researching references to -- plea bargain

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researching references to -- plea bargain

Postby Marina » Thu Jul 06, 2006 6:10 am

researching references to -- plea bargain

child welfare info gateway ... 1&.intl=us

Plea Bargaining

Once the prosecutor's office has decided to file criminal charges against an alleged child abuser, plea negotiations may begin. The prosecutor and the accused's attorney will discuss a possible settlement of the case without a trial. Avoiding a trial may be especially desirable when the victim is a child, because the child will experience anxiety while the trial is pending, and would very likely be required to testify and be cross-examined with the defendant present.

Certain plea bargain options offer the defendant an incentive to seek rehabilitation or to reform his/her behavior in other ways. For example, the defendant's probation may be subject to his/her continued participation in treatment, or prosecution of the charges may be deferred, with dismissal conditioned on the defendant's good behavior for a specified period.

Of course, just as in civil settlements, there may also be negative consequences to a plea bargain. Child victims may feel betrayed or disbelieved, or may feel unsafe, depending on the sentence. Particularly in the criminal context, plea bargaining with a child abuser may convey the impression, to the public as well as to the perpetrator and the victim, that child abuse is not as serious as other crimes.

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Postby Marina » Thu Jul 06, 2006 6:19 am

Ann Frisch ... 1&.intl=us

Some examples of the poor child care practice:

removal of 9 children from their parents due to a cut on a child's face, a one time situation which was described both by the child and the mother as an accident;
removal of children directly from school with no chance to say goodbye to parent, to get a reasonable explanation of the trauma of not being allowed to return home after school;
when the children failed to return home after school, the mother went to school to find out what happened, and was told her children were victims of child abuse and were being taken directly to foster homes;
the mother was taken by police with no attorney present, no records of the interrogation and pressured to admit that she had abused a child;
when she failed to come to work because she was in jail, she was fired;
the mother was put in jail for four days…although the children were already removed from her care;
the family secured an attorney and took their life savings (several hundred dollars) to pay a retainer;
there were numerous times when no interpreter was provided and in some cases, the interpreters may not have been familiar with court terminology and practice;
they had no funds to pay for a trial, so faced with the possibility of losing all their children in a trial, they chose to plea bargain to a lesser charge and their children were ordered to be retained in foster care. Having plea bargained, she never had a chance to deny that she had done anything to harm her children;
the family had some income supplements through food stamps and energy assistance, so when their children were removed, they became impoverished because the income supplements are based on the number of people in the family - they went from 11 to 2. They couldn't move to a smaller house because they hoped to get their children back and would need the house.
while the probation worker was telling the family "don't yell at your children", the social workers were saying "you have to raise your voice at your children, otherwise they won't behave." You can imagine how difficult these rules were to this family.
in order to see their children, they had to travel to have supervised visitation with their children in various towns and locations; they had to meet with probation officers, social workers, lawyers. They were exhausted and anguished by what they had to do to get their family back together.
the mass production system of protective service meant that there were intake workers, then social workers, also case workers, family paraprofessionals, but none of them helped the family with tangible resources, claiming they had to go to other workers in other departments. Whenever there seemed to be a need, the social workers told them to see some other social worker or program. In one or two instances, they reapplied but were turned down…because their new family size did not qualify them. Some resources were promised, but never delivered.
In desperation to have enough income to get their children back, the mother went to work - nights - in Ripon. The social workers' response was; that's up to her if she wants to go back to work. There was no comprehensive plan to see if all the children were at home, would they requalify for benefits so that they could manage financially without her working. Considerable time was spent by the social workers to try to get the parents to ask family members to care for the children. I don't think the social workers ever considered that probably the incident that started this whole agony was because she was working to try to make enough money to provide additional money for the family.
Because of the confusion of what one social worker was doing and what others were doing, I asked the social workers if the parents could request a copy of their social service records. I was told emphatically that those records were not accessible to the parents. I, however, called the supervisor and was told of course the family members could have access to their own and their childrens' records.

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Postby Marina » Thu Jul 06, 2006 6:35 am

pretrial conference

Chapter Outline to Accompany
Adam J. McKee's Juvenile Justice Course
Juvenile Delinquency: Theory, Practice, and Law (Eighth Edition)
Larry J. Siegel, Brandon C. Welsh and Joseph Senna
Unit 7 Part 2 – Child Abuse and Neglect ... 1&.intl=us

Pretrial Conference

The attorney for social services agency presents an overview of the case, and a plea bargain or negotiated settlement can be agreed to in a consent decree.

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Postby Marina » Thu Jul 06, 2006 6:40 am

NCPCA report in regular text and American F amily Advocacy Cen ter (AFAC) com ments in italics ... 1&.intl=us

In 1997, 1,054 ,000 children were confirmed by CPS as victims of child maltreatment.

Confirmed cases include the following:
1) parents who were
acquitted in criminal trials but whose names still appear on state child abuse registries, etc.
2) Parents who are threatened, intimidated, coerced into accepting a false plea bargain or falsely
admitting guilt as a condition of seeing their children again.
AFAC estimates that over 80% of these plea bargains are coerced in this manner.
3) false convictions in criminal or family courts -
60 - 90% of these convictions are overturned on appea l.

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Postby Marina » Thu Jul 06, 2006 6:43 am

The Tyrannical Character of the ‘Child Protective Service’

By Steven Krason, Ph.D., Esq. ... 1&.intl=us

It will be interesting to see if the prosecutor’s next step confirms another point of Roberts and Stratton: that plea bargaining thwarts justice. Few cases go to trial anymore. Many are plea-bargained to conclusion. Will the prosecutor’s office try to arrange a plea bargain on the remaining misdemeanor count to get this innocent woman to admit to something to justify the heavy-handed actions of law enforcement?

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Postby Marina » Thu Jul 06, 2006 6:47 am

Hold the DA Candidates Accountable
By Randy Burton
Originally published in the Justice for Children Newsletter, March 2000 ... 1&.intl=us

The district attorney's office is the only agency in our county with the authority to decide whether to file charges in a criminal case involving the abuse of a child. The DA alone decides which cases should be presented to the grand jury, what recommendation should be made to the grand jury as to whether an indictment should be returned, whether to plea-bargain the case and what punishment to offer the criminal defendant for his or her crime, whether to go to trial and on which of the available charges or whether to dismiss the case. This incredible array of charges and authority is what is known as the "prosecutor's discretion."

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Postby Marina » Thu Jul 06, 2006 6:50 am

Plea Bargain -- No Dismissal of Petition

Syl. Pt. 2, In the Matter of Taylor B., 201 W. Va. 60, 491 S.E.2d 607 (1997); Syl. Pt. 4, State ex rel. Lowe v. Knight, 209 W. Va. 134, 544 S.E.2d 61 (2000) ... w.html#d4c

A civil child abuse and neglect petition instituted by the DHHR pursuant to W. Va. Code § 49-6-1, et seq., is not subject to dismissal pursuant to the terms of a plea bargain between a county prosecutor and a criminal defendant in a related child abuse prosecution.

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Postby Marina » Thu Jul 06, 2006 6:54 am

Senator Joseph L. Dunn, Chair
2005-2006 Regular Session

SB 544 S
Senator Battin B
As Amended January 4, 2006
Hearing Date: January 17, 2006
Family Code 5
BCP:cjt 4


Sex Offenders: Custody and Visitation ... 1&.intl=us

This bill does not include any language requiring a
warning to those submitting a guilty plea in a criminal
proceeding. The California Judges Association, in
opposition, voices concern over individuals required to
register as a sex offender as a result of a criminal plea
bargain: "[t]he bill does not require that these
individuals be provided notice as to consequences
regarding this plea and its effect on future issues of
child custody and visitation."

If provided notice, individuals could be more resistant
to plea agreements and thus force more cases to trial.
This issue probably is better handled by the Senate
Committee on Public Safety.

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Postby Marina » Thu Jul 06, 2006 7:00 am


The background, limitations and results of federal and state child abuse legislation

By Damon Coffman ... 1&.intl=us

Justice for All

A complete understanding of the problem is not possible until the role of the justice system is covered. A quick history of judicial response to criminal law is required. Prior to 1970, criminal law was based on the concept of innocence and guilt, as determined in trail by jury. Then in 1971 a case occurred which had far reaching implications. In Santobello vs New York a plea bargain deal with the district attorney was not honored by the judge during sentencing, and was subsequently appealed to the Supreme Court.

In their review of the case the court made a landmark ruling that established plea bargaining as constitutionally acceptable, and the resulting agreement between the D.A. and accused as binding. At the same time, America was riding a get-tough-on-crime agenda, and prosecutors were being pressured to bring more and more convictions to prove their effectiveness to the public. Plea bargaining provided a bonanza for the D.A.'s. Defendants who accepted a plea bargain reduced time and money spent on each case, allowing the D.A. extra resources to obtain more convictions, thus validating their effectiveness to the community they pledged to serve.

Criminals and lawyers picked up on the system very quickly and learned to use it to their advantage, bargaining with the D.A. over the plea agreement to maximum advantage. In most areas of activity, criminal indictments were over 98% accurate, and the guilty party could almost always be counted on to acquiesce to plea bargaining. The alternative of jury trial boasted a conviction ratio of better than 3-to-1, and a much harsher sentence .

One significant problem, however, was that in order to motivate plea bargaining, those who refused to bargain had to be made an example of in order to keep the conviction train rolling. This problem has been eminently recognized - even entry level college political science courses teach that no matter how many prisons are built, they will be filled to capacity under the current system.

There is direct empirical evidence for that statement. America incarcerates up to 80 times more per capita than any other civilized nation. Numerous cases have been documented by columnists like Phil Stanford of the Oregonian where an innocent party was encouraged to plea bargain by their lawyer, completely unaware of the future impact a criminal conviction would have on their life.

Prosecutors will generally bring an indictment if (1) there is credible evidence, (2) the defendant doesn't appear unimpeachable, (3) the prosecution witnesses do appear unimpeachable, and (4) it is politically expedient (read: popular vote getter).

Into this environment comes alleged child abuse, which is politically a sure vote getter, where hearsay evidence is admissible, where the defendant can be refused the right to confront his accusers, and where the defendant is emotionally devastated and somewhat incoherent due to the absurd nature of the accusations. Parties guilty of child abuse or molestation, aware of their risk in a court case, almost always plea bargain.

Innocent persons, however, tend to be ignorant of the legal system, and believe they will be acquitted. If they are indigent counsel is appointed. The average case receives about $600 legal and investigative services, against which is arrayed the unlimited pockets of the D.A.

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Postby Marina » Thu Jul 06, 2006 7:04 am

Who Evaluates Child Interviews and Interviewers?
Lawrence W. Daly ... 1&.intl=us

If an expert is hired or appointed by the State, the prosecutor will argue that the defense is attempting to conduct a psychological examination of the alleged child victim. Maybe this is the intent of the attorney or maybe the issue is that attorneys understand their limitations in interviewing children. Whatever the reasons, little has been done to establish training for professionals who interview children and/or provide for proper method and techniques of evaluating their interviews. The objection by the state to have the child evaluated by an expert is a very interesting argument since the truth is what the prosecutor should be seeking.

In the past two years, we have been involved in several cases where we were hired by an individual who had put his faith in the public defender program or a private attorney who lacked the understanding of child abuse issues or would not pay to hire the proper experts when it was desperately needed. It was the clients' opinion that if we had not become involved, he or she would have been forced to plea bargain. An innocent person could have gone to jail.

Since most individuals charged with a child abuse allegation cannot afford a private attorney or legal investigator to handle their case, they are left to be represented by public defense counsel. Legal representation is not always inadequate at this level. However, the experience of the attorney along with the time public defense counsel can put into a case is extremely limited. Therefore, the questioning of the child interviewers and the process a child abuse investigation has been routed through is seldom questioned by defense counsel and investigators. Many individuals may be in prison because a well meaning prosecutor and defense attorney failed to recognize the inadequacies of the current state(s) system approach to child interviewers and child abuse investigations.

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