Pubdate: Thu, 22 Nov 2001
Source: Shepherd Express (WI)
Copyright: 2001 Alternative Publications Inc.
Contact:  http://www.shepherd-express.com/
Details: http://www.mapinc.org/media/414
Author: Geoff Davidian
Issue: Volume 22, Issue 47
Bookmark: http://www.mapinc.org/prison.htm (Incarceration)

PLEADING WITH THE DISTRICT ATTORNEY

The Milwaukee County District Attorney's Office has offered Michael L. 
Wilson a take-it-or-leave-it plea bargain on a charge of misdemeanor 
marijuana possession: 30 days in jail and two years' probation.

If Wilson refuses the deal, the DA will withdraw the misdemeanor charge and 
re-file as a felony, says Harvey Kincaid, Wilson's lawyer. If that happens, 
the DA will also add a penalty "enhancer" for being within 1,000 feet of a 
school, day care facility or park. If that happens, Wilson would face a 
three-year mandatory prison sentence.

"Unless an attorney has a perfect case, he's got to advise the client to 
take the deal," Kincaid says.

Kincaid is not the only local lawyer complaining that what is happening to 
Michael Wilson is "not appropriate." The concern is the way the DA's office 
is operating, it stacks the deck against small-time pot users forcing them 
to plead guilty to a criminal charge. It's becoming a common practice in 
the DA's office some defense attorneys say.

Milwaukee attorney Alex Flynn calls the procedure "Orwellian" and sees the 
problem with the legislature.

"What they will do is charge a case with possession with intent to 
distribute," Flynn says. "Then they'll say, 'Here's the bargain.'

"If you refuse, they'll add enhancers-within 1,000 feet of a school or park 
or day care facility.

"Virtually anywhere in the city is within that area. People who have a 
legitimate case are afraid to fight."

It's ironic that this strategy is now coming from a DA's office that 
several years ago argued pot possession should be decriminalized so that 
smokers who are busted wouldn't get a criminal record, which would hang 
with them for the rest of their lives.

Wilson, who has no prior convictions and pays child support for two kids 
living with their mother, makes about $300 a week. Wilson was busted after 
cops saw him passing a joint. Cops found 20 grams of pot on him during a 
search. The lawyer fees will cost Wilson several months' of mad money and 
still he has to do jail time either way.

"It's a crying shame the way they treat me," Wilson tells Shepherd Express. 
"This is a weed case, not a cocaine case. People who are driving drunk get 
less time than this."

Attorney Kincaid, who just graduated from Marquette Law School in June, 
says his education never prepared him for the reality of the criminal 
justice system. "It's all subjective. The DA has the option of tying the 
defense attorney's hands."

Asked whether his office has a policy of threatening to charge a higher 
crime unless a defendant buys the state's misdemeanor deal, Tom McAdams, 
who prosecutes misdemeanor cases in the DA's Metro Drug Unit, says flatly, 
"I would say, no."

"But sometimes it may happen. I'm not justifying this. The DA still has to 
take it to court, and also the person might move for dismissal.

"This is the criminal justice system, not a football game," McAdams says. 
"Congress and the legislature said they want drug free school zones."

But Kincaid has a different take.

"What hits me is seeing this on the individual level. They're just sending 
black men to jail."

Flynn says plea bargaining used to be legitimate-"There might be genuine 
substance in the case."

"It is the prosecutors doing it, it is the legislators giving them the 
tools to do it. In the past the prosecutor and defense attorney would get 
together and have a discussion. Now, they say, 'If you don't take this, 
we'll hit you.' "

And they can hit hard because the Legislature wants them to. The three-year 
mandatory minimum penalty enhancer, coupled with the state's 
truth-in-sentencing law means there is little room for the defense to bargain.

"The consequences of the minimum mandatory sentences for drug cases coupled 
with the truth in sentencing guidelines result in the prosecution having an 
unbelievable arsenal of weapons at its disposal. The effect is that people 
are intimidated from going to trial. We have to seriously examine if this 
is a cost effective way of deterring the drug problem," Flynn says.
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