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Plea deals vs. trials: Driving hard bargains in Minn., Wis. courtrooms

Washington County Attorney Pete Orput poses with a bat that circulates among prosecutors in his office who win jury trials. Orput calls it the “Heavy Hitters Club.” Mike Longaecker / RiverTown Multimedia1 / 2
Autographed bats from previous years hang in the Washington County Attorney’s Office. The bats, part of the office’s “Heavy Hitters Club,” are rotated among prosecutors who win jury trials. Mike Longaecker / RiverTown Multimedia2 / 2

HUDSON — Attorneys on both sides of a high-profile St. Croix County threats case shook hands in late September after delivering impassioned closing arguments.

The case was now out of their hands and into a jury's.

Jurors deliberated until deep into the evening, when the deadlocked panel was sent home with orders to resume discussion the next morning. Morning arrived with the revelation that a juror had brought in a printout from home that he shared with other jurors — a violation of rules governing juror conduct during deliberations.

Word was passed along to the judge, who promptly declared a mistrial.

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The juror's mistake upended a trial vigorously argued for days after each side prepped its case for months. That case, now headed toward a redo, illustrates one of many risks involved with going to trial instead of settling through plea agreements.

The U.S. Justice Department's Bureau of Justice Assistance estimated that between 90 and 95 percent of all cases are settled through plea deals — numbers that prosecutors on both sides of the St. Croix River said ring true.

Still, the finished plea-bargain product manufactured in Minnesota and Wisconsin courtrooms doesn't always jibe with the public's interpretation of how punishments should fit crimes.

"The reality is, we're ministers of justice," Washington (Minn.) County Attorney Pete Orput said. "We're not scalp collectors."

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RiverTown Multimedia spoke with officials in the Minnesota and Wisconsin criminal justice systems who shed light on the use of plea bargains and how they shape perceptions of justice.

The advantage of the plea

At the heart of the matter is justice and how it's best dispensed.

Does that mean going to trial, where evidence and testimony is examined before being judged by a jury of your peers? That's your legal right. Yet the process generally takes months and involves large margins for error — not the least of which includes unpredictable juries.

"I don't care how solid it looks," Orput said. "When you put 12 people in a box, it becomes a horse race."

Plea bargains offer a more efficient process that involves significantly more certainty in outcomes, especially in Minnesota. There's a major difference in sentencing with Wisconsin, but more on that later. Still, pleas usually involve a charging "discount," with penalties often lighter than what an across-the-board jury conviction might generate.

Brian Smestad (left) confers with co-counsel Christopher Bub. File photo"A trial may result in an adverse adjudication on more charges and longer sentences," said Brian Smestad, the Hudson-based attorney manager for the Wisconsin State Public Defender's Office. "Ultimately, it is the client's final call as to pursue a trial."

University of Minnesota Law School criminal law professor Richard Frase said pragmatism weighs heavily on the scale in plea bargaining. Not only do plea deals save expenses and stress, they form a certainty that both sides can accept — assuming they both want to avoid the worst-case trial scenario: A full acquittal or a total conviction.

"You would think," Frase said, "they would settle the case for what they think an average is between the worst case for either side."

Other factors defendants consider in the process include whether they're being held in jail, which Smestad said could motivate them to take a deal that gets them released sooner.

And then there's the cost of a jury trial.

"Defendants who hire a privately retained criminal defense attorney may face substantial costs," Smestad said. "And the more complex a case, the greater the cost."


Pleas can take many shapes and forms, with different blends of incentives and consequences.

Frase said deals that offer defendants, especially first-time offenders, conditional outcomes and diversion agreements can hit a sweet spot in the system.

"That's the best deal," he said. "Most first offenders don't come back. Why spend more money on his case and possibly make him worse?"

But St. Croix County District Attorney Michael Nieskes said there's risk involved with those agreements as well. While some succeed, "you are going to have a number of individuals who are going to crash and burn."

St. Croix County District Attorney Michael Nieskes (foreground) with prosecutor Ed Minser (left). File photoBut can justice be diminished when defendants plead to lesser charges and face lighter penalties? "Sometimes," Nieskes said.

That's why he and others said the effort to change behaviors is often central in crafting plea agreements.

Goodhue County Attorney Stephen Betcher said a good plea deal tailors the result to the defendant. The offer might suspend time behind bars, but be predicated on the offender staying substance-free and attending victim-impact panels, for example.

"The message may get through to the individual" not to repeat those behaviors, Betcher said.

Nieskes offered the hypothetical case of a suspect facing theft charges. If the victim says restitution would best serve justice, then that might be the centerpiece of the plea deal, Nieskes said.

"You're making a judgment of how to serve the community," he said.

'Heavy Hitters' at trial

Trials may leave a lot to chance, but they remain an active, viable way for resolving cases.

In Washington County, Orput urges his prosecutors not to shy away from trials. He recalls being taken aback by the number of trials held in that county — the fifth largest in Minnesota — the year before he took office in 2011. There were six trials that year, Orput said.

The court calendar would show 30 cases set for trial on Mondays. By Wednesdays, those cases would all be off the calendar, he said.

Orput instituted a new process in Washington County that saw trials go up to about 40 the following year. Instead of waiting for day-of-trial plea agreements, he pushed prosecutors to initiate more generous offers to defendants earlier in their cases.

"If you drag it out, the price goes up," he explained.

Betcher, who is retiring this year after serving as Goodhue County's top law enforcement officer for more than 20 years, said there's often a simple reason defendants don't snap up offers.

"These people are hanging on because they think they're going to win," he said.

The discounts end on trial day in Washington County. Orput and Washington County Attorney Criminal Division Chief Fred Fink said the only acceptable plea on trial day is a straight plea, where defendants can plead to the charges they face and let the judge determine the sentence — as opposed to a more generous sentence that might have been proposed earlier in plea negotiations.

Orput said it develops an incentive to say, "let's not do this brinkmanship on trial day."

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The process has led to cases being resolved faster — something that saves the system money, along with sparing victims from protracted proceedings — and helped determine which cases go to trial.

Orput encourages his prosecutors to get pleas in slam-dunk cases and to try the rest.

To generate more incentive for prosecutors to try cases, Orput developed what he calls the "Heavy Hitters Club." Prosecutors who win trials receive a wooden baseball bat they autograph and keep in their offices until a colleague gets to claim it. A win in jury trials earns a full-size bat; victories in court trials — where a judge decides the case — earn prosecutors a miniature bat.

Lose a trial? Someone brings in doughnuts for you, Orput explained.

"It has motivated them to try cases," he said.

Prosecutorial power

Prosecutors play a key role in the criminal justice system, but their powers in Minnesota are greater than in Wisconsin.

Minnesota prosecutors have the power to offer not just pleas to counts, but to offer sentences as part of the package.

"We take that with a great deal of responsibility," Orput said.

Prosecutors in Wisconsin can make offers and sentencing recommendations, but final sentencing discretion in the Badger State is endowed to judges. That judicial discretion far outweighs what Minnesota judges are allowed.

Whereas Minnesota judges are confined to the framework of sentencing guidelines, their Wisconsin counterparts are free to sentence defendants to the minimum or maximum penalties allowed under the law.

Nieskes, who has served as a judge in Wisconsin as well as a prosecutor, said he prefers Wisconsin's system over others.

"The courts are elected to make judgment calls," he said. "It's a good check and balance on both the prosecution and defense."

Smestad, who oversees a team of public defenders in western Wisconsin, said judicial discretion plays a role as defendants evaluate their options.

"Judges may accept the agreement or they may amend it," he said.

Justice for victims

In rare cases, the offer defendants get might have less to do with them than protecting the victim.

Those instances usually play out when abuse survivors are faced with the possibility of testifying at trial. Rather than put victims on the stand and tear open tender wounds, a more generous plea offer might be extended to the accused.

"Some of them," Betcher said of victims who are called to testify, "cannot go through that without great peril to their future abilities and start a new life."

Those rare circumstances are most often seen in sexual assault cases, Orput said, where prosecutors "get as much justice as we can without forcing her to go to trial."

Sensitive cases aside, victim input is always considered in plea negotiations, the prosecutors said. And even though the system isn't bound by victims' wishes — prosecutors can move harsher or milder offers forward regardless — Orput said he tells his team to keep victims in mind throughout the process.

"That should be your paramount concern every time you're plea bargaining," he said.

Mike Longaecker

Mike Longaecker is a regional/enterprise reporter for RiverTown Multimedia. His coverage includes St. Croix County government, higher education and state politics in Wisconsin. 

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