DATE: Monday, October 20, 1997              TAG: 9710200077

SECTION: FRONT                   PAGE: A1   EDITION: FINAL 

SOURCE: BY NAOMI AOKI, STAFF WRITER 

                                            LENGTH:  148 lines

PLEA BARGAINS LIGHTEN COURTS' LOADS, HELP CINCH CONVICTIONS, EXPERTS SAY

Almost half of all criminal charges brought in South Hampton Roads circuit courts last year ended in guilty pleas without ever going to trial.

And that suits prosecutors just fine.

Some of those defendants pleaded guilty to avoid a trial, prosecutors say. Others were offered a deal: reduced charges, fewer charges or a pre-determined sentence in exchange for a conviction.

Plea bargains are necessary to keep the mountain of cases moving through a court system with limited resources, prosecutors and legal experts say. Without them, the criminal justice system would collapse.

Plea agreements - the term prosecutors prefer - also help convict defendants whom juries might acquit because evidence is weak or witnesses don't want to testify, they say.

In fact, most convictions - seven out of 10 locally and nine out of 10 nationally - result from guilty pleas.

``Plea bargaining conserves resources, lets you set priorities, lets you dispose of difficult cases and cases where there's a problem, and it lets you show mercy in appropriate cases,'' said Martin H. Belsky, dean of the University of Tulsa law school.

Still, people often assume that only the criminal reaps the benefits, Belsky said. And political candidates often use the term as campaign shorthand for being weak on crime, they say.

Democratic gubernatorial candidate Donald S. Beyer Jr. did just that during an Oct. 6 debate and subsequent news conferences when he accused his Republican opponent, James S. Gilmore III, a former prosecutor, of agreeing to light sentences in plea agreements with numerous sex offenders.

Last year, defendants pleaded guilty to about 12,800 charges in circuit court cases in South Hampton Roads, according to state Supreme Court data. More than 28,000 charges and 14,767 defendants moved through those courts during the year.

The data do not differentiate between straight guilty pleas and plea agreements.

Plea agreements focus on either the criminal charges or on the punishment.

In charge agreements, prosecutors may reduce charges or even drop them entirely. In sentence agreements, defendants plead guilty in exchange for a pre-determined punishment.

Defendants may perceive one type of agreement as better than the other, Belsky said. But in terms of the final sentence, there is little practical difference between the two, he said.

Sentence agreements require a judge's approval. Prosecutors can reduce or drop charges, however, without the approval of a judge.

In Virginia, formal plea agreements must be written and approved by the prosecution, defense and judge. However, defendants also may plead guilty without an agreement. Prosecutors say some defendants plead guilty just to avoid a jury trial - since juries often give longer sentences.

Last year, the 28 prosecutors in the Norfolk office of the commonwealth's attorney handled more than 8,300 charges against 4,335 defendants. Defendants pleaded guilty to about 5,100 of those charges before trials began. In Virginia Beach, 24 prosecutors handled more than 8,000 charges against 4,670 defendants. Defendants pleaded guilty to more than 4,500 of those charges.

``If we didn't approach cases with an eye toward trying to reach a punishment that, based on experience, would be the likely result of a trial, I think the whole system would come to a screeching halt,'' said Norfolk Commonwealth's Attorney Chuck Griffith.

Even increasing the number of trials by 5 percent could double the cost of the criminal justice system, Belsky said. A prosecutor can negotiate several pleas in a day while a trial takes an average of one or two days, he said.

``Even so, no plea agreement should ever be entered into without considering safety to the public and accountability to the public,'' Griffith said. ``If it doesn't do that, it is better to go to trial and risk losing.''

Plea agreements allow prosecutors to fine-tune justice, experts say.

They can show mercy for a first-time offender or offer treatment instead of incarceration. They can evaluate each case on its merits and use plea agreements to get convictions and sentences that fit the crimes.

But plea agreements give prosecutors power, which could be abused, experts say.

``There is, of course, in any plea bargain the possibility of collusion between the prosecution and defense,'' Belsky said.

Prosecutors, for example, could give a high-profile defendant a break, or plea-bargain cases just to speed them along.

The full facts of the case do not come out in a plea agreement, Belsky said. As a result, the public can't judge the merits of the case or the prosecution's actions, he said.

Belsky said he believes those losses lead to the public's mistrust of plea bargains. To the public, it seems as if lawyers are wheeling and dealing behind closed doors, he said.

Local prosecutors are well aware of that perception.

``If you were to walk up to the average citizen and say, `Plea bargain,' their face would twist up,'' Virginia Beach Commonwealth's Attorney Robert Humphreys said. ``It's the same as saying, `Nuclear weapon.' It's not something that people like.''

But prosecutors say their goal is to negotiate sentences similar to what defendants would get in a trial. Nationally, plea agreements and trials handled exclusively by a judge result in similar sentences, according to a 1995 report by the Bureau of Justice Statistics. Juries give stiffer sentences, the report shows.

Comparable local and state statistics are not available.

`` `Bargain' implies to me that the guy's getting off on a song,'' said C. Phillips Ferguson, Suffolk commonwealth's attorney. ``An agreement is appropriate. But you don't just give away a case to get rid of a case. That is not appropriate.''

And some offices set conditions for plea agreements.

In Virginia Beach and Chesapeake, for example, prosecutors don't plea-bargain with suspected drug dealers. In Norfolk and Virginia Beach, any agreement with a suspect in a violent offense must include a prison sentence.

Still, some cases are better suited for trial than others, prosecutors say.

If a case is weak - evidence is lacking or is inadmissible, or the victim and witnesses don't want to testify - plea agreements help convict defendants whom juries would likely acquit, they say.

``As a prosecutor, if you are confident that someone committed a crime, you want to walk away feeling that you got something that you can hold over their head,'' Griffith said.

That something can be probation, a suspended sentence that the defendant will serve if convicted of another crime, treatment and a criminal record, he said.

Sexual-abuse cases involving children - similar to the ones Beyer brought up during the debate - are among the toughest cases to prosecute, experts and local prosecutors say.

None commented specifically on the 35 cases involving sex offenders that Beyer referred to in accusing Gilmore of fumbling during his years as Henrico County commonwealth's attorney.

But they said plea agreements are not uncommon in sexual-abuse cases, especially those involving young children. Statistics on the rate of plea bargains for sexual-abuse cases are not available.

The cases are highly emotional, prosecutors say. Children can get confused on the stand; they may have forgotten important events or may have suppressed certain memories. Young victims may not even qualify to testify because they don't understand the oath to tell the truth, prosecutors say.

So, prosecutors weigh the strength of the case and possible trauma to the child against the threat the defendant poses to the community, prosecutors say.

``You look at cases where, if we go to trial, we have a 10 percent chance at victory,'' said Larry Willis, commonwealth's attorney in Chesapeake. ``A lot of times the victim doesn't want to testify; the mother flat-out says, `My daughter is not testifying.' ''

In those cases, Willis said, his goal is to get a conviction, he said.

``Sometimes what would be considered a victory is to identify the guy as a sexual offender, so if he does it again - and you hope he doesn't - he has a record,'' Willis said. ILLUSTRATION: Graphic/VP

Pleading Guilty

Guilty pleas as a percentage of all charges in 1996:

Guilty pleas as a percentage of all charges in 1996, by city:

For complete copy, see microfilm KEYWORDS: PLEA BARGAINS PLEA AGREEMENTS <

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