Prosecutors, defense attorneys say plea agreements are necessary

Jacovan Bush, 24, of Fairfax, is sentenced to life in prison in 2008 for killing Thomas Horvath, 19, but the conviction was overturned on appeal and instead of a retrial, he was offered a plea deal for 25 years.

Lee Muldoon, 28, of Coggon, and Brianna Volesky, 23, of Cedar Rapids, initially faced first-degree murder in the death of Volesky's 2-year-old daughter, who was beaten and died, but both were offered plea agreements in 2010, receiving 10 years in prison. Muldoon is already out on parole, but Volesky had additional drug convictions and remains in prison.

Toshiki Itoh, 50, a former University of Iowa pathology professor, charged with sexually assaulting his lab assistant, was offered a plea to a lesser charge in 2011 after his trial resulted in a hung jury. He would have received 10 years in prison if convicted on the original charge but he received probation with a plea.

Some may think the plea agreements seem unfair or unjust, but prosecutors and defense attorneys say there are valid and practical reasons to offer and accept pleas. The four cases referenced had witness issues or risk factors in going to trial or being retried in two of the cases. Other reasons cited include juries are unpredictable, reluctant or uncooperative witnesses, re-traumatizing a victim, no physical evidence, lack of witnesses, a defendant's preference and expenses of trials.

Few cases reach trial

Assistant Linn County Attorney Jason Burns said 1 percent to 2 percent of cases go to trial.

“There were 803 felony cases filed in 2012 (in Linn County) and there are five (prosecutors),” Burns said. “There's no time to try all the cases. It's like (a hospital) triage, we have to take the most serious and make pleas in the other cases. It's not like the (less serious) crimes aren't important, but we can't possibly have that many trials.”

Tyler Johnston, Assistant Linn County Public Defender, said plea agreements are a necessity.

“Look at what happened in Johnson County,” Johnston said. “The residents of Johnson County didn't want to spend the money on a new jail but they want to complain whenever a prosecutor makes a plea deal that keeps someone out of jail. Can you imagine the extra cost and strain on residents if every case went to trial?”

First Assistant Linn County Attorney Nick Maybanks said about 90 percent of the time the state and defense can agree on a resolution. Many cases involving lesser crimes and first-time offenders wouldn't provide a better resolution or higher penalty even if the defendant goes to trial, so it just makes sense to streamline those.

“There's always a risk going to trial,” Maybanks said. “If it's possible, we may offer a lesser charge but make sure there's jail time, restitution to the victim and probation.”

Burns said many times there can be extra penalties or additional protection for the victims of violence by ensuring the plea will allow sentencing enhancements if a defendant is a repeat offender or a sexual predator, which will increase prison time.

Mark Brown, defense attorney, who handles many sexual abuse cases, said those can be the toughest for trials because there's usually no witnesses and it's “he said, she said.” There are many things that can't be brought up in a sexual abuse trial regarding the alleged victim.

Brown said of course, with all trials there's the expense to consider, especially if expert witnesses and private investigators are needed.

Plea agreements allow the client to be more directly involved, as opposed to in a courtroom trial where they are more like a spectator because of the rules and court procedures, Brown said. There are also no “unknowns,” it a final result.

Johnston agreed, saying a defendant who may be innocent might take a plea deal to avoid the possibility of conviction at trial.

Practical solution

Linn County Attorney Jerry Vander Sanden said attorneys have to be practical in getting the best resolution. As much as he wanted to try Jacovan Bush again, he knew it would be a risk. The conviction was overturned on appeal based on inadmissible testimony of three witnesses. The material witnesses identified Bush as the shooter to police but then recanted those statements before trial.

“After losing a big part of the case, the defense asked about a plea, and I had to consider one,” Vander Sanden said.

Vander Sanden discussed the plea and risks of going to trial again with Horvath's family and they eventually accepted it because they didn't want him to go unpunished.

“It's difficult because you want to hold them accountable,” Vander Sanden said.

Maybanks said those are never easy. His tough one involved 2-year-old Skylar Inman, who was beaten and died in 2008. Her mother, Brianna Volesky, pleaded guilty to lesser charges in exchange for her testimony in the trial of her ex-boyfriend Lee Muldoon, charged in Skylar's death with first-degree murder and child endangerment causing death.

During Muldoon's 2010 trial before Volesky was to testify, Maybanks had to inform the court of a possible case of perjury involving Volesky lying about her drug use, which her grandmother had testified that she wasn't using drugs.  Maybanks said he had no choice but to offer the plea because her credibility as a witness would be questioned. He then offered Muldoon the same plea agreement that was given to Volesky.

Johnston maintained Muldoon's innocence throughout the trial and still does today. He said after Muldoon's plea that Muldoon only admitted he didn't protect Skylar and the plea was a better possibility than life in prison.

“The decision is always the client's, and many times, like that one, it was a difficult, heart-wrenching decision,” Johnston said. “It seemed wrong at the time, but now that he is out and doing so well, now it seems like the right decision.”