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
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