Monday, May 01, 2006

Legal Absurdity -- robbery charge resolved as guilty pleas to copyright violation

I couldn't link to this absurdity, so here's the story from the Spokane (WA) Spokesman-Review.

May 1, 2006 - Spokesman-Review (WA)

Man Pleads Guilty To Bogus Crime

Creative Plea Settles Robbery Case

By Thomas Clouse, Staff writer

If you went solely by his rap sheet, Jewell C. Walker could be Spokane's
most prolific bootlegger of music.

The convicted child rapist and suspected robber pleaded guilty last month to
making at least 1,000 illegal recordings of music without the owner's

But it never happened ­ not even close.

In a legally sanctioned game of courtroom make-believe, Walker avoided a
potentially hefty jail term for robbery by instead accepting responsibility
for a separate crime that never occurred.

And everyone connected to the case knew it.

"We got a little creative to try to get to the end result that we needed,"
assistant public defender Tom Krzyminski explained. "Judges aren't too
inclined to do something like this. You don't want somebody to plead guilty
to something that doesn't fit the allegations.

"But with the risk of going to trial over a robbery versus this, you make
the call."

Walker, 30, was among three men implicated in a violent July 29 robbery
outside a downtown Spokane tavern. The victim, William R. Dahlen, suffered
punches and kicks to his head as he lay on the pavement pleading with the
attackers to stop, according to witnesses. The robbers even tore off
Dahlen's shorts while helping themselves to what was left of his paycheck:

Spokane police took Walker and two other men into custody on robbery

But while authorities had several witnesses, the victim reportedly was
reluctant to cooperate, creating an obstacle for prosecutors that would lead
to one of the more bizarre plea deals ever arranged in Spokane County.

Under the initial deal, Walker and the co-defendants, 27-year-old Jade
Cardwell and 30-year-old Caleb Martinelli, agreed to plead guilty to lesser
charges of first-degree theft and to repay the victim if they could avoid
jail time.

But when Krzyminski and Deputy Spokane County Prosecutor Deborah King
learned about Walker's conviction in 1993 in Kittitas County for
first-degree rape of a child, the deal threatened to unravel.

That previous conviction would have required mandatory jail time for a plea
to first-degree theft, Krzyminski said. He and King then searched for a
felony charge that wouldn't trigger jail time and found reproduction of
sound without the owner's permission.

"We are basically telling the court the alleged facts don't match the
allegations or the new charge," Krzyminski said. "There were no allegations
of sound recordings or videos. We were just being creative to get to the
point we needed to get in sentencing."

So at the deputy prosecutor's suggestion, and the judge's approval, Walker
confessed ­ in writing ­ to illegally recording music without the owner's
consent ­ a crime that everyone in the courtroom knew he didn't commit.

In legal circles, it's called an In Re Barr plea. It enabled prosecutors to
keep the deal together and secure convictions while making sure all three
defendants received similar punishment.

Walker could not be reached for comment.

"The problem is that the victim had told us in no uncertain terms that he
would not be part of the prosecution," said Deputy Spokane County Prosecutor
Deborah King. "I don't always need a victim to get a conviction, but in this
case, it would have been extremely difficult."

Although it's a legally accepted method of securing convictions, it
contradicts the "truth and nothing but the truth" principle on which all
courtrooms rely.

Superior Court Judge Ellen Kalama Clark, who presided over the case and
approved the Walker plea deal, said she's unaware of any credibility
complaints over the use of In Re Barr pleas.

"I see it as a way to resolve cases," the judge said last week.

"You know the guy did something. But the prosecutor may not be able to prove
it as charged," Clark added. "I could have rejected it. But you are still
getting some accountability no matter what it's called."

While In Re Barr pleas are frequently used, judges don't keep records on how
many times criminal defendants are allowed to plead guilty to crimes they
didn't commit.

For instance, several drive-by shooting suspects have been allowed to plead
guilty to riot, even though police have no evidence that they took up
torches and sticks and marched on downtown Spokane. And many drug
distribution charges were later reduced to conspiracy to sell drugs even
though police had no evidence the suspects did so.

But in both examples, the reduced charges are at least in the same
neighborhood, legally, with the original complaint.

Jeffry Finer, who teaches legal procedure at Gonzaga Law School, said
attorneys for both sides often find themselves in situations where any
charge is better than nothing.

"If the victim was unwilling to testify, there may have been no case at
all," Finer said. "If that's the case, then a creative plea saves all of it.
It seems like it ought not to be allowed, but it is."

He compared it to another legal strategy known as an Alford plea, in which
defendants maintain their innocence but plead guilty because they
acknowledge that authorities have enough evidence to likely secure a
conviction at trial.

But in the In Re Barr plea, everybody universally agrees that the charge is
based on nothing.

"It's a necessary evil in some respects," Finer said, referring to the In Re
Barr plea. "It is a commonly used resort to try to work some fairness into
an otherwise unfair-rigid system."

Finer, who also works as a defense attorney, said he doesn't believe the
public is being misled by the In Re Barr pleas, which, he says, fall into
his category of the weekend rule.

"Everyone wants to take the weekend off. But if we make (prosecutors) do
trial after trial after trial, they are not going to have weekends off," he
said. "And pretty soon, we won't have any prosecutors."

Appeals courts have for years allowed "charge bargaining" without any
factual basis, Finer said. And sometimes they deliver what he calls "rough

If the Walker plea allowed the prosecutor "to try a more important case that
had a compelling need Š because she cleared her docket, I applaud that,"
Finer said. "But that is a very funny resolution."

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