By Mike Dorf
A few weeks ago, I received a speeding ticket for allegedly driving 53 mph in a 35 mph zone. The alleged infraction occurred on a highway on which the regular speed limit is 55 mph but is punctuated by periodic "speed zones." According to the state trooper who pulled me over, I was in one of these speed zones when he stopped me. I wasn't so sure I was traveling nearly as fast as he said, or thought perhaps he had clocked me on his radar as I was beginning to decelerate from around 55 to around 35 as I entered the speed zone. But he gave me the ticket anyway.
On the suggestion of a colleague, I contacted the D.A. in the municipality responsible for prosecuting these cases. She sent me a form affidavit on which I then told the above story, attached a copy of my clean driving record, and asked for a lesser charge. About a week later I received a plea offer in the mail. Instead of charging me with "speeding in zone (10-20 mph above limit)," a violation that typically carries a substantial fine and 4 points, I was offered the charge of "disregarding a traffic device," a charge that typically carries a smaller fine and fewer points. Some research on the web confirmed that this was considered a good deal and the best that I could reasonably hope for under the circumstances. I took the plea.
Here I want to note the peculiarity of this particular reduction in charge. I was not offered a plea of speeding in zone (<10 mph over limit) which is a lesser included offense of the original charge. For me, that was a good thing, because apparently the penalty for "disregarding a traffic device" is less even than for speeding by <10 mph above the limit. But the charge to which I pled guilty was not something I did. Nobody--not the state trooper, not I, not the district attorney, and not the judge--thought that I really disregarded a traffic device. There was no traffic device anywhere in the vicinity of the alleged offense. And so this raised for me a number of questions.
1) Was I committing perjury by pleading guilty to disregarding a traffic device? Was the D.A. suborning perjury? I think the answer is no. I read the form carefully and I was not swearing, nor was I signing under penalty of perjury. Indeed, unlike in a plea in open court, there was no place for me to recite any facts at all. I simply pled guilty, acknowledging that I was waiving my rights to trial, appeal, etc.
2) But I'm not confident that the same thing doesn't sometimes occur in open court. There would be something very odd about a judge accepting a plea from someone like me if the defendant were required to say that he in fact disregarded a traffic device.
3) I wonder about the collateral consequences. Suppose that two years from now I'm charged with running a red light and I take the stand and say "I've never run a red light." Can the prosecution impeach me with my "disregard of a traffic device" conviction? Fairness would require me to be able to then say that in fact it was a speeding ticket that led to the plea. So should the prosecution not be permitted to bring up my prior in the first place? And doesn't this further illustrate the oddness of this deal?
4) What are the limits on this sort of arrangement? Could the D.A. have offered me the opportunity to plead to a wholly unrelated offense, like busking without a license or smoking in a public building, if one of those offenses happened to carry the right level of compromise penalty? That seems crazy, but then is it any crazier than the actual deal by which I'm charged for an offense that no one thinks I committed? Can there really be no limit here? Suppose that the D.A. offers to let me off the hook for allegedly driving 18 mph over the speed limit if my sister pleads guilty to jaywalking (an offense that no one believes she committed).
5) Assuming there are limits on the unrelatedness of a charge for which a plea can be offered, what is their nature? Is it simply a matter of judicial integrity, such that a judge cannot accept a plea for which there isn't the remotest factual basis? Is it a matter of due process? And would anyone have standing to complain, given that you can always just reject the proposed deal?
I welcome trenchant analysis in the comments.