Wednesday, November 14, 2007

Probation for Murder?

Reese Dunklin and Brooks Egerton reporting for the Dallas Morning News revealed their bias and naivety in their article Unequal Justice: Anyone Can Get a Deal. They criticized awarding probation, including deferred adjudication, to allegedly violent repeat offenders who had received prison time for prior crimes. The duo scolded both prosecutors for making the deals and judges for approving them. They said:

Most of the sentences originated with prosecutors, making plea bargains with the defense. The one exception was a convicted robber who, days after release from prison, tried to rob again and killed a man. He couldn't get a deal from prosecutors, so he threw himself on the mercy of a judge and lucked out.

Juries couldn't sentence any of these killers to probation, because they had felony records. But prosecutors and judges aren't bound by that restriction if they use a special form of probation – off-limits to juries – called deferred adjudication.

Dunklin and Egerton quoted Professor Marc Miller as authority in this field:
Marc Miller, a University of Arizona law professor and sentencing expert, called deferred adjudication "a stunning outcome for any killing" and added: "The point is only more true for a repeat killer."
Professor Miller was purportedly an "expert" on sentencing. However, I bet you dollars to donuts he never tried a murder case in his life. I suppose Dunklin, Egerton , and the learned Professor Miller would rather see the State push a weak case and lose their murder case to a jury, thereby emboldening the defendant and eliminating any potential community supervision that might have benefited the public welfare.

Why stick up for the prosecutors this morning? First, I understand their life as public servants since I shared it earlier in my career. More importantly, I tire of journalists pontificating on subjects they know little about. Problems with witnesses, bad police searches, involuntary confessions, and the like, turn murder cases into nightmares for a prosecutor. These "talking heads" have never experienced the reality check of a "Not Guilty" verdict appearing in conjunction with their name (as prosecutor) on the front page of their local news paper.

If the lawyers in charge of prosecuting murder cases are satisfied with probation, why shouldn't the public be too. When judges, who have authority to reject any plea agreement, are satisfied with probation, who are the talking heads to argue. Until they have tried, and lost, a murder case I wish the the likes of Dunklin and Egerton would keep their criticism of plea bargaining to themselves.

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