During the lawsuit, the ND bar agreed to give lawyers the ability to opt out of paying for non-regulatory functions of the bar. This is known as a “Keller deduction.”
The court didn't consider the merits of the lawyer's claim that mandatory membership in the bar violated the lawyer's right to freedom of association.
DA Wolfson is correct that the only way to process that kind of volume is through plea bargaining. In fact, he is incredibly honest about the leverage he holds over the accused:
"If the parties cannot come to an agreement, there is always the option to take a case to trial and let a judge or jury determine the outcome. However, often that is a risk a defendant is not willing to take."
That risk exists not merely because of the law and facts of a case, but more importantly the economics. A truly innocent Defendant may agree to a plea bargain because he or she does not have the economic resources to mount a vigorous defense. Even middle class Americans don't have the resources to hire counsel to go to trial, and, in some cases, to hire experts.
Prosecutors, police and judges know this and it makes them less sharp in the work they do.
We need to seriously reexamine plea bargains. While they may efficiently resolve conflict, they do not mete out justice in any sense. Those truly guilty face less accountability, and those who are innocent are unable to defend themselves. Plea bargains have shifted power from judges to prosecutors. Plea bargains have created a system in which the accused may be presumed innocent in theory, but are forced to operate and negotiate from a position of presumed guilt instead.
I agree that there is a great amount of pressure exerted on criminal defendants to plea. But if we just got rid of plea bargaining altogether it would force defendants who admit their guilt to go through the rigmarole of a trial and would require the hiring of dozens more judges, prosecutors, PDs, and associated court staff, and the construction of many more courtrooms to handle all of these trials. Trials require a lot of preparation, if anything just the subpoenaing of witnesses is a hassle not just on the lawyers involved but on witnesses themselves, and they monopolize a physical courtroom space for a long time. That's a lot of unnecessary work on slam dunk cases that often times should be resolved via plea bargain and that's a lot of taxpayer money spent.
10:04 here. Yes, you have articulated the dilemma of eliminating plea bargains quite well. I'm not a criminal lawyer, as noted, but I wonder if part of the solution here is to have a conversation about what kinds of crimes we are going to prioritize punishing as a society. The War on Drugs, at least somewhat over, wasted a lot of judicial resources that could have been spent holding real criminals accountable. Prostitution laws create black markets and criminals and needlessly burden our criminal justice system. There are probably others that can be identified by persons more informed than I. The bottom line is that we can't have this kind of volume and expect any justice to come from it. We need to start talking about priorities.
I don't agree with the resources argument. Even defendants that hire private counsel can receive court appointed investigators or county money to hire experts and are given more than enough time to fully investigate the matter. The risks of a conviction and the inherent advantage prosecutors have because of the party they represent play far more of a role in plea bargains.
Obviously, regardless of differing opinions on Wolfson, plea bargaining is a practical necessity, and I don't believe that Clark County's percentage of plea bargained cases has been significantly different under any of the past District Attorney's tenure.
He references the obvious resources and expenses arguments as to why the vast majority of cases must be resolved by negotiating. But no DA wants to publicly address the additional argument for why plea bargaining is a necessity–in most cases people are over-charged, and one of the purposes of over-charging is so that there is built-in room for such negotiation.
The average well-meaning community member, or member of the media, who bemoans the pervasive use of plea bargaining, in addition to ignoring the very valid resources argument, seems to be laboring under the delusion that the DA always charges appropriately based on the offense. They seem to think that simply because most of those charged are guilty of something, that they have been charged proportionately. But they rarely are.
Criminal defense lawyer here. It's overcharging, and finding ways to keep the defendant locked up pretrial. Wealth matters. The DAs know that those unable to post bond will plead a lot quicker if they're locked up. The one factor most closely related to results (favorable negotiation, verdicts and sentencing outcomes) is whether the defendant is released pretrial. Overcharge and keep them locked up and you'll get a plea. They know that.
Guest
Anonymous
September 5, 2019 5:12 pm
Well said
Guest
Anonymous
September 5, 2019 5:59 pm
Yes, the rich get cush plea deals from Wolfson. He is a solid DA, not.
12:49, can I have the 1991 DA as well back, instead of Wolfson. Cush all day long.
Guest
Anonymous
September 5, 2019 11:08 pm
"During voir dire in this criminal case, the trial judge threw a book against the wall, cursed, and berated, yelled at, and threatened a prospective juror for expressing her belief that she could not be impartial. We conclude that such behavior and statements constitute judicial misconduct and may have discouraged other prospective jurors from answering candidly about their own biases. Because we cannot be convinced that an impartial jury was selected under these circumstances where the judge did nothing to alleviate the intimidating atmosphere that he created, we reverse and remand for a new trial."
That's just the introductory paragraph from Azucena v. State, 135 Nev. Adv. Op. No. 36, decided today.
This is insane. I have had Scotti as a settlement judge but never for trial, and I would not have guessed he had this in him from my limited experience. Also, to tie this into the conversation up top, it is insane to me that the State, either the DA's office or the AG's office, would oppose this appeal.
Agreed. The State should've confessed error rather than argued harmless error, but I guess that would've required the DA to firmly throw Scotti under the bus.
Surprised? Scotti was abusive to numerous staff members and was pulled aside by senior judges to get his conduct under control. It is known that he had some personal issues a few years back. This was not a bright time in his life.
I hadn't heard of this case. But I read the first comment and thought, "must be Scotti." Read the other comments, and yep…Scotti. Frankly the opinion goes easy on him.
Guest
Anonymous
September 5, 2019 11:57 pm
The video is referenced in the Opinion. It's probably part of the appellate record somewhere if someone is inclined to go through it…
No, that's not what the 8th Circuit opinion says.
During the lawsuit, the ND bar agreed to give lawyers the ability to opt out of paying for non-regulatory functions of the bar. This is known as a “Keller deduction.”
The court didn't consider the merits of the lawyer's claim that mandatory membership in the bar violated the lawyer's right to freedom of association.
You are correct. The headline is wrong
DA Wolfson is correct that the only way to process that kind of volume is through plea bargaining. In fact, he is incredibly honest about the leverage he holds over the accused:
"If the parties cannot come to an agreement, there is always the option to take a case to trial and let a judge or jury determine the outcome. However, often that is a risk a defendant is not willing to take."
That risk exists not merely because of the law and facts of a case, but more importantly the economics. A truly innocent Defendant may agree to a plea bargain because he or she does not have the economic resources to mount a vigorous defense. Even middle class Americans don't have the resources to hire counsel to go to trial, and, in some cases, to hire experts.
Prosecutors, police and judges know this and it makes them less sharp in the work they do.
We need to seriously reexamine plea bargains. While they may efficiently resolve conflict, they do not mete out justice in any sense. Those truly guilty face less accountability, and those who are innocent are unable to defend themselves. Plea bargains have shifted power from judges to prosecutors. Plea bargains have created a system in which the accused may be presumed innocent in theory, but are forced to operate and negotiate from a position of presumed guilt instead.
I am not a criminal lawyer.
I agree that there is a great amount of pressure exerted on criminal defendants to plea. But if we just got rid of plea bargaining altogether it would force defendants who admit their guilt to go through the rigmarole of a trial and would require the hiring of dozens more judges, prosecutors, PDs, and associated court staff, and the construction of many more courtrooms to handle all of these trials. Trials require a lot of preparation, if anything just the subpoenaing of witnesses is a hassle not just on the lawyers involved but on witnesses themselves, and they monopolize a physical courtroom space for a long time. That's a lot of unnecessary work on slam dunk cases that often times should be resolved via plea bargain and that's a lot of taxpayer money spent.
11:11 AM,
10:04 here. Yes, you have articulated the dilemma of eliminating plea bargains quite well. I'm not a criminal lawyer, as noted, but I wonder if part of the solution here is to have a conversation about what kinds of crimes we are going to prioritize punishing as a society. The War on Drugs, at least somewhat over, wasted a lot of judicial resources that could have been spent holding real criminals accountable. Prostitution laws create black markets and criminals and needlessly burden our criminal justice system. There are probably others that can be identified by persons more informed than I. The bottom line is that we can't have this kind of volume and expect any justice to come from it. We need to start talking about priorities.
I don't agree with the resources argument. Even defendants that hire private counsel can receive court appointed investigators or county money to hire experts and are given more than enough time to fully investigate the matter. The risks of a conviction and the inherent advantage prosecutors have because of the party they represent play far more of a role in plea bargains.
I do practice criminal defense, and when it comes to negotiating with a DA I am looking for leniency, not justice in about 99.99% of my cases.
Obviously, regardless of differing opinions on Wolfson, plea bargaining is a practical necessity, and I don't believe that Clark County's percentage of plea bargained cases has been significantly different under any of the past District Attorney's tenure.
He references the obvious resources and expenses arguments as to why the vast majority of cases must be resolved by negotiating. But no DA wants to publicly address the additional argument for why plea bargaining is a necessity–in most cases people are over-charged, and one of the purposes of over-charging is so that there is built-in room for such negotiation.
The average well-meaning community member, or member of the media, who bemoans the pervasive use of plea bargaining, in addition to ignoring the very valid resources argument, seems to be laboring under the delusion that the DA always charges appropriately based on the offense. They seem to think that simply because most of those charged are guilty of something, that they have been charged proportionately. But they rarely are.
Criminal defense lawyer here. It's overcharging, and finding ways to keep the defendant locked up pretrial. Wealth matters. The DAs know that those unable to post bond will plead a lot quicker if they're locked up. The one factor most closely related to results (favorable negotiation, verdicts and sentencing outcomes) is whether the defendant is released pretrial. Overcharge and keep them locked up and you'll get a plea. They know that.
Well said
Yes, the rich get cush plea deals from Wolfson. He is a solid DA, not.
But he still outperforms SizzleLack!
Off topic here, but do people really think these name puns are actually sick burns? Obummer? Harry GReid? SizzleLack? Do better.
Also, 10:59, 1991 called and wants its cultural references back.
12:49, can I have the 1991 DA as well back, instead of Wolfson. Cush all day long.
"During voir dire in this criminal case, the trial judge threw a book against the wall, cursed, and berated, yelled at, and threatened a prospective juror for expressing her belief that she could not be impartial. We conclude that such behavior and statements constitute judicial misconduct and may have discouraged other prospective jurors from answering candidly about their own biases. Because we cannot be convinced that an impartial jury was selected under these circumstances where the judge did nothing to alleviate the intimidating atmosphere that he created, we reverse and remand for a new trial."
That's just the introductory paragraph from Azucena v. State, 135 Nev. Adv. Op. No. 36, decided today.
This is insane. I have had Scotti as a settlement judge but never for trial, and I would not have guessed he had this in him from my limited experience. Also, to tie this into the conversation up top, it is insane to me that the State, either the DA's office or the AG's office, would oppose this appeal.
Agreed. The State should've confessed error rather than argued harmless error, but I guess that would've required the DA to firmly throw Scotti under the bus.
Does anyone have a link to the video?
Probably not. Someone's going to have to go to the trouble to get a copy of the JAVS recording for April 25, 2017, and upload it somewhere.
If it helps anyone find it, the case number below was C321044, and it's the JAVS on April 25, 2017, Court Exhibit 3, time index 1:39:15-1:40:38.
Surprised? Scotti was abusive to numerous staff members and was pulled aside by senior judges to get his conduct under control. It is known that he had some personal issues a few years back. This was not a bright time in his life.
I hadn't heard of this case. But I read the first comment and thought, "must be Scotti." Read the other comments, and yep…Scotti. Frankly the opinion goes easy on him.
The video is referenced in the Opinion. It's probably part of the appellate record somewhere if someone is inclined to go through it…