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July-August 2007

Questioning a defendant during an agreed guilty plea hearing

Suzy Morton

Assistant District Attorney in Fort Bend County

Oshea Spencer

Assistant District Attorney in Fort Bend County

Getting the defendant to admit guilt on the record, especially in child abuse cases, can go a long way toward helping the victim heal and preventing frivolous appeals.

Some felony courts in Texas do not regularly take a record during agreed plea proceedings, and many prosecutors are not in the practice of questioning defendants during pleas. It is important to both make a record of a plea and require a defendant to testify, particularly in cases involving sex crimes against children (and especially in cases where the defendant is receiving probation). Some reasons to do so include:

1

The child victim deserves to hear the defendant admit his guilt (or be told later that the defendant admitted guilt).

2

The defendant deserves to have to admit his guilt publicly. By this we mean if he can do the crime, he may or may not do time, but he can at least face the public humiliation associated with the offense(s) he committed.

3

With admission of guilt, the defendant’s family members who continue to deny he would ever hurt a child cannot continue to deceive themselves, potentially placing other children in the defendant’s family at risk.

4

If the abuse occurred within the family or between families who are close friends, as it often does, those who sided with the perpetrator or who didn’t know whom to believe, will know the child was the one telling the truth.

5

Even if a defendant is pleading guilty to only one or two indictments, you can question him about an ongoing course of abuse with the child, preventing the defendant from minimizing his guilt to family members or others (“It only happened once,” etc.).

6

If the defendant later violates probation and is facing adjudication and sentencing, having a record of his admission to specific conduct and the ongoing course of abuse can aid in getting a harsher sentence.

7

A defendant who won’t admit his guilt isn’t worthy of probation, which you can argue to the judge.

8

Having the defendant articulate some of the facts of the offense protects against subsequent claims that the plea was involuntary (for example, the defendant can’t claim he simply pled guilty to get a better deal).

9

Having the defendant testify regarding his satisfaction with his attorney’s representation may protect against claims of ineffective assistance of counsel and/or grievances against the defense attorney on appeal.

10

And lastly, you as a prosecutor have done a lot of work preparing the case for trial (or the defendant wouldn’t be pleading in the first place)—doesn’t it just feel more like justice was done to hear the defendant admit his crimes in more detail that just hearing him plead guilty?

A case recently prosecuted in Fort Bend County illustrates many of the reasons above. A little boy we’ll call Jeremy had a favorite uncle, whom, to protect the boy’s identity, we’ll call Joe Johnson. Mr. Johnson was a favorite within the extended family as well; other adults viewed him as a good role model for their children. Johnson was a licensed peace officer in the State of Texas and through the years had worked at the local sheriff’s office as well as for a constable’s office. Young Jeremy enjoyed spending time with Uncle Joe, even though Uncle Joe would frequently touch Jeremy on his genitals and rub his own genitals against Jeremy.

As is common in child abuse cases, Jeremy didn’t tell anyone what Uncle Joe was doing to him for a long time. The sexual abuse started when Jeremy was 7 or 8, and he didn’t tell until he was almost 10 years old. When he did tell, Jeremy told his little sister and another younger child in the family and swore them both to secrecy. Eventually, Jeremy’s little sister told their mother, and the family was shocked—some were in disbelief. When questioned by investigators as well as his family, of course Uncle Joe denied the allegations. Due to the type of abuse, there was no physical evidence of the crimes. Therefore, as is often the case with sex crimes against children, it came down to the child’s word against the adult perpetrator’s word. Uncle Joe was indicted on two cases of indecency with a child by contact.

During the year and a half that the cases against Johnson were pending, Jeremy and his mother heard from time to time that Uncle Joe was telling other family members that he did not sexually abuse Jeremy and that his lawyer was going to get the cases dismissed. Incidentally, Johnson became dissatisfied with his first lawyer and complained about him in court on several occasions. He had a different lawyer at trial.

Fortunately, Jeremy was receiving therapy through the local children’s advocacy center. Jeremy repeatedly expressed concern to his therapist that some family members doubted his allegations, and he worried that he would not be believed in court when the cases went to trial. He also expressed fear that if the defendant were found not guilty, everyone would think he was lying and he would get in trouble. He felt very confused because he still loved his uncle.

Jeremy’s mother had mixed feelings about what should happen to the defendant. She was extremely angry about the abuse but still cared for Johnson too. She expressed that she would be better able to cope with what he had done to her son if he would just admit it and take responsibility for his crimes. She especially felt that it would help Jeremy heal if Uncle Joe would admit what he had done. Therefore, following jury selection, when the defendant requested to plead guilty in exchange for probation, the State agreed.

We required that he be placed on the maximum 10-year term of community supervision (deferred adjudication because they were CCP Art. 42.12 §3g offenses), with all the extensive conditions of probation for sex offenders that Fort Bend County judges generally order in sex cases involving children. In addition, the defendant must serve the maximum 180 days in jail as a condition of probation and write letters of apology to Jeremy and Jeremy’s mother. We have policies in the Fort Bend County D.A.’s Office Child Abuse Division requiring letters of apology to the victims and some amount of jail time as a condition on pleas of probation involving sex offenders. (We figure, if DWI offenders must serve jail time as a condition of probation, why shouldn’t sex offenders?)

In Jeremy’s case, the defendant was required to plead to both cases of indecency with a child, which are classified as “sexually violent” offenses under the Sex Offender Registration Program of Chapter 62 of the Texas Code of Criminal Procedure. Requiring a defendant to plead to at least two sexually violent offenses is recommended in any ongoing course of sexual abuse case because the perpetrator will be required to register as a sex offender every 90 days rather than once a year.

During Joe Johnson’s plea, several of his family members, including the victim and his mother, and many of the peace officers involved in the case were present. The State called the defendant to testify and questioned him regarding his conduct during the sexual abuse and the investigation. Specifically he was required to admit that he had fondled the child’s genitals and rubbed his genitals on the child’s body for his own sexual gratification and arousal and that these acts had occurred on many occasions. He also admitted under questioning that Jeremy had told the truth to his mother and the forensic interviewer, and that Johnson himself was the one who lied when he denied the allegations to the family and the detectives who investigated the case.

Following the plea, Jeremy’s mother gave an emotional victim-impact statement. Although nothing can change what happened to her family, she was relieved that Jeremy no longer had to worry that some people did not believe him. As prosecutors, although we knew Jeremy could do it, we were pleased that he did not have to relive the details of the sexual abuse in the courtroom.

A few things to keep in mind when preparing to question the defendant during a plea include making sure the judge is aware that you intend to question the defendant (especially if it is not common practice in that court). Remind the defense attorney that as part of the plea agreement, you plan to question the defendant, and advise defense counsel of the intended questions. The defendant must be prepared to admit the details of the offenses and to answer any other questions you may ask. That should prevent busting your plea agreement because the defendant balks at admitting the facts of the crime in front of his mama and whoever else happens to be in the courtroom.

We hope this article encourages our fellow prosecutors to question defendants during agreed plea proceedings in these sensitive and important cases.