November 11, 2018 1:37:46 AM
Isabelle Altman - [email protected]
Starkville resident James Bardwell had a choice.
He could go to trial for sexual battery and two counts of being a convicted felon in possession of a weapon. Or, he could accept a plea agreement from the state to confess to the weapons charges, spend the next 18 years in the Mississippi Department of Corrections and not have to register as a sex offender when released.
Bardwell took the plea deal earlier this month during the most recent term of Oktibbeha County Circuit Court. As a habitual offender, he isn't eligible for parole, meaning he will spend every day of his sentence in prison.
It's a high prison sentence for weapons charges, said District Attorney Scott Colom. But from the prosecutors' standpoint, it made sense. There was plenty of evidence supporting the weapons charges and less supporting the sexual battery charge, which prosecutors felt deserved a significant sentence.
Bardwell, 35, was accused of having sex with a victim younger than 14. However, after a grand jury indicted (formally charged) him, the victim became reluctant to testify -- something Colom stressed is extremely common with victims in sex crimes cases.
"We looked at it and said, 'OK, we can get a significant sentence, 18 years, day for day,'" he said. "That type of reasoning is typically what goes into plea agreements."
Plea agreements occur when a prosecutor makes a defendant a particular offer to incentivize a guilty plea. The state will retire certain charges if the defendant agrees to plead guilty to others, or it may recommend lighter sentences. Often with non-violent cases, defendants may not have to serve prison time at all if they agree to some kind of rehabilitation program.
The deal is always "a better deal than they would get if they proceeded to trial," said Donna Smith, a public defender in Lowndes County.
Plea agreements are an essential part of the criminal justice system, both Colom and Smith said, saving the courts the cost and necessity of a trial in a system that is increasingly bogged down with pending cases.
"There's no way the state could try every case on the docket," Smith said.
Each judge has 20 to 40 cases per day scheduled during a court term, she said. Court terms can be slated for two to three weeks. Each of the four counties in the circuit court district -- Lowndes, Oktibbeha, Clay and Noxubee -- host up to four court terms per year.
"If every one of them wants a trial, we're going to be trying cases for decades," Smith said.
Beyond that, Colom believes it's moral and ethical to offer defendants the chance to confess to their crimes. However, they're not going to do that if they have no incentive.
For example, he said, he has prosecuted and knows of murder cases where the defendant legally deserved the death penalty and instead got life in prison without parole after entering a plea. They would not have done that if they knew they would die anyway, he said -- they'd have "rolled the dice" and gone to trial, where the jury may find them not guilty.
"Going to trial is always a risk, no matter how strong the evidence is," Colom said.
That risk is something Smith said she has in mind when advising clients. She's obligated to take each plea deal to clients, and how she feels about the plea and the state's case will determine whether she proposes they take the offer or go to trial. There have been times, she said, where she suggested they chance a trial.
Other times, she said, the state offers what she calls a "sweetheart of a deal." An example of one such case is when the prosecutors had one of her clients on video with multiple drugs. The client had been charged with three counts of possession of a controlled substance. The state offered to retire two of them, with a sentence of house arrest.
However, Smith stressed, it's always up to the client.
"They tell us what they want to do, not vice-versa," she said.
Working out a deal
A common misconception Smith's clients often have is that they are entitled to three continuances and three plea bargains, and that those bargains become better for the defendant every time a new one is offered.
"I have no idea how that thought came into being," Smith said.
There's no law that says prosecutors have to offer an agreement at all, much less a particular number. When the state does offer multiple plea bargains, they're likely to be harsher for clients the second or third time around, not better.
Plea deals also aren't something defense attorneys come up with, she said. The prosecutors always make the offer.
Colom added there are even unique circumstances where prosecutors don't offer deals at all. His office prosecuted a violent rape case in Starkville about a year ago where they specifically wanted the defendant to stand trial. Still, he said, that's unusual.
A defendant also has the chance to skip the prosecutors and enter an open plea directly to the judge in the hopes the judge will give them a lighter sentence than what was in the prosecution's deal.
"At that point, all we can do ... if the judge wants to hear our perspective, we can tell the judge what we (believe the punishment should be)," Colom said.
Trials likely in violent crimes
In Smith's experience, defendants whose plea agreements include sentences as habitual offenders are less likely to take their deals.
"Nobody wants to spend every day of whatever the maximum sentence is in prison without the possibility of parole," she said. "These are the hardest cases, the habitual offender cases."
Both Colom and Smith said non-violent felonies with shorter sentence times are usually the cases where defendants will accept plea agreements.
Violent crimes come with steeper penalties. For those defendants, even when not sentenced as habitual offenders, they must spend at least half their sentence behind bars before parole is an option. Those convicted of sex crimes, Smith said, aren't eligible for parole at all.
"These types of sentences are not ones people easily accept," Colom said.
"You will see some people pleading on violent crimes only after they see the jury in the box," she said. "... I think they look up and realize, 'There are 12 people that are going to decide my fate.'"