Using Age as Leverage
The concept of the plea bargain is one that is at the forefront of criminal law today. Inherent in plea bargaining is the concept of negotiation, and, like in any negotiation, the concept of leverage is critical to the plea bargaining process. Leverage in plea bargaining can take many forms, but as this example will show, a major source for defense lawyers is a pitiable client.
An 85 year-old man from Clarksville, TN was recently charged with raping a mentally disabled victim who was between the ages of thirteen and eighteen. Despite the fact that an eyewitness saw the man inappropriately touching the girl and that some believe the victim could have testified to the rape in Tennessee, the district attorney’s office offered the man a best interest plea to sexual battery, which he accepted. He was thus sentenced to a total of five years probation. The district attorney’s office cited a lack of evidence and the victim’s physical condition as reasons for the offer.
The circumstances of the case would seem to indicate that the offender’s physical condition and advanced age played a much greater role in the offer than the lack of evidence. Robert Nash, the assistant district attorney was quoted as saying "He's an 85-year-old man with serious heart troubles […] [W]e couldn't prove the rape allegations. We just couldn't do it." Nash also said the victim’s disability might have presented problems with testimony. However, Tennessee Rule of Evidence 601 provides that every person is presumed competent to be a witness unless otherwise provided by law, and there is no rule or law that would have prevented the victim in this case from testifying as a competent witness. The Clarksville Police Detective who investigated the incident took a different view, saying "I completely disagree that the evidence could not have been proven, […] I feel as though the eyewitness would've supported the evidence." The evidence certainly seemed adequate to proceed with the case given that the victim and an eyewitness could testify to the alleged behavior, and it is telling that Nash qualified his explanation of the inability to prosecute the case by referring first to the victim’s physical condition.
This situation demonstrates that having a client that can elicit sympathy or pity from the jury can certainly be a valuable source of leverage in plea negotiations. In this case, the prosecution seemed doubtful that the jury could convict an eighty-five year-old man in poor health, regardless of the evidence. Absent hard evidence, rape cases have frequently proceeded in Tennessee and resulted in guilty verdicts based primarily or even solely on the testimony of the victim, so it seems unlikely that a lack of evidence really drove the prosecution to offer the deal.
More likely, and as indicated by Nash’s comments, the prosecution was not confident in its ability to persuade the jury to send an eighty-five year-old man to prison. The prosecution harbored this fear with good reason; it is highly unlikely that even if the jury found the man guilty they would sentence him to actual jail time given his frail condition and advanced age. There are some types of offenders that juries are simply hesitant to impose harsh punishments upon and people of advanced age fall into that category. Defense attorneys should keep this in mind the next time they are negotiating a plea agreement for such a client, as it provides a strong bargaining position from which to obtain a favorable deal.
Sources: http://www.tennessean.com/article/20090918/NEWS03/90918016/2066/Clarksville+man++85++gets+probation+for+raping+disabled+teen; Tenn. R. Evid. 601.
Bookmark: 
