Guilty pleas: really a bargain?

A man and a woman once set out to rob a bank, not in the style of Bonnie and Clyde, but by shuffling the books. Because he was the vice-president/treasurer and she a branch manager, the execution was easier than it would have been in a big-city institution.

Essentially, she would give him cash from her branch's vault, suitably altering the books to cover the loss. They did not worry about internal bank audits, since it was he (as treasurer) who ''counted'' the cash. Audits by governmental authorities required somewhat more ingenuity, but the pair managed to keep the arrangement going for more than two years (and for over $200,000) before the inevitable discovery.

In due course, the grand jury indicted both, and the government prepared for trial. Evidence was not the prosecutor's problem. Proof of a ''paper'' crime requires documentation, lots of it, and all in the form of Exhibit No. 1. A paper blizzard that would freeze the jurors' enthusiasm and numb their interest.

If he could have the testimony of a participant, then presentation of the facts would not depend upon a pile of ledgers. Whatever the value of pictures and words, a single speaking witness is worth all a bank's records.

One small legality barred his path. No defendant ever has to testify. The prosecutor thus needed a way to persuade one or another of the defendants to take the stand.

The answer was obvious. Offer to recommend an easy sentence in exchange for a guilty plea, full cooperation, and truthful testimony.

Done and done. The branch manager pleaded guilty and the prosecutor asked the judge to put her on straight probation - not a day behind bars - with a requirement that she perform 500 hours of ''community service.'' Out of understandable caution, however, the prosecutor suggested that the court defer imposing this disposition until after the trial of the vice-president.

That event proceeded smoothly. The branch manager (having helped the prosecutor put his case together) testfied simply and candidly, laying out the entire escapade: The prosecutor himself informed the jury of the plea bargain. The verdict was guilty.

Now the judge faced a difficult decision. The facts of the crime, as they had come out during the trial, clearly indicated that the vice-president/treasurer should spend some time in jail, as the prosecutor strongly insisted.

But what about the branch manager? She had pleaded guilty not out of altruism , remorse, or public spirit, but rather in reliance on the prosecutor's promise to recommend a prison-free sentence, after the co-defendant's trial. She had cooperated fully, testified honestly, and now she expected her so-to-speak payoff.

Everything had been on the up-and-up, completely disclosed. That, indeed, was part of the judge's problem. The branch manager's testimony (and other evidence) had made the judge aware for the first time that her involvement in the crime equaled that of the co-defendant. This is not unusual. The brief disclosure of fact which accompanies a guilty plea rarely affords the insight produced by hearing four days' worth of testimony.

The judge, in short, although legally bound by the prosecution's deal, felt firmly convinced that the branch manager had escaped much too lightly.

It would not do to criticize the prosecutor. He had felt, reasonably enough, that without the manager's testimony, at least one, and possibly two, not-guilty verdicts might have resulted. He honestly felt that from the public's standpoint , it was better to ensure that the instigator did not escape. Thus he was prepared to let the accomplice off, even though her guilt was great.

One cannot really blame the judge, either. Had he indicated before the trial that he would not impose the agreed sentence, the manager would have demanded a trial with the possibility of one or more miscarriages of justice.

So in the end, the government got what it bargained for. No one in the courtroom, though, was quite sure who had really paid the price - and for what.Hiller B. Zobel is an associate justice of the Massachusetts Superior Court.

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