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View Full Version : Do plea bargains indirectly promote gun control?


Jim40
02-07-2009, 4:56 PM
Gun rights advocates frequently say that governments should enforce the myriad of existing gun laws instead of creating new ones. That makes sense to me.

Sometimes I suspect that big-city District Attorneys agree to plea bargain agreements in which criminals aren’t punished for violations of existing gun control laws.

Does anyone think that’s a problem, or is my tin hat on too tight?

(What I’m getting at is that if there were fewer armed criminals on the streets, the public would probably be less willing to give up their gun rights.)

CCWFacts
02-07-2009, 5:09 PM
Of course. Plea bargaining encourages DAs to pile on charges so they can negotiate them down. In turn, DAs have pressed legislators to give them a lot of add-ons they can work with. That's exactly the motive for a lot of gun laws.

It's already illegal to posses and unreg'd AW. Why then is there a separate charge for transporting it? It's an add-on. "We've got a felony on the possession, a felony because you had it in the car while you were driving, a felony because you made it... Ok, let's make a deal, we'll keep only the possession charge."

Jim40
02-07-2009, 5:27 PM
I think that a news reporter would love to have a story along the lines of:

"In (say) 80% of the cases of armed robbery last year, the DA did not choose to prosecute the violation of California gun laws which would have resulted in mandatory prison time."

Even if MSM reporter liked gun control, maybe that kind of story would be juicy enough to get on the air. And stories like that would help the public understand that more gun laws aren't needed.

Any ideas on how to research in, say, San Francisco, what the original charges were vs. what was included in the plea bargains? I'd spend some time to see whether there's a story there, and if there is, see if a reporter would be interested in having the basis for a good story delivered to him "all tied up with a red ribbon."

berto
02-07-2009, 9:32 PM
Any ideas on how to research in, say, San Francisco, what the original charges were vs. what was included in the plea bargains? I'd spend some time to see whether there's a story there, and if there is, see if a reporter would be interested in having the basis for a good story delivered to him "all tied up with a red ribbon."

SF turned many felon in possession cases over to the feds because the mandatory fed sentence is stiffer than the SF DA is willing to prosecute on her own.

Turning the cases over to the feds allows her to trumpet taking bad guys off the street while also allowing her political cover for punishing the long rap sheeted "good kid who made a few mistakes but is turning his life around" set of her constituents.

bwiese
02-07-2009, 10:09 PM
SF turned many felon in possession cases over to the feds because the mandatory fed sentence is stiffer than the SF DA is willing to prosecute on her own.

Turning the cases over to the feds allows her to trumpet taking bad guys off the street while also allowing her political cover for punishing the long rap sheeted "good kid who made a few mistakes but is turning his life around" set of her constituents.

As I hear lately, Feds (US Attorney) in Norcal don't do much felon-in-possession charging unless it's some RICO gang members busted which can generate good press.

In greater Bay Area I've heard of NFA cases that got deferred adjudication (i.e, keep your nose clean for a year) that might be charged as felonies in other areas. [Some of this was admittedly mitigated by the parties trying really hard to be Calif.-compliant, which wouldn't look good for the prosecution.]

And it appears Norcal US attorney won't get involved in criminal tax fraud cases until it's at least $150K involved - under that, it's dealt with civilly.

Just make sure you're not a baseball player with HGH steroid, that's all.

(Appears the reason the Bush team kicked US Attorney Ryan to the curb was in part for all the steroid BS stuff in the press while other real crimes - identity theft, political crimes (i.e, not enough attention paid to Perata case) etc. went on.)

berto
02-07-2009, 10:44 PM
As I hear lately, Feds (US Attorney) in Norcal don't do much felon-in-possession charging unless it's some RICO gang members busted which can generate good press.

Good to know and explains a lot.

leelaw
02-07-2009, 10:52 PM
Plea bargaining is effective at keeping the judicial system from getting bogged down. If you don't like your plea, then you always have your day in court as an option, just like everyone else.

rayra
02-08-2009, 12:22 AM
'Plea bargaining' encouraged an L.A. ADA to continue my false prosecution for concealed carry right up to the eleventh hour, despite my readily demonstrating through evidence and affadavit that I'd committed no crime. Right up to the very court session for my plea hearing, they tried to get me to plea to a lesser charge. I stood my ground and forced them to fold completely. They literally pushed me to take a lesser charge / forfeit the gun for no other reason that their ****ing batting average. When I completely refused and stated my intent to plead 'Not Guily, your Honor' and shove the whole case up their asses, they folded and recommended for Dismissal. Six weeks of insane stress complicating my recovery from leg reconstruction surgery (the hiking accident that led indirectly to the false charge), gimping around libraries and kinkos and the courthouse, doing ALL the legwork in my defense, because my Public Defender wouldn't do any real work until my charges progressed to the stage of the trial that required it, all while I was trying to quash the thing before it even got that far.
AND because the highly-touted 'RKBA' lawyers in SoCal wanted $3-5k upfront to even discuss my straightforward case.

So, not quite the angle the OP's asking about, but a different related form of prosecutorial abuse associated with the plea bargain.

DDT
02-08-2009, 8:16 AM
'Plea bargaining' encouraged an L.A. ADA to continue my false prosecution for concealed carry right up to the eleventh hour, despite my readily demonstrating through evidence and affadavit that I'd committed no crime. Right up to the very court session for my plea hearing, they tried to get me to plea to a lesser charge. I stood my ground and forced them to fold completely. They literally pushed me to take a lesser charge / forfeit the gun for no other reason that their ****ing batting average. When I completely refused and stated my intent to plead 'Not Guily, your Honor' and shove the whole case up their asses, they folded and recommended for Dismissal. Six weeks of insane stress complicating my recovery from leg reconstruction surgery (the hiking accident that led indirectly to the false charge), gimping around libraries and kinkos and the courthouse, doing ALL the legwork in my defense, because my Public Defender wouldn't do any real work until my charges progressed to the stage of the trial that required it, all while I was trying to quash the thing before it even got that far.
AND because the highly-touted 'RKBA' lawyers in SoCal wanted $3-5k upfront to even discuss my straightforward case.

So, not quite the angle the OP's asking about, but a different related form of prosecutorial abuse associated with the plea bargain.

Am I missing something? You had to choose between 6 weeks of hard work on a healing leg or paying $5K and you chose the hard work right?

CSACANNONEER
02-08-2009, 8:24 AM
Am I missing something? You had to choose between 6 weeks of hard work on a healing leg or paying $5K and you chose the hard work right?


$5K up front. Much more would probably have been needed. Also, for many people there would be no choice because, many people don't have an extra $5K laying around.

DDT
02-08-2009, 9:15 AM
$5K up front. Much more would probably have been needed. Also, for many people there would be no choice because, many people don't have an extra $5K laying around.

I understand why someone might make the choice he made. I was merely pointing out that in a "relatively" free market he had a choice and chose as his circumstances and desires led him to choose.

Surely he doesn't expect an attorney to work for free. Would he expect an auto shop to fix his car for free if he got into an accident even if it wasn't his fault.

The assertion that somehow it is the attorney's fault that he needs to get paid for the work his office does is ridiculous. I am not basing this statement on this singular post, it is a common theme in Rayra's posting here on CalGuns. I understand and agree that his case was a decided case of an overzealous prosecution and it should never have been filed but it certainly doesn't entitle him to a free legal defense by "The Right People." Plus, with the history of CalGunners I suspect he could have re-couped a large portion of his legal fees through the kindness of strangers.

Max-the-Silent
02-08-2009, 10:50 AM
bwiese;2006765 As I hear lately, Feds (US Attorney) in Norcal don't do much felon-in-possession charging unless it's some RICO gang members busted which can generate good press.

Correct. Even cases involving SBS (the most common NFA violation I encounter) don't rate federal charges in cases where the accused is a rootin' tootin' shootin' gang member.

In greater Bay Area I've heard of NFA cases that got deferred adjudication (i.e, keep your nose clean for a year) that might be charged as felonies in other areas. [Some of this was admittedly mitigated by the parties trying really hard to be Calif.-compliant, which wouldn't look good for the prosecution.]

The cases I'm aware of that don't involve some mitigating criminal activity (drugs, gangs) usually involve someone with enough money to secure adequate legal representation. In those cases, absent some prior conviction, probation would be the standard sentence. As above, the Feds. just seem to not be interested.

And it appears Norcal US attorney won't get involved in criminal tax fraud cases until it's at least $150K involved - under that, it's dealt with civilly.

One of my pet peeves. In two out of the three major metro departments, criminal fraud against anyone other than the Mayor's brother or Senator's daughter won't even rate an investigation, and the victims will be brushed off with the instruction to take their case to civil court. Try telling a small business owner with a $5K bad check hung on him that it's his problem to solve.

Just make sure you're not a baseball player with HGH steroid, that's all.

I left the front door of my house unlocked the night after they indicted Barry Bonds - the world was just that much safer afterwards.

(Appears the reason the Bush team kicked US Attorney Ryan to the curb was in part for all the steroid BS stuff in the press while other real crimes - identity theft, political crimes (i.e, not enough attention paid to Perata case) etc. went on.)

I have no clue. the U.S.A's office wasn't any great shakes before Ryan.

AggregatVier
02-08-2009, 12:15 PM
Given the choice between a lackadaisical Public Defender who's trying to minimize work and the exceptional efforts of a committed and competent defendant, rayra chose correctly. The phrase "a fool for a client" is for attorneys more eager to protect revenue than the classical absolute it is commonly taken for by those otherwise unwilling to commit the time and work a successful defendant must expend to prevail. Instead, they roll the dice and hope the attorney they pay for will be successful where they fear to tread.

N6ATF
02-08-2009, 3:15 PM
It shouldn't cost $5,000 to have your attorney write a letter simply stating

"You have no case, adding insult to injury. If you don't vacate the charges, my client has requested I file for unlimited damages under US CODE: Title 42,1983. Civil action for deprivation of rights. I will enjoy bankrupting your office to make my year's salary."

Tarn_Helm
02-08-2009, 3:50 PM
Gun rights advocates frequently say that governments should enforce the myriad of existing gun laws instead of creating new ones. That makes sense to me.

Sometimes I suspect that big-city District Attorneys agree to plea bargain agreements in which criminals aren’t punished for violations of existing gun control laws.

Does anyone think that’s a problem, or is my tin hat on too tight?

(What I’m getting at is that if there were fewer armed criminals on the streets, the public would probably be less willing to give up their gun rights.)

I am no expert on this topic.

But plea bargaining probably does indirectly promote the frustration which in turn enables Democrats to promote gun control.

Common sense does seem to indicate that the legal practice of plea bargaining diminishes the chances that someone will get convicted of a felony gun charge.

For example, a suspect accused of 1st degree murder and a separate charge for feloniously using a gun to commit it might be offered 2nd degree with gun charge dropped if he'll simply plead guilty and not go to trial.

Result: far fewer convictions for gun charges.

The gun charge becomes, in effect, a bargaining chip, not a real crime in an of itself.

This is partly because the law differentiates between things which are mala in se (evil in and of themselves, e.g., murder) and mala prohibita (e.g., owning a gun while being a disqualified person).

So in the cynical eyes of lawyers and judges, there is the real crime, murder, which is inherently wrong, and then there are the things which have merely been deemed wrong by decree but which could be made "right" (i.e., legal) tomorrow by the stroke of a pen.

Unless and until it is made illegal to bargain away gun charges, it does seem as if many folks of all political persuasions will continue to push for more infringements of the right to bear arms since the existing ones so rarely impart any final, concrete effect.

So Democrats win both ways with plea bargaining: Criminals get away with more crimes, and this in turn can be used to justify calls for ever more infringements of the Second Amendment--it also prompts people who sympathize with criminals to vote Democrat.

This is not “new” news, but it certainly confirms the obvious.

Tacoma, WA - Saturday, August 30, 2008 http://www.thenewstribune.com/
Felons vote Democratic, national study says
KENNETH P. VOGEL; The News Tribune Last updated: May 10th, 2005 07:41 PM (PDT)

If disenfranchised felons had been allowed to vote, they would have swung the 2000 presidential race to Al Gore, according to a national study Republicans are touting in their fight to overturn Christine Gregoire’s victory in last fall’s governor’s race.

The study posits that since racial minorities and the poor – groups that tend to vote for Democrats– make up a disproportionate number of felons, a hypothetical felon voting bloc would be so overwhelmingly Democratic it could swing national and statewide elections.

On average, 74 percent of felons would have voted Democratic in presidential and U.S. Senate elections dating back to 1972, according to the study’s analysis of demographic and voting data.

Of Democratic presidential candidates, the study predicts that Bill Clinton’s successful 1996 re-election campaign would have gotten the highest percentage of felon votes, at 85.4 percent. Jimmy Carter’s failed 1980 re-election would have gotten the lowest, at 66.5 percent.

A state GOP-funded study by Jonathan Katz, a political science professor at the California Institute of Technology, estimates that Gregoire received 66.3 percent of the illegal felon votes.

And a study by Tony Gill, an associate political science professor at the University of Washington, estimates that Gregoire received 60.1 percent of felon votes in King County, Gregoire’s base and home to by far the largest number of illegal felon votes the GOP says were cast.

Compared with the national study, published in 2002 in the American Sociological Review, Gill writes that his study’s estimate “is too conservative, giving Ms. Gregoire the benefit of the doubt. In other words, the rate at which felons vote for a Democratic candidate is likely to be higher than the estimates provided by the precinct-level of analysis here.”

Katz did not return a phone call.

But Nick Handy, elections chief for the secretary of state’s office, the primary defendant in the case, said the national study shouldn’t be admissible.

“It strikes me that generalized testimony about how felons probably would have voted is getting pretty remote,” he said.

Todd Donovan, a political science professor at Western Washington University who’s not involved in the case, said the national study is based too narrowly on race and is not applicable in Washington, where racial minorities make up a lower percentage of the felon population than in other states.

The study’s “hypothetical felon doesn’t really exist in most places in Washington. We just don’t fit that. We’re not in Georgia,” Donovan said.

Kenneth P. Vogel: 360-754-6093
ken.vogel@thenewstribune.com

Originally published: May 10th, 2005 12:01 AM (PDT)
***
In accordance with Title 17 U.S.C. Section 107, any copyrighted work in this message is distributed under fair use without profit or payment for non-profit research and educational purposes only.

[Ref. http://www.law.cornell.edu/uscode/17/107.shtml ]

rayra
02-08-2009, 6:35 PM
Am I missing something? You had to choose between 6 weeks of hard work on a healing leg or paying $5K and you chose the hard work right?

I don't keep $5000 cash laying around. I keep my money busy working for me. And as far as I was concerned my case was an open and shut one, on the facts. I knew I was within the law when and where I was open-carrying. I wasn't the one that brought the firearm back into city limits / to the hospital, I'd made sure it was never in my possession there and in fact were it not for my determined efforts - while on a gurney in the ER with a badly broken leg / ankle, on IV pain meds - to ensure that firearm was getting secured so nothing untoward could happen with or to it, it never would have come to the attention of the LASD in the first place. And I sure as hell felt it would be dismissed.
Plus I was doubly pissed that the oft-recommended RKBA champions were basically holding my freedom for ransom, particularly in their refusal to entertain ANY questions about my defense until the geld was delivered.
So I went to my opening arraignment on crutches and made the same State that was wrongly persecuting me pay for my defense, too.

I've related many parts of my experience in pieces over time, here. Some day I'll have to write out the entire experience from beginning to end, particularly on the legal / evidentiary steps I went through, so some other poor sap can hit the ground running when they are likewise shafted by our legal system for daring to exercise their rights. And left hanging by those touted as our champions.

rayra
02-08-2009, 7:10 PM
I understand why someone might make the choice he made. I was merely pointing out that in a "relatively" free market he had a choice and chose as his circumstances and desires led him to choose.

Surely he doesn't expect an attorney to work for free. Would he expect an auto shop to fix his car for free if he got into an accident even if it wasn't his fault.

The assertion that somehow it is the attorney's fault that he needs to get paid for the work his office does is ridiculous. I am not basing this statement on this singular post, it is a common theme in Rayra's posting here on CalGuns. I understand and agree that his case was a decided case of an overzealous prosecution and it should never have been filed but it certainly doesn't entitle him to a free legal defense by "The Right People." Plus, with the history of CalGunners I suspect he could have re-couped a large portion of his legal fees through the kindness of strangers.

Had the same ****ing boring strawman argument many times here, over what happened. I've never said or implied I was OWED anything or expected FREE representation. What I expected from the people touted as the RKBA champions was at least a few basic questions answered and a realistic appraisal of my circumstances. NOT ****ING TOLL BOOTH OPERATORS WITH THEIR HANDS OUT.
As I've stated, and stated to several of them - the short-short version of my embittering tale - I was legally open carrying in unincorporated county land, within the boundary of Angeles national forest, in defense of myself and my dog against both recently sighted cougar and rattlesnakes. I knew the laws beforehand and had been scrupulous in following them. I'd fallen from the ruins of an old dam during that hike, breaking my leg and ankle. I was stranded, alone, until I could crawl back uphill sufficiently far to get a cell signal. Responding LACFD ground and air and Forest service personnel responded, found me, stabilized my leg and helo-evaced me to my regional hospital. I'd declared my firearm and safed it before their arrival. And had charged the senior Fire Lt onscene with its safekeeping. My daypack, dog and firearm were to my understanding going to be transported to the nearest ranger station, where my missus would pick them up. While I with nothing but a wallet and a camera was transported to the hospital.
About 40mins after my arrival at that hospital, the LACFD Paramedics clacked up to the ER and dropped off my backpack, handgun inside it. ER staff were nonplussed but cooperative and tried to bring the bag to me. I stopped them at the curtain of the treatment area and told them to keep it the hell away from me. They were fine enough with it being there and my taking the things home with me once I was released. I was not and asked for someone to secure it. I was still in a great deal of pain, dehydrated, shocky, even passing out. The ER nurse brought in the duty security guard who was understandably confused and concerned. And very careful to observe the legal niceties of obtaining my permission to look in the bag, once the situation was described to him. Once the explanation was made of how things came to be so, he also was fine with the situation and promised to place the goods in the security office. At this point I pushed still further and charged him to put them under lock and key. He acceded. And that's when it went all to hell. Because to do so he had to get the key from his supervising manager. Who of course was curious about the purpose. Then the universal playbook came out and 'gun in the hospital' became 'Step 1, call the police'.
LASD were short, contemptuous, prejudging and ultimately lied on their report about my statements, before citing me for concealed carry and confiscating my firearm. And making a joke about not having to worry about my running away.
The rest is a weeks-long tale of a PubDef that wasn't going to do any work until the evidentiary / discovery portion of my trial, and ADA that was wholly uninterested in Justice or in amending my charges until the 11th hour when the stack of evidence and affadavit I accrued made it abundantly clear to both him and his superior that they had a loser of a case.

And after making the circumstances of the incident known to more than one of the lawyers recommended on this board, and despite my living in a reasoanbly conservative superior court district, the only answer, advice, direction or opinion I could get from them was the clunk of a taxi meter being switched on. To say I was nonplussed is a massive understatement. And this on top of the egregious abuse already being foisted on me by The State. AND the medical stresses I was already under.

Had there been a higher criminal charge at play, a greater miscarriage of justice or some culpability on my part, I would have bit down, liquidated some capital and paid the usurious fees for my freedom that our ****ed-up "Justice" system demands of us. As it was, I was (and remain) furiously pissed off and determined to cram the System right up its own ***. And I did. 'case dismissed with prejudice'. Firearm ordered returned.
And my thanks go out to the local criminal attorney, who for the price of a couple luncheons, was able to give me the lay of the land of my court's key personnel, their biases and prejudices, and some basic understanding of our local court proceedings, so I knew what materials I needed to bring to bear to produce that dismissal before I got any further enmeshed in the Machine.
I did all the work of a paralegal, gathering the relevant legal citations and evidence, fire dept reports, maps, USFS data on open carry in their forest, the L.A. County regs on 'use of weapons permitted when', etc etc.
And my sum expense was about $500 and about 30hrs of work. All for an arrest, confiscation and indictment that never should have happened.