Are San Antonio Prosecutors Considering the Wrong Information During Plea Negotiations? — 5th Circuit Holds it Is Error for Judge to Consider Prior Arrests That Are Not Convictions During Sentencing

In San Antonio, Bexar County and the surrounding counties, I have repeatedly had prosecutors tell me during plea negotiations that an offer they made my client was higher than normal due to my client’s prior arrests. Most recently, this week in Hays County, Texas I was told by the prosecutor that the lengthy offer on my client’s misdemeanor possession of marijuana was due to his numerous arrests that only resulted in one conviction for misdemeanor driving while intoxicated. As I explained the substance of these cases, the prosecutor told me he did not care about the facts or that they were all dismissed. He only cared that he had been arrested so frequently. The only way the prosecutor knows about the arrest is by looking at printout in the file and not reviewing the police reports. Although the prosecutors are not the ones who ultimately impose the sentence, their recommendations that consequences that may ensue from rejecting a plea offer (i.e. the prosecutor making a higher recommendation if the defendant goes open to the judge for sentencing).

The Fifth Circuit Court of Appeals recently held in United States v. Johnson that it was error for a District Court Judge to grant the U.S. Attorneys request for an upward departure based in part on the defendant’s prior arrests that did not result in convictions, despite their similarity to the instance offense. The District Court judge even advised that he was not considering the arrests per se, but was considering the underlying course of conduct due to the similarity of the offenses. The Court of Appeals cautioned that the only evidence before the court of the conduct of these arrests were the bare arrest reports, which are unreliable. The Court ruled that taking these arrests into consideration to upward depart from the guideline sentence violated due process.

Thus, in my opinion and in light of the 5th Circuit’s recent opinion, the prosecutors are unlawfully considering unadjudicated offenses when negotiating plea agreements. The previous arrests were dismissed for a reason and therefore should not used against a defendant in future prosecutions.

It is important for defense attorneys who have a client with numerous arrests that did not lead to convictions to work with their clients in getting the records expunged or filing orders of non-disclosure with the courts. It is even more important to remind the prosecutors, when they tell you they cannot go lower in their offer because of his prior arrests, that it violates your client’s due process rights to be sentenced for unadjudicated offenses.

At the Law Office of Dayna L. Jones we can assist you with clearing your record of charges that did not result in a final conviction. Contact us at (210) 255-8525 to schedule an appointment with the attorney. Calls are answered 24 hours a day 7 days per week.