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A judge’s view of plea bargains

Galveston’s Judge Susan Criss has an interesting op-ed on the process she goes through in reviewing plea bargains that come before her. I’ve reproduced the piece beneath the fold because the Galveston News site is highly transitory. The background on the case is here.

The case involves a man accused of sexually assaulting a girl, 6, in 2002. Miles Whittington, Criss’ Republican opponent in the November election, represents Casey Lynn Spence, charged in the case.

Criss said politics were not a factor in her rejection of the plea.

“It was just too lenient for the facts alleged,” she said.

Whittington declined to comment because the case was still pending.

The agreement called for Spence to plead guilty and receive 10 years’ probation.

During the Monday morning hearing, during which she rejected the agreement, Spence told Criss that he was asking her to recuse herself from the case because he did not believe she would be fair with him.

Criss Monday afternoon told The Daily News that she understood why a defendant would feel that way, but said she treated everyone fairly.

“I don’t transfer the political atmosphere into my courtroom,” she said.

Later, another judge approved the plea bargain, which generated some outrage in the community and a reminder from the editorial page that judges don’t make plea bargains. Which in turn prompted Judge Criss’ response. Got all that?

Well, one more thing. From Whittington’s campaign page:

As a former felony prosecutor in the Galveston County District Attorney’s Office, I believe violent offenders should go to prison upon conviction, and not be probated back to our neighborhoods.

What would Candidate Whittington say about the sentence that Defense Attorney Whittington negotiated in his role of looking out for his client’s best interests? In particular, what would he say if Judge Criss had accepted it? I point this out just as a reminder that the real world is often more complicated than a campaign slogan.

Click More to read Judge Criss’ opinion on the subject.


I must respond to a recent editorial that stated that making a call on a plea bargain is not the job of the judge. My remarks are not about a particular case or a particular judge except myself.

I believe that if my signature is required then so is my thoughtful deliberation. I did not take this job to be a rubber stamp. I always remember that the plea bargain has consequences for the persons standing in front of me, for the victim, for other potential victims and the entire community.

It is not the job of a judge to broker a deal between the DA and the defense. But it is the judge’s responsibility to decide if the deal is just and legal.

I have rejected many plea bargains. Some were not fair to the victim. Some were not fair to the community. And some were not fair to the accused.

The Daily News published an editorial stating I was right to reject plea bargains that were unfairly oppressive to women charged with prostitution. I can’t just be right when you agree with the result.

I ask questions of the attorneys and the defendant before I accept plea bargains. Some attorneys have complained before about that.

It makes them uncomfortable. It makes me uncomfortable when attorneys aren’t familiar enough with the facts of their case to answer my questions yet they stand before me wanting me to accept the deal they brokered.

Most lawyers do their job and have no problem with the asking or the answering. I ask questions of the defendant to make sure they understand the legal consequences of the pleas and know and are voluntarily waiving their constitutional rights.

As a judge, I cannot go out and investigate a case. I have to rely on what the lawyers, the defendants and witnesses tell me in court.

I know that sometimes the DA must make deals he does not want to because of problems with evidence. Some young vulnerable victims cannot come into court and testify.

The DA is stuck between facing certain loss in court or getting a much lesser punishment than the case merits. I try to determine if such problems are the driving force of the plea bargain before deciding what I should do.

Judges are required by law to make several findings before being able to accept a deal. If the judge does not accept a plea bargain, the defendant is allowed to withdraw a plea of guilty and enter a plea of not guilty.

Judges must determine if a defendant is knowingly and voluntarily giving up certain constitutional rights and has the mental competence to do so.

I am prohibited by law from accepting a guilty plea if the person claims to be innocent. I have rejected many pleas where that occurred. In some instances the defendant later returned and admitted guilt. In other cases the persons turned out to be innocent.

There are times when a higher court after review has ordered me to sign a document I did not agree with. That is OK with me. I may not like doing that in a particular case, but I respect the process of review by a higher court.

It would be arrogant of me or any judge to assume that we are never wrong. The only one who was never wrong did not sit on a bench but stood before one before being crucified.

What I can guarantee is that I will always do what I believe to be the right thing. I do not substitute anyone else’s judgment for my own.

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2 Comments

  1. Mathwiz says:

    Of course politics are involved!

    This case is almost identical to the recent one in Dayton, where a judge also accepted a lenient plea bargain for an alleged child molester, the local community was also outraged, and the Dayton Daily News also printed a reminder that before getting out the pitchforks and torches, they should make their case before the relevant authorities.

    The only difference? The Dayton Daily News made the “mistake” of mentioning the Andrea Mackris case as an example of the importance of due process.

    Andrea Mackris is the woman allegedly subjected to sexual harassment by Bill O’Reilly.

    O’Lielly was not amused. When his goons at Fox failed to extract an apology for mentioning the dreaded Mackris case, he went on the Web and told his mouth-breathing followers the Dayton Daily News was “friendly to child rapists,” resulting in thousands of hate emails to the newspaper.

    The brouhaha even became Keith Olbermann’s #3 story on last Wednesday’s Countdown. Even if Judge Criss made her decision long before then, the explosive potential of these kinds of cases in today’s society is obvious. I can’t blame her for being a little skittish about a decision that could’ve landed her on national TV.

  2. John Cobarruvias says:

    “As a former felony prosecutor in the Galveston County District Attorney’s Office, I believe violent offenders should go to prison upon conviction, and not be probated back to our neighborhoods.”

    I just love watching hypocrites on parade!

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