No Deals 20 Percent Failure Rate

About one in five of the “No Deals” cases of the Shelby County Attorney General’s Office ends up in deals or they are dismissed.

That’s the word from insiders in the prosecutors’ office who say the program is rooted as much in strategies for publicity as strategies for prosecutions. But at the very least, the statistics call into question the program’s dramatic tagline: “Hard Crime Gets All the Time.”

In this way, they say, the firestorm created by the recent Mickey Wright case hints at a smoldering problem that extends beyond the plea bargain reached with the brutal murderer of Mr. Wright, a codes inspector for Memphis and Shelby County Governments.

The Gulf

The disconnect between the rhetoric and the reality in criminal prosecutions appears to be no surprise to African-Americans in Memphis, although The Commercial Appeal editorial department seems mired in deep denial. While we admire the apparent, well-intentioned concern that seems to drive its editorial policy – to reduce the racial volatility of this issue – the paper’s tone seems almost to be the defense of a close friend rather than as an opportunity for the serious discussion of an important public issue.

The outrage in the wake of the decision by the attorney general’s office to downgrade the charge against Dale V. Mardis, to enter into a plea bargain, to allow him to plead no contest to second degree murder and to recommend a sentence of 15 years continues to rumble in the African-American community and beyond, and criticism of the attorney general’s office continues unabated.

Often, at times like these, the closeness between mainstream media and prosecutors is never more obvious. With grassroots indignation growing, rather than ask tough questions about the prosecution’s handling of the Mardis case and the effectiveness, not to mention fairness, of the “No Deals” policy, most news media have largely been content to accept the party line of prosecutors as gospel and to treat African-American concerns as coming from a place of racial politics rather than from a place of serious concern about the overall equity of prosecutorial policies.

A Matter Of Degrees

Because of it, there’s been no serious inquiry by reporters to review the investigation files of Mr. Wright or to examine the prosecution’s theory of the case. Clearly, there were mistakes made in the Mardis case. It’s just a matter of degrees.

The list of possible mistakes range from whether there is a tendency to categorize cases as “No Deal” prosecutions to curry headlines, whether it was an error to pursue a hate crime theory of the case when there was little physical evidence to support it, whether there was a lapse in judgment in assembling the case, whether there was an all or nothing approach that doomed the case or whether cases removed from the “No Deals” policy should require an actual guilty plea rather than allow a plea of nolo contendere.

Just A Few

In spite of The Commercial Appeal’s editorial absolution, there are serious questions that remain to be answered. We’ve listed a number of them previously, but a few that come quickly to mind are:

· If the case was so fatally weak, why did Mardis agree to a 15-year prison sentence?

· Why did the prosecutors allow him to enter a no contest plea that keeps a guilty plea off his record?

· When does “No “Deals” really mean no deals?

Talking Points

Instead of answers to these fundamental questions, the public gets countless tortured explanations about the canon of ethics, the fine print of the “no deals” policy and the confusing tangle of legal justifications for the whiplash-causing shift in position.

After all, the attorney general’s bumper stickers had led most Memphians to believe that “No Deals” meant no deals. “If an individual is charged with committing a violent crime, he or she must plead guilty as charged or go to trial,” the attorney general’s office has pronounced.

But we now know to read the fine print: “No plea bargaining will take place unless an exception is granted for legal or ethical reasons.” Some ask why these “legal or ethical reasons” aren’t resolved before these kinds of heavy-duty charges are leveled against defendants, but at a fundamental level, that's not the nature of the beast.

The 20 Percent Solution

According to some in the prosecutors’ office, when you add the percentage of “No Deals” cases that are disposed of when defendants charges are reduced to the charges dismissed by the state, they amount to about 20 percent of the “No Deals” cases and that over the years, that percentage is relatively consistent.

Questions about “No Deals” policies were sparked again a couple of weeks ago when another “No Deals” defendant charged with killing a nine-year-old boy had his charges reduced to second degree murder. Although prosecutors said in 2002 that they would seek the death penalty for the defendant, the murderer entered a guilty plea and was sentenced to 23 years in prison, leaving another angry family grappling with the shifting sands of the “No Deals” program.

Ebbs and Flows

The “No Deals” program began in 1997 by new attorney general Bill Gibbons, and in its first year, 1,057 “No Deals” indictments were returned. While the number dramatically declined in the years after his election in 1998 (all the way to 479 in 2000) and began to climb to record highs as reelection approached, we are loathe to accept the premise that the “No Deals” program is affected by the ebbs and flows of political expediency.

But we do believe this: prosecutors have invested a lot of time and money in their tough-talking campaign, but as the controversy over the recent plea bargains indicates, there are deep-seeded questions about the applications of these policies, and prosecutors would be wiser responding to the public’s questions with some recalibrations of the program than appearing before microphones and editorial boards armed with talking points.