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Thread: FBI agent ND while dancing

  1. #241
    Site Supporter Sensei's Avatar
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    A good read on the phenomenon of overcharging:

    https://www.washingtonpost.com/opini...=.5121e4054bf8

    We have effectively weaponized Title 18 so that everyone is a criminal and the State can use prosecutorial discretion to target its enemies.
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  2. #242
    Member Trooper224's Avatar
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    Jan 2014
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    Quote Originally Posted by ssb View Post
    I don't know that that's as effective of a tactic as it would initially seem.

    As an example, let's say I've got a guy I'd like to put in jail because... well, he's on my shit list. Police pull him over, find two grams of meth in two one-gram bags (>.5 grams is, by statute, seen as for resale in my state) and a scale in the car and $240 in his wallet. I indict him on the B Felony intent to resell charge (depending on the officer and their experience/care, he may well be originally charged as such) rather than the A Misdemeanor simple possession charge. He technically fits the resale statute because of the amount, and the separate bags, the money, and the scale are in theory indicia of resale so I have probable cause (ethical/professional responsibility) to do it.

    The reality of that situation is that any defense attorney is going to look at that, laugh, and tell me to give them a misdemeanor or give them a trial date, because unless I get the world's most prosecution-friendly jury and the defense attorney phones it in that day, all I've got is a casual user who -- like apparently everybody who gets pulled over with drugs nowadays -- wants to make sure their dealer didn't screw them and who cashed their paycheck that afternoon. That misdemeanor plea will probably be on their terms as well unless the guy is a complete bag of shit or I've got something else up my sleeve, because I lost credibility with that indictment and they have the leverage of a right to a jury trial.

    Now, prosecution is all about leverage -- that I don't dispute at all. Likewise, I don't dispute the motivation to settle things early and often (or the reality that we do that) when we've got a couple hundred case files on our desk. There's a lot that goes into that situation, and yes, some of it is our fault. However, when it comes to pleas, I am not of the opinion -- and it absolutely hasn't been my experience -- that charging bullshit to get a solid lesser is the way to get that leverage.
    I don't think it's an effective tactic, or moral, or ethical. The prevailing attitude seems to be "let's make a deal" and that seems to be primarily used as a means to avoid court time. If the defendant is told, "we'll drop these six charges and only stick you with these two" then they'll assume they're getting off lightly and just plead guilty. I've seen this throughout my career, in the smallest rural courts to the largest district in the state where I now work. Many times it seems as if they'll willingly plead down a homicide to a seat belt violation, just to be rid of it. I'm glad I'm almost out of the game.
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