Giving into absurd plea agreements

What do you do when you know you have done something wrong, and you willingly accept that you need to be held accountable, but the authorities want you to agree to something more? What do you do when they want you to agree to inappropriate probation conditions?

 If I present at the emergency room with a severed finger, I will certainly be given attention for that wound.

What if it is the hospital's policy to remove the appendix of everyone that comes into the emergency room. They do it as a preventative measure, just in case you might have gotten appendicitis one day. And, I would have to pay the medical expense for the surgery. In order to receive treatment for my severed finger, I have to also agree to have my appendix removed and pay for it. If I don't, they won't treat my finger and I'll have to find someone else to do it.

And, for the rest of my life, whenever I go swimming and someone sees the scar from the appendix operation, they'll say - oh, you had appendicitis, and I'll have to say, no, I just had it out. And, then, I'll have to explain why so they won't think I'm lying about having appendicitis. After all, people with an healthy appendix don't have it removed, do they?

It's not that the hospital didn't offer to treat my finger. It is just that they added a condition to it that satisfied their agenda, even though it has nothing to do with me.

So, I'm standing in the lobby of the emergency room, with a dripping, bloody rag wrapped around my hand. I'm squeezing a pressure point in my wrist to try to slow down the bleeding. My friend has picked up my finger and stuck it in a cup of ice. We're ready to go.

Do I go ahead and sign the release for the hospital to remove my appendix so that I can get my finger treated, maybe put back on, or do I leave, hoping I can find someone in time who is willing and able to treat my finger and leave my appendix alone?

I get frustrated and angry because it is unfair. I'm trying to do the right thing, and they want more. Fundamentally, that feels unfair.

Now, once I cast something in the role of being unfair, then I must become opposed to it. It seems really stupid to me. But, why? Why does it make me feel that I have to resist?

Deep down inside, I feel pain. I feel fear. It hurts. I have trusted someone and feel betrayed. I feel that someone is trying to take advantage of me, trying to exploit the situation to their advantage. Once the trust is violated, I feel that I am in danger.

I also feel that they are trying to control me for no good reason, when it is just their policy to treat everyone the same way. I resist people trying to control me. I don't want to be controlled by another when there is no good reason for it. I'm scared of that. Especially when giving into the control means doing something that makes no sense. I feel betrayed. So, again, I am back to the trust issue. Someone who wants to have control over a part of me and my life has proven untrustworthy by making unreasonable demands.

If I can't trust the other person, then I have to protect myself from them. My fight or flight mechanism has kicked in. All the danger flags are erupting. For anyone as old as I am, you might be able to see the Robot on lost in space shouting "danger Will Robinson, danger" while its arms and sensors flail and whirl around.

When I'm in danger, I'm no longer reasonable. I can't be. Because I either want to run and hide, to avoid the danger, or if I can't get away, I need to fight the danger - to neutralize the threat, maybe even destroy it if I can.

Anyone who comes along and tries to reason with me about it gets lumped into the danger group. In order to preserve myself I must resist them. My friend, holding the cup of ice with my severed finger in it, who says "just go ahead and do it, what difference does it make" becomes the enemy.

A sense of moral outrage that comes with the absurd unfairness of this condition rises up in me. And, so, I'm back to the anger and resentment, which comes from that sense of fear and mistrust.

What I wish would happen is that the hospital would change its policies. I wish that the hospital would realize that cutting out a healthy appendix for no reason other than it is their policy to do so makes no sense. I wish they could see that blindly following their rule is going to cause me pain, suffering and humiliation that I should not have to endure. Making me do it is inappropriate.

I want them to see me as an individual. I want to be treated as a person. I don't want to be seen as just a set of boxes on a piece of paper that need to be checked off. Yup, there goes another appendix, healthy, but who cares. We followed our protocol. So, we did our job.

I'm told I don't really need my appendix, but is that a sufficient justification to give into the hospital's policy and agree to an invasive procedure that is completely unnecessary?

Yet, does it make me a fool to walk out of the hospital lobby with a bloody stump on my hand just to save my appendix? That seems stupid, too.

So, in the end, I'm angry and resent the hospital for forcing me to make that choice. I'm hurt because I feel they don't see me as an individual with individual needs. I'm scared because they seem unable to treat me for my specific needs. And, I'm also scared because I do have a need that has to be addressed right now.

My only hope is that there is another, more reasonable hospital nearby. But, I don't know if there is. So, in going to look for one, I put my finger at great risk. Is it worth it?

I really don't know. What are your thoughts?

Is there a right or wrong decision here? Is there another way out?


Bob Vogel
Attorney at the Vogel Law Firm
rlvogel@robertvogellaw.com
www.robertvogellaw.com

Plea Offers - Too Good to Turn Down?

My client, we'll call her Sue for our purposes of discussion, was charged in a sale and delivery indictment in a school zone in a neighboring county. She was facing a minimum of 8 years at 100% because of the school zone. She had at least one prior possession charge and the current charge violated her probation, so she was in jail serving out her last sentence. It didn't matter, because she couldn't make bond, anyway. She had two children living with her mother.

The State's case consisted of two, recorded buys. What that means is they send in a undercover person - in this case, a well known drug addict and small time dealer who was familiar with my client and her roommate. Call him Bill.

Bill gets money from the detectives. They give him a cell phone to use. They record the calls he makes. He calls the house where my client lives and makes a deal with someone else to come there and buy a couple of pills. This is recorded. The police pretend to search him to see if he has any pills on him before he goes to the buy location. Supposedly, he does not. But, they let him take a friend in the car with him and they do not search the friend. The do a cursory search of the car.

He goes to the residence. He is wearing a wire (in this case, it is a digital tape recorder). He goes in and supposedly engages in a drug transaction. The voices that are on the recording are his and some third party in the house, not Sue's.

When he reports to the police, he names Sue as one of the people who sold him drugs. He does this again.

Based on that, she is indicted. The State is going to try put her in jail for 8 years on the word of a druggy who benefits from helping the police: he gets charges dropped and he makes some money for himself. The didn't even control the situation. They let an unsearched person go with him in the car.

Several months later, after she has sat in jail, we appear in court. The prosecutor offers to drop the school zone and let her plead to a six year sentence for which she would get probation after serving 30 percent. My client says no.

I'm kind of happy, because I'm ready to try the case. I think the evidence is minimal and that they can't prove beyond a reasonable doubt that my client did anything or participated in anything.

We set the matter for trial. Two months later, we're ready for trial, and the State can't go forward. They come up with some excuse and the judge, over my objection, gives them a continuance. Now, my client's sat for five months. In one more month, the misdemeanor she is charged with is flattened and she could get out, but she can't make bond on the felony.

Never the less, she does not want to plea. I tell the DA we're going to trial. We're going to put them to their proof.

Two months later, after seven months in jail, the DA says to me: "we're having a fire sale, we'll plea Sue's case down to a misdemeanor, one year, time served, probation for a couple of months." Quite a way from 8 years, I think, but I think I can get her an acquittal if we go to trial. Still, it's a good offer.

Sue says no. Silently, I applaud her. She says there is no way she'll plea out to something she didn't do. She knows the proof, we've discussed it, she knows they have very little evidence. And, she knows the guy, and knows him to be a liar and a thief, as well as a drug addict and part time dealer. She says she's bought pills from him in the past.

The DA is visibly upset when I refuse on behalf of my client.

"That's a great offer," he says.

"I know, but she's innocent."

"Alright."

"Let's go to trial."

The next trial date is three months out. I go and see her in jail to tell her about it.

She's really mad and justifiably so. She'll have sat for almost a year by the time her case goes to trial for a crime the state can't prove.

She decides to take the misdemeanor plea, we get it with no probation. Why?

The DA knows he can't prove his case. Why doesn't he dismiss the case? I don't know. There is certainly the influence of local law enforcement. They think every arrest is a good one and people ought to be going to jail. Political pressure is put on the DA to get a conviction on every case.

Since their officers can't admit a mistake, neither can they. So, its either lose a case or dispose of it for something, anything, and get a conviction. Conviction it is.

It was impossible for Sue to say no. The offer was too good. She could get out of jail that day. She could go home to her kids after about 9 or 10 months. Or, she could wait another couple of months for a trial (there is essentially no speedy trial clock in TN. It is not statutory, so it is whatever a judge says it is as long as it's not unreasonable.) 

The offer was too good for Sue to turn down. I can't tell you how much I see this. When people are in jail, when they want to go home, the nobility of insisting on a trial fades away to more practical concerns. The State knows this, and they will continue to run this game until we can figure out  a way to get our client's out of jail on a reasonable bond - which is also a problem.

I would rather take a case to trial. I trust a jury. I believe in 12 citizens. They may start out in the wrong place - most people think that if you got arrested there must be something going on. But, even with that consideration to overcome in voir dire, I like juries. My clients are scared. And when they see a carrot in front of them, are more likely to take it.

I don't know what the happy compromise is. So, for me, for now, I'll just keep trying case and beat the State every chance I get. It is the best thing for me to do for my clients.

Bob Vogel
rlvogel@robertvogellaw.com
www.robertvogellaw.com

What's New at TLC: 4-0 for NOT GUILTY verdicts since graduating from ...

What's New at TLC: 4-0 for NOT GUILTY verdicts since graduating from ...: TLC Grad Bob Vogel (July '13) writes the following.  Congratulations to you Bob, and to your client.  He was very fortunate to have you...

Please click on the link above to review the article on the TLC website.

Bob Vogel: rlvogel@robertvogellaw.com