There is no formula to it; rather, a plea offer is determined by a series of factors — the strength of the evidence, the credibility of witnesses, the injury to the victim and, of course, the draw of the judge that day. The last factor often controls.
Often retired judges from circuit court make their cameos in district court. Today, I drew a retired judge, who was known to be tough on DUIs. I remembered this judge well from my clerkship when I assisted him during a docket. He was polite and pleasant with parties, but his patience wore thin in the face of cowardice and injustice.
On the incident date, the defendant in this case crossed the double yellow lines and the officer pulled him over. His blood alcohol content was 0.21, almost three times the legal limit. His license was revoked because of the accumulation of points from his prior DUI convictions. I recommended 90 days of executed incarceration given his priors.
First time offenders in Montgomery County typically are granted probation before judgment and a period of probation. The chances of going to jail increase with the number of prior convictions.
The defendant pleaded with the judge not to send him to jail because he had two children to support and incarceration would cost him his job. He began to choke up.
It grew quiet and all I could hear was the drone from the clerk’s computer. The only thing that broke the silence was a muffled whimper from the offender.
The judge sentenced him to one year on the driving revoked charge. On the DUI, he sentenced the defendant to six months to be served consecutive to the first count. I looked down at my file to record the eighteen month sentence imposed and heard the clinking of cuffs as the deputy removed them from his waistband and secured them on to the defendant’s wrists. The judge had imposed a period of executed incarceration well above my recommendation.
The defendant would miss work, lose his job, and his kids would wonder where daddy went. Sure, the defendant probably requested a de novo appeal of the sentence and walked out of lock-up that day upon making the appeal bond, but I was still stunned at the power I wielded.
A law degree and six weeks of prosecutor training were the only two things that stood between me and the defendant. And there I was, determining which counts he pleaded to, thereby controlling the maximum penalties, which in turn gave the court the discretion to impose jail time within those parameters.
My Spidey senses were tingling. In every case, I was to exercise due diligence in prosecuting the right people for the right reasons and exercise discretion in making my recommendations to the court. In the end, I was not only affecting people’s livelihoods, but also, and more importantly, their liberties.
My hands trembled as I called the remainder of the docket. This judge left me unsettled. In one breath he was able to strike a blow while maintaining an eerie and cold calmness to his voice.
“Uhh, I believe that concludes the docket, Your Honor,” I concluded. “May I be excused?”
“Yes, Ms. Tang,” the judge replied. “Thank you very much. It’s good to see you again.”
And with a Mona Lisa smile, he stood up and vanished into chambers.