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. - --- MAP posted-by: GD