In yet another example of the grossly disproportionate control that prosecutors exert over the criminal justice process, Wayne County Prosecutor Kym Worthy is punishing a local judge—and countless defendants—for following the state’s constitution.
The unceasing entitlement and vindictiveness embedded in a certain subset of prosecutors is barely surprising anymore. Somehow, though, this situation manages to subvert even the lowest standard of integrity.
First, a little background: last May, former Michigan State Senator Virgil Smith was arrested after he assaulted his ex-wife and shot at her car multiple times with a rifle. Worthy’s office promptly charged Smith with multiple criminal offenses including felony assault, domestic violence, and destruction of property.
In March, Smith pled guilty to just the destruction of property charge. In exchange, he agreed to serve ten months in the Wayne County Jail and resign from his job as state senator. The Detroit Free Press reported that Smith’s plea deal also required that he “serve five years probation, cannot hold elected or appointed office during his probation, must comply with alcohol and drug treatment, must submit to a mental health evaluation, surrender the gun he used in the incident or say where it is and pay restitution to the victim in the case."
There was just one problem. Plea deals have to be approved by a judge, however, and Smith's was partially rejected by Wayne County Circuit Judge Lawrence Talon.
Judge Talon had a good reason—he didn't actually have the authority to force Smith to resign or prohibit him from holding office during his five-year probation. The judge said that “Smith could be expelled, voted out of office or resign, but requiring him to step down violates the state constitution."
Prosecutors responded by attempting to renege on the rest of the plea deal and take the case to trial instead. But Talon denied this request and went forward with the plea deal as agreed upon minus the elements that were unconstitutional, stating that "vacating the plea bargain would not serve the interests of justice." It was a valid decision, since there had already been months of negotiation and a guilty admission in the expectation that a plea deal would be worked out. Had parties known that the case would go to trial, they may have not stated or divulged certain information.
Smith resigned a few weeks later anyway, and for a moment it seemed like all parties were effectively successful in the end: Smith went to jail, the judge followed the constitution, and prosecutors secured a guilty verdict, punishment, and a resignation.
But prosecutors didn’t think that getting everything they asked for was good enough. Now, Worthy’s office is punishing the judge for rejecting elements of the plea deal, even though he had no constitutional authority to approve them anyway. From April until mid-August, prosecutors in Worthy’s office refused to offer plea deals to any defendant in Judge Talon’s courtroom.
To call such refusal infuriating trivializes how disgusting it really is. This policy is petty. It’s wrong. It is yet another childish assertion of power from Kym Worthy’s office. Here are the four primary problems with Worthy’s offices refusal to present plea deals to Judge Talon.
1) It’s a massive waste of resources.
Kym Worthy has been vocal about the budget constraints her and other prosecutor’s offices face. Here’s what she had to say in early 2014, from CBS Detroit:
Worthy referred to the situation in her office as “tragic” when discussing the number of employees she has lost in recent months. [...]
“It’s getting worse and worse by the day and we are doing the best we can.”
With eyes around the country on the poverty and crime stricken area, Worthy continues to face questions on how her office is going to handle the financial ordeal.
“My colleagues around the country are wondering how we are going to stay afloat,” Worthy said.
Yet, six months after this public statement, Worthy’s office got a slight break. They managed to increase their staff by 40, bringing the total count to 262. They also added an additional $3 million in expenditures to the budget from the previous year, including $1 million in federal grants. From June 2014 to June 2015, the departments total expenditures reached $38 million. Their projected expenditures for the current budget cycle have decreased by a million dollars, but either way, Worthy’s office spends in the $35 million range each year.
Still, it’s not cheap to run a prosecutor’s office. Funding for state and local services has declined for years now—especially in a resource-strained city like Detroit in a resource-strained state like Michigan. For that reason, I’m inclined to take her budget concerns as sincere.
So here’s the question: why did her office waste so many resources by refusing to plea out cases in Judge Talon’s courtroom? Even short trials take significantly more time than a plea bargain would. It forces prosecutors in her office to waste their time. If money is so tight, why waste dollars on petty revenge?
It’s not just about money though—it’s also about time. Why would Worthy waste precious minutes on an unnecessary trial when her staff could be spending that time doing something else?
As it happens, I happen to know exactly what Worthy could have been doing instead.
In late July I wrote about Worthy’s barbaric decision to re-sentence 40 percent of eligible people to life without parole for crimes they committed as a juvenile, even after the Supreme Court said that such sentences should only be given to juveniles in the very rarest of cases.
At the time, Worthy responded to critics by complaining about the short amount of time her office had to review her jurisdiction’s LWOP cases. From the Detroit Metro Times in late July:
Worthy said that her office analyzed each juvenile case after the High Court decisions were reached [in January], and had "one of the shortest time periods in the country to do so" under Michigan statute.
So, Worthy’s office had an unfairly short time to review nearly 150 cases that the Supreme Court has said required re-evaluating. But instead of prioritizing that review, they decided to waste precious staff resources on unneeded trials—all to bully a judge. And it’s not just about prosecutorial resources. What about defense resources?
In Detroit, 90 percent of defendants are indigent and need a public defender. And the public defense budget isn’t exactly hitting $38 million. From New America Media:
Michigan is one of just seven states that provide almost no state funding for trial-level indigent defense, leaving the counties holding that particular fiscal bag. County income derives mainly from property taxes, and property values in Michigan have been in free fall for years. Per capita spending on indigent defense is not regularly tracked, but in 2012, Michigan spent just $7.38, ranking the state among the lowest in the nation.
Total, Wayne County spends about $16 million on indigent defense—less than half of what Worthy’s office has to spend. Which leads us to the next reason Worthy’s decision to refuse plea offers in Judge Talon’s courtroom is so shameful.
2) It hurts defendants.
Here’s something that no one really talks about—the vast majority of cases in America are pled out. And by vast majority, I mean around 90 to 95 percent.
Most defendants are already facing an uphill battle—they tend to be indigent, are hoping for a quick resolve, and know that the odds of winning at trial are slim. Not to mention that the plea offer is more lenient than the trial charge. “Defendants tend to receive harsher sanctions if they exercise their right to a jury trial,” reports the Bureau of Justice Statistics. And public defenders, overworked and horribly underfunded, are incentivized to plea cases, as well, in the name of time and money efficiency. This is why so many defendants take the plea.
But the public defense system is at Worthy’s mercy—if she wants to force trials for all the defendants, they can’t force her to plea. And defendants are at the mercy of random selection— defendants don’t get to pick their judge. That means many defendants and public defenders in Detroit were forced into trial over the past few months, and those defendants often received a harsher sentence than they would had they been allowed to plea. From Detroit Free Press:
“There was a big disparity between clients that were in front of Judge Talon and clients that were in front of other judges,” Wayne County Criminal Defense Bar Association President Pro Tem Luther Glenn said. “And it was really unfair when the prosecutor’s office was willing to offer reduced charges or plea offers to anyone else except clients that were blind drawn to Judge Talon. ... It was just the luck of the draw.”
Kym Worthy knows that defendants have less resources, more at stake, and are at an unfair advantage when she refuses them the opportunity to plea. She knows what her spite is costing defendants. She just doesn’t care.
3) This is yet another example of prosecutorial tyranny.
From Detroit Free Press:
Prosecutors said in a court document that plea offers are not a fundamental right and argued there was a rational basis for the policy, saying it was "constitutionally sound." They explained that the reason they weren't offering to dismiss or reduce charges in Talon's courtroom was because he refused to honor prosecutors' "constitutional charging authority."
“When we make an offer to reduce a charge or dismiss a charge in return for a plea, it is like a contract,” Wayne County Prosecutor’s Office spokeswoman Maria Miller said in an e-mail.
No, no, no, no no. To put it bluntly, Miller is either tragically misinformed or is overtly lying to the public. I’m guessing it’s the latter.
It is not “like a contract” when prosecutors and defendants negotiate a plea deal. Otherwise, judges could sit at home most of the day and just show up for the exciting Law & Order-ish stuff. The judge is not an optional part of the plea deal process, he's a required element. It’s only “like a contract” when prosecutors and defendants negotiate a deal and the judge signs off on it.
The prosecutorial entitlement here is just outrageous. Prosecutors didn’t do Judge Talon a favor by running the plea deal by him. They had to. A plea deal must be approved by a judge. It is a honest-to-God mystery why Kym Worthy and other Detroit prosecutors have the audacity to think that they are not subject to any systematic checks on their power.
The judiciary can be a terrible referee, but that doesn’t mean one team suddenly gets unchecked power to decide the rules of the game. But that’s basically what’s been happening across America for years. Sentencing guidelines and electoral pressures have led to an increase in discretion for prosecutors and a decrease in power for judges.
Prosecutors have been siphoning power from the judiciary for years now, yet they’re still gluttonous for more. Now, in Detroit, they’re just trying to steal it out of their hands in broad daylight. The egoism is breathtaking.
4) It ignores the state constitution.
There’s one person in that court who is constitutionally responsible for ensuring the procedure and substance in the criminal process conform to the law. That person is the judge. Judge Talon’s ruling on constitutionally prohibited punishments fell squarely in the purview of his job description.
Strange that prosecutors use the word ‘constitution’ twice in some form in the court documents quoted above, given that the state constitution seems to mean absolutely nothing to them. After all, if the state constitution prohibits a judge from doing something, he probably shouldn’t do it. That seems basic. To Kym Worthy, however, it’s almost an act of treason.
Now, can judges be wrong? Of course. That’s why we have an appeals process. Can state constitutions be wrong? Yes. That’s why Michigan has an amendment referendum process. Neither of those processes include prosecutors hurting defendants to punish a judge. But, to be clear, we should be happy when judges and prosecutors don’t overstep their authority even when they can get away with it. The fact that Worthy’s office is furious because Judge Talon exhibited restraint is pretty gross irony.
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Worthy’s office has demonstrated some abhorrent behavior as of late, from her delayed release of wrongfully convicted blind man Davontae Sanford to her insistence on re-sentencing dozens of people to life without parole despite the Supreme Court’s urges of restraint.
Worthy is up for election in November, but is running unopposed. If the past few years are any indication, Detroit residents should brace themselves for a rough four years with her as head prosecutor. Once again, her latest misconduct proves that Worthy cares more about power than justice.
