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Tuesday, July 26, 2016

Texas Judge: No Plea Bargains "Involving" Probation for More Crimes than You May Realize

The title of this post admittedly involves a bit of a paraphrasing, but not much. The Wall Street Journal Law Blog has this post on a Texas judge who has banned plea bargains for probation or deferred adjudication for defendants charged with assault on a peace officer, resisting arrest, evading arrest, and other crimes in which members of law enforcement are "threatened."  Here is Judge Kerry Neves's Facebook post announcing the order.  In full, it reads:

I have just signed an Order which goes into effect immediately in this Court. No plea bargain agreements for deferred adjudication or probation involving Assault on a Public Servant, Evading Arrest, Resisting Arrest or any other offense in which a member of Law Enforcement is threatened or placed in danger will be approved. In the event the State and the defense attorney believe there is compelling evidence to support such an agreement, the Court may consider it if presented with such evidence. Approval will require a sincere written statement of apology to the officer or officers involved, and agreement from the officer or officers involved to the plea bargain agreement. Prior criminal history will paly a big role in whether any such agreement is approved. 
If approved, the defendant will be required to read the statement in open Court. 
I may only be one person, one Judge, but I will do what I can to stop the disrespect and aggressive behavior against our police officers. If you are an officer, spouse of an officer or know an officer, make sure they know of this change in my Court.
The Wall Street Journal Law Blog notes that while the policy has drawn criticism from the criminal defense bar, the practice of plea bargaining takes place in a generally unregulated area of constitutional law and criminal procedure:

Plea bargaining is a ubiquitous feature of the American criminal justice system, but there’s no constitutional right to a plea offer. 
The right to a fair trial and effective counsel provide protections for defendants to ensure they have the capacity to engage in informed negotiations. And federal criminal procedure standards and local statutes set basic ground rules, but plea bargaining in the United States “is in critical respects unregulated,” according to University of Virginia criminal law professor Darryl K. Brown.
Through the ABA Journal, I was able to track down a copy of the order. As it turns out, the prohibition on plea bargaining is far broader than Judge Neves's Facebook post suggests. The order prohibits plea agreements "involving probation or deferred adjudication" for the following crimes:

  1. Assault of a Public Servant
  2. Evading Arrest or Detention
  3. Failure to Identify
  4. Resisting Arrest, Search or Transportation
  5. Hindering Apprehension or Prosecution
  6. Escape
  7. Permitting or Facilitating Escape
  8. Prohibited Substances and Items in Correctional Facility
  9. Contraband in Correctional Facility
  10. Taking or Attempting to Take Weapon from Peace Officer, Federal Special Investigator, Employee or Official of Correctional Facility, Parole Officer, Community Supervision and Corrections Department Officer, or Commissioned Security Officer
  11. Interference with Public Duties
  12. Interference with Police Service Animals
  13. Any other offense in which a member of law enforcement is threatened, harmed, placed in danger or otherwise verbally or physically abused because of his or her status as a member of law enforcement.

I think that this order is misguided.

Off the bat, this strikes me as an overly partisan and political move. Texas has partisan elections for judges and, as it turns out, Judge Neves is up for reelection this November. Here is a link to his campaign website if you would like to know more about him or perhaps donate.

By announcing the order on Facebook in the run up to the election, this order appears to be less focused on good law and more focused on the politics of capitalizing on recent shootings of police officers in Texas.

Normally, I avoid the political criticism on this blog, but just reread the last paragraph of his Facebook post:

I may only be one person, one Judge, but I will do what I can to stop the disrespect and aggressive behavior against our police officers. If you are an officer, spouse of an officer or know an officer, make sure they know of this change in my Court.
Okay, okay. I'll get off my political soapbox.

And onto my legal one...

First, while the order covers the vaguely defined category of any crime in which "a member of law enforcement is threatened, harmed, placed in danger," not all of the crimes covered by the order involve this sort of behavior. Crimes of prohibited substances and items in a correctional facility may occasionally include prohibited weapons, but they often involve other forms of contraband such as drugs. Indeed, this 2014 Texas Tribune report notes that the most commonly investigated contraband cases between 2009 and 2013 involved cell phones. Judge Neves does not mention this crime in his Facebook post, and those reporting on the order tend to focus on the post and overlook the fact that this crime is covered by the order (see, e.g., here, here, and here). By publicizing a limited paraphrasing of the order on Facebook in a limited fashion, Judge Neves has asserted control over a wide range of cases, yet evaded coverage of the full scope of the order.

Second, as for resisting arrest or evading arrest, crimes which Judge Neves mentioned in the Facebook post, a blanket ban on plea bargains "involving" probation for these crimes is impractical. Texas Penal Code section 38-03 defines resisting arrest as:
(a) A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer's presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.

(b) It is no defense to prosecution under this section that the arrest or search was unlawful.
And evading arrest, under Texas Penal Code Section 38-04 is:
(a) A person commits an offense if he intentionally flees from a person he knows is a peace officer or federal special investigator attempting lawfully to arrest or detain him.
Oh, the order also covers Texas Penal Code section 38-02, failure to identify:
(a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.

(b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:

(1) lawfully arrested the person;

(2) lawfully detained the person;  or

(3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.
Harrowing stuff.

So people who run from the police during or after the commission of a crime (no matter how petty), and people who "use force" (of an undefined degree) against police officers during an arrest or stop -- even if that arrest or stop is unlawful -- are prohibited from entering into a plea bargain "involving" probation. As are people who give a false name to officers once arrested or detained. In general, I suspect that much of the activity covered by these statutes will be petty -- hardly the stuff of national news. But the taglines of these criminal laws, "resisting arrest" and "evading arrest," are easy to connect to the broader notion of crimes against police, including the egregious crimes Texas and other states have recently witnessed.

You'll notice that I have kept putting "involving" in quotes. That's because I don't know what that word means. The order covers "plea bargain agreements involving probation or deferred adjudication." This appears to mean that probation is not an option even if an agreed-upon plea includes jail time. Instead, a defendant charged with any of the covered crimes apparently needs to be sentenced to a set jail or prison term.

This, interestingly, may not be that great for law enforcement. If Texas criminal prosecution is anything like what I have seen in California, a defendant charged with misdemeanor resisting or evading arrest may be sentenced to a term of informal probation, but with search and seizure terms. This means that for the term of probation, officers may seize or search that defendant without suspicion so long as they know that the defendant is on probation with search and seizure terms. This can be a very useful tool for criminal investigations down the road. This useful tool, however, will likely be unavailable in many cases due to this order, as such an agreement would "involve" probation.

The order does note that sometimes plea bargains will be permitted:
The Court will consider, but is not obligated to accept, any plea bargain agreement in which the State and the defense can present compelling evidence to support such an agreement. Such compelling evidence may include a written statement from the officer or all officers involved that he or she or they agree to the plea bargain agreement. In the absence of such a written statement, the Assistant District Attorney assigned to the case MUST inform the Court that he or she has permission from the officer or all officers involved to represent to the Court that such officer or officers approves of the plea bargain agreement.
So not only does the order require a defendant to write a statement apologizing to the officer(s), the prosecutor is required to obtain written authorization for the plea from the officers or to represent to the Court that the officers approve of the plea agreement. Again, the word "involved" rears its ugly head -- do all officers on scene need to approve? Just the officer who was threatened? In the event of contraband found during a search of a cell would this be the officer conducting the search? Would it also apply to any officer supervising the searches? In the event of escape, is it every officer at the detention facility?

All of these questions present headaches not just for the defendant, but for the prosecutor, who now -- in addition to filing charges, overseeing the various stages of criminal prosecution, and trying criminal cases -- must obtain approval from police officers in order to settle a resisting or evading arrest case.

A prosecutor may begin to think that it might just be easier not to file the charges in the first place...

In short, I do not like this order. It is presented in an overly-simplified manner and is a blatant attempt to score political points. Its vague and sweeping language covers numerous crimes and removes a great deal of discretion from prosecutors -- discretion that is often required to resolve a case in a just manner. The buzzwords of "resisting arrest" and "evading arrest," mean a great deal of petty conduct will be met with unwarranted harshness, but the policy will still sound so good.

Judge Neves's broad order may score political points. But such a vague and sweeping order has a host of negative consequences which, ironically, include the likely under-prosecution of the covered offenses.

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