Above the Law?Posted by Scott Heiser, Director of ALDF's Criminal Justice Program on April 30, 2009
Is a Prosecutor’s Consideration of "Collateral Consequences" Cause for Concern?
I just learned that on April 28, 2009, an FBI agent, Lovett Leslie Ledger, who was off-duty at the time of the incident, pleaded “no contest” (meaning he concedes the criminal charges but his admission can’t be used against him in any subsequent civil litigation) to a state “jail felony” charge of animal cruelty. His crime? He used a pellet gun to shoot and kill a neighbor’s dog, Sassy, a three-pound Chihuahua. Under Texas law, a pellet gun can, and on these facts does, qualify as a “deadly weapon” as defined in Tex. Penal Code § 1.07(a)(17)(B), see, McMillian v. State, 2005 Tex App LEXIS 9203 (holding that defendant’s two pit bull terriers, whom he incited to attack and kill defendant’s neighbor’s dog, fell within the scope of the state definition of a “deadly weapon”). What’s the big deal? The offender’s being held accountable, so the “system” is working, right? Not so fast.
This plea was part of an agreement where, if the media coverage of this case is accurate, the prosecutor has agreed to: (a) recommend that the defendant (who still has a job with the FBI, but their investigation into this matter is “ongoing”) be placed on two years of probation and (b) not object to the defendant’s request that the court allow him to enjoy the benefits of “deferred probation.” If the trial judge allows all of this at the sentencing hearing (scheduled for June 23, 2009), at the end of two years, the defendant will get his criminal case dismissed (meaning that he will not have a formal conviction on his record). Moreover, the defendant would then be able to seal his case file, meaning nobody doing a background check on him will learn of this conduct. See, Tex Gov. Code § 411.081
Why would a prosecutor make such an agreement? The truth is, in some cases, if the state has proof problems, cutting a deal may be the best path, rather than trying the case and getting a worse result. However, it seems these days that more and more prosecutors are succumbing to a common defense argument that the state should consider the “collateral consequences” to an affluent defendant’s conviction. The truth is, folks who commit crimes at a time in their life when they have a bright professional future, a loving family and the respect of their community have much more to lose upon conviction than those less-advantaged folks who commit crimes. So, the defense argument goes, “my client will suffer much more for this than some homeless guy who shoots a dog.” The sad fact is, too many prosecutors take the bait.
If prosecutors start cutting different deals for the same conduct, based on the socio-economic ramifications for the offender, then our justice system has morphed into a class-based machine where the advantaged enjoy better plea offers than the disadvantaged. That’s not how it’s supposed to work. The offender’s conduct and the quality of the admissible evidence should control any prosecutor’s analysis, not whether the offender is likely to lose his job as a result of a plea agreement.
Here’s hoping that these corrosive forces weren’t at work in the Ledger case.