Ryan Haynie | July 14, 2022
What Rep. Anthony Moore taught my colleagues about coercive plea bargaining
I’ll give you a quick peek into OCPA staff meetings. While every member of the staff is conservative, there’s a spectrum. Some are more socially conservative, others more fiscally conservative, with all sorts of nuances. As one of the more liberty-minded staff members—and the only one with significant experience working with the criminal justice system—I sometimes lose my colleagues when I talk at length about the need for criminal justice reform. I think that’s changed over the last few weeks.
On June 20, state Rep. Anthony Moore took his spouse to the Custer County Courthouse where she filed for victim protective orders against several of my colleagues. Despite none of these individuals having any contact with Rep. Moore’s spouse, the orders immediately branded them—keeping them from coaching little league or volunteering in their children’s Sunday School classes. Protective orders are technically civil in nature, but can carry consequences similar to criminal proceedings—including the surrender of firearms and a conceal-carry license. In all this, none of our staff had an opportunity to be heard in court or even to be notified before the judge issued the orders. Our first notice came from a Facebook post by the Weatherford Daily News, which apparently had been given the story by Rep. Moore.
On July 1, the Moores dismissed the protective orders—one business day before they would have had to defend a motion to dismiss and, possibly, argue why the protective orders should be made permanent. But Rep. Moore is a former assistant district attorney, and he wasn’t going to dismiss the protective orders without trying one of the most common and pernicious prosecutorial tricks in the book: coercive plea bargaining.
The court system can be used as a weapon.
In the criminal justice system, the overwhelming majority of cases are not dealt with by the constitutionally prescribed method of trial by jury. Most cases are resolved by plea agreements where the defendant agrees to admit guilt in return for some “bargain” with the prosecutor to lessen punishment in some way. In many cases, this isn’t problematic. The defendant knows he committed the crime, the evidence is overwhelming. Trading a sure lesser punishment in the face of overwhelming evidence is a no-brainer for the defendant and saves everyone time and money.
But sometimes the evidence isn’t overwhelming. Sometimes the prosecutor has a weak case, or the State has the burden of proving a certain intent that isn’t at all clear. In those cases, only insanity or a disparate bargaining system would convince a defendant not to force the State to carry its burden and stand a chance at freedom. But a disparate bargaining system is exactly what the criminal justice system often provides.
In order to avoid the time, expense, and potential for loss at trial, prosecutors offer steep discounts in punishment—sometimes even substituting charges—in order to induce the defendant to waive their right to a jury trial. Sometimes called the “trial penalty,” the problem is so bad that one study found that exercising your right to trial increases punishment, on average, by a multiple of three.
How does that relate to Moore and his protective orders? On June 28—the night of the primary election—after polls had closed and Anthony Moore had sucked all the publicity out of the protective orders, his attorney reached out to the attorney representing OCPA’s employees in order to try to settle the matter. In return for him dropping the protective orders, OCPA staff would agree to not discuss the matter. Regardless of how they felt about their chances of success on the merits (very good), they were still put in the position of having to decide between a sure win with a gag order or roll the dice in front of the judge in order to retain their right to defend themselves in the public square.
In criminal cases, this decision isn’t easy. I once had a client threatened with life in prison should he lose at trial, but the prosecutor was willing to let him plead guilty in return for five years. No matter how you feel about your case, that’s a heck of a decision to make.
And the decision wasn’t easy for Jonathan Small, Dave Bond, and Ray Carter, either. Still, they chose to push forward with their motions to dismiss rather than accept any settlement with a gag order. They called the prosecutor-turned-politician’s bluff. Upon learning those three would rather have their day in court, the Moores asked the judge to dismiss the protective orders before the hearing.
Our staff may still not be on the same page about whether Oklahoma should pursue bail reform, what the appropriate punishment for any given crime should be, or whether our scorecard should penalize every bill that proposes a new crime (I think the criminal code is too long as is). But you can bet they now all see that the court system can be used as a weapon, and the bargaining power is rarely balanced. It’s a shame to learn these things the hard way, but a reminder of how important it is to maintain a healthy skepticism of government power in all its forms.
Criminal Justice Reform Fellow
Ryan Haynie serves as the Criminal Justice Reform Fellow for the Oklahoma Council of Public Affairs. Prior to joining OCPA, he practiced law in Oklahoma City. His work included representing the criminally accused in state and federal courts. Ryan is active in the Federalist Society, serving as the Programming Director for the Oklahoma City Lawyer’s Chapter. He holds a B.B.A. from the University of Oklahoma and a J.D. from the University of Oklahoma College of Law. He and his wife, Jaclyn, live in Oklahoma City with their three children.