, and found that there was no unfairness, and that the prosecution’s change-of-mind decision was not tainted by bad faith or improper motive.

They ruled that a prosecutor’s office, despite making a deal, has broad discretion to review and even reverse it’s lawyers’ calls on a case.

Canada’s high court: in the absence of any prosecutorial misconduct, improper motive or bad faith in the approach, circumstances, or ultimate decision to repudiate the plea bargain, the decision to proceed with the prosecution is the prosecution’s alone to make.

To plea or not to plea — obviously it is much easier not to commit the crime.

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