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But in La Crosse County, the vast majority of felony cases are resolved long before any juror ever hears a word of testimony.
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About 99 percent of all felony cases filed in La Crosse County Circuit Court in 2005 and 2006 were settled without trial, according to a Tribune analysis of court records. Only six of the 955 felony cases filed in 2006 went to trial.
Prosecutors, defense attorneys, judges, defendants and victims view plea agreements as an acceptable, and sometimes superior, way to handle cases. Of the more than 1,800 felony cases filed in 2005 and 2006 in the county, about 65 percent ended in plea agreements — 25 percent to a felony, 36 percent to a misdemeanor and 4 percent to a combination of both.
The remaining cases typically end with charges dismissed but are used by the judge for sentencing, or outright dismissed, in any of a number of different diversion agreements.
Plea agreements can save time and money while bringing a faster resolution for the accused and accuser. Without them, experts say, the courts would become clogged, bogged down and overworked.
“Obviously, from the standpoint of the court being able to function efficiently, without plea agreements, the system would slow down dramatically,” said
La Crosse County Circuit Judge Scott Horne, elected to the bench last spring after 22 years as county district attorney.
But is justice lost in this “let’s make a deal” process? Some argue the system encourages prosecutors to overcharge and places undue pressure on defendants to reach a plea rather than face the time and expense of a trial.
Today through Tuesday, the Tribune will look at how plea agreements are forged, why they have become a fixture in the courts and what they bring to our legal system.
How the system works
Plea offers can come from the prosecution or the defense, as early as when a defendant is charged or as late as minutes before jury selection.
In La Crosse County, most defendants are charged within 24 hours of arrest, leaving the district attorney’s office only a few hours to review reports and produce a criminal complaint before intake court convenes at 1:30 p.m. each weekday.
This differs from a number of other Wisconsin counties, where a defendant’s first court appearance determines bond and continues the case to a later date so prosecutors can review investigation reports before filing charges.
La Crosse County’s routine, while hectic, is preferred by judges here because it avoids adding another court date to a crowded calendar, said La Crosse Deputy District Attorney Loralee Clark.
But defense attorneys argue the rush leads prosecutors to base charges and plea offers on just one side of the story.
“Typically, in a high percentage of the cases, they don’t have any input from the defendant or the defense witnesses,” said defense attorney John Brinckman. “… And once they put their plea offer in writing, they tend to believe themselves. They don’t want to deviate.”
Horne said charges later can be altered if facts change.
“I think that’s the reality of law enforcement investigations,” he said.
Prosecutors make 75 percent of plea offers at a defendant’s initial appearance, when the criminal complaint is filed, Brinckman and fellow defense attorney Keith Belzer contend. That’s unfair to the defense, Brinckman said, and puts too much pressure on the defendant.
“If before you even have an opportunity to sit down and discuss the facts with your own client, get all the police reports, and do anything on a case, you’ve got the felony charges, and you’ve got a plea offer — ‘waive the (preliminary hearing) and we’ll make the felonies go away and it’ll be a misdemeanor’ — then there’s something wrong with that. It’s coercive,” Brinckman said.
The district attorney’s office, however, denies offering pleas at the initial appearance. They say it’s far more commonly done before the preliminary hearing.
Plea offers regularly are placed into the case file immediately after charging “to let (the defense attorney) know what we’re looking for, so we can try to talk about the case and resolve it quicker,” Clark said.
One exception would be domestic cases, when it’s preferable to make an offer at the initial appearance so the couple can get help quickly, Clark said.
Victims have a right to confer with the prosecutor during all negotiations, Horne said. The decision on how to proceed, however, rests solely with the prosecutor.
On the defense side, the client has the ultimate say on accepting the plea offer, because he or she would be “making a decision to waive basic constitutional rights, and that has to be intelligently, voluntarily and knowingly done,” said La Crosse County Circuit Judge Elliott Levine, a former longtime public defender.
Any plea agreement also must be approved by a judge, who can reject it on such grounds as the defendant accepting the deal while maintaining innocence, or the deal too drastically reducing charges, said La Crosse County Circuit Judge Dale Pasell. All sides agreed that rarely happens.
It is more common for judges to overrule sentencing recommendations they believe are too lenient or too severe, Pasell said. Judges make it clear at plea hearings they are not bound by the recommended sentence.
“You don’t want to blindside a guy if they’re coming in with a recommendation of probation and you’re thinking this looks like a prison case,” added retired La Crosse County Circuit Judge John Perlich.
The late Peter Pappas, a La Crosse County circuit judge for 27 years, was no fan of plea agreements, Clark said. He referred to plea hearings as “bargain day,” she said.
“Sometimes he would have us come back two or three times to justify an offer,” Clark said.
Wisconsin Court of Appeals Judge Ralph Adam Fine, a former Milwaukee County Circuit Judge critical of plea agreements, said he refused any offer that dismissed or reduced charges without supporting evidence.
“Allowing prosecutors instead of the judge to decide if a case should be dismissed or reduced puts the wrong driver behind the wheel,” Fine said.
While acknowledging plea negotiations are being done honestly, Belzer said he would like to see changes in the process.
“People negotiate in criminal cases the way they did in civil cases 40 years ago,” Belzer said. “That is, it’s about haggling, it’s about bartering. That’s a very ineffective way to negotiate, because you’re never really getting at what’s important.”
Why it works this way
Plea agreements, officials said, help move cases along and contribute to the overall efficiency of the court system.
The state annually evaluates the efficiency of its circuit courts, with the goal of having 90 percent of felony cases resolved within six months. In 2006, La Crosse County was 10 percent ahead of the state average at 73 percent. In 2005, the county’s rating was 79 percent, which was 14 percent better than the state average, according to 7th District Court Administrator Patrick Brummond.
“Justice delayed is justice denied, they say,” said La Crosse County Circuit Judge Todd Bjerke, a county assistant district attorney for 18 years before his election in April. “The longer things take, the more problems you’re going to have in many senses.”
The court system — and accused and accuser alike — get a faster resolution with plea agreements, officials said. They reduce the workload and avoid the time and cost of a trial.
“Most situations, there are legitimate reasons the public would want a plea agreement. One is it saves trial time, and trials are expensive,” Perlich said. “Other times, you may have a victim-sensitive crime, and you don’t want to have to make a victim testify.”
Plea agreements, prosecutors said, guarantee a conviction.
“This way we know the defendant is going to get treatment, we’re going to get the conviction,” Clark said. “But sometimes there’s a letdown, thinking, ‘What would we have gotten if we went to trial?’”
“It’s the borderline cases — they could lose or you could lose — that go to trial,” said defense attorney Peder Arneson. “I tell my clients, if you want complete exoneration, you have to go to trial.”
Defendants accept plea agreements for a large number of reasons, defense attorneys said. Those held on high cash bonds may settle to get out of jail, Brinckman said. Others plead because they want their legal problems to end, said defense attorney Cheryl Gill.
The uncertainty of a trial can make a plea agreement more attractive for clients, even when the defense’s case is strong, Arneson said.
“Despite what you think you have, if you go to trial, you run the risk of the jury not accepting your version, convicting your client, and the judge then sentencing as a result,” Arneson said. “And there’s a huge cost nowadays in the process.”
Defendants charged with a felony might take a misdemeanor plea offer out of fear of what a potential felony conviction could mean, Brinckman said.
“Many defendants want to just get it over with; they don’t want to have a felony on their record,” he said.
Added Levine, “If you’re given the certainty of a misdemeanor (versus a felony), what would you do?”
Does it work?
If even half of all cases filed proceeded to trial, “we would be in serious trouble,” Pasell said.
“In our country, we have the jury system. It’s the best legal system in the world, but it takes time and resources to protect people’s rights,” Belzer said. “As a result, you can’t try every case. So you have to have the reality of resources and triage and how we’re going to allocate our time.”
Right now, about 90 percent of all cases nationwide — criminal and civil — never reach a jury, said University of Wisconsin-Madison Law School professor Bernhart Kempinen.
Without plea agreements, the system would be so overburdened that society could not afford to keep the courts running, Arneson said.
“If you tried every case, we’d have 20 judges and 40 assistant district attorneys, and our property taxes would be huge and we would go nuts — and it just isn’t going to happen,” Arneson said.
Said Belzer of plea negotiations, “There’s no other way for the system to work. The system would fall apart if you did not have that.”
The county’s low number of trials is “normal,” said retired La Crosse County Circuit Judge Dennis Montabon. “I think if you go to other jurisdictions you’d have similar numbers as far as the cases resulting in pleas,” he said.
County attorneys used to have a reputation of being litigious, Perlich said. When he started, judges heard 25 to 30 trials a year, he said.
“Over the years I think we’ve gotten more in tune with what’s going on in the rest of the state,” Perlich said. “When I started 20 years ago, judges from other counties would say, ‘Why are you trying all of those cases?’
“Is it better or worse (now)? I don’t know. But it certainly saves money,” Perlich said.
It is frustrating to law enforcement officers and investigators when someone they’ve worked to arrest is released or receives a lesser punishment through a plea, said La Crosse County Sheriff’s Capt. Kurt Papenfuss.
“You just have to realize that those that get a good deal are either going to change their ways or you’ll have contact with them again somewhere down the road,” Papenfuss said.
But La Crosse County District Attorney Tim Gruenke disputes the idea that plea arrangements somehow compromise the process or let criminals off too easily.
“I think people get hung up on felony/misdemeanor, thinking if it was charged as a felony somehow, magically, if you go to a misdemeanor, that’s some sort of a travesty,” Gruenke said. “But sometimes you get exactly what you want and everyone is satisfied with the result — even victims.”
Low trial numbers would indicate La Crosse County prosecutors aren’t asking for unreasonable charges and are pressing only cases that have proof of guilt, Kempinen said.
“The issue isn’t that we need a jury to help us decide, ‘Is this the right person or did they commit a crime?’” Gruenke said. “We just need to decide what should happen as a result.”
Anne Jungen can be reached at (608) 791-8224 or ajungen@lacrossetribune.com. Dan Springer can be reached at (608) 791-8269 or dspringer@lacrossetribune.com.
