“[The prosecutors] will not talk about trying to work deals or do anything by agreement. That could hurt my clients,” Stone said, according to court transcripts. “Therefore, I have a duty to my clients, since that’s the way they’re going, to not let that hurt you.”
The judge assured the woman she would get help — but Stone would no longer be the one to provide it.
The defendant was among more than 10 clients Stone was forced to give up as a result of a targeted policy devised by Tom Green County prosecutors, according to a federal lawsuit filed in October. The complaint names district attorneys Allison Palmer and John Best and accuses their office of silencing Stone’s First Amendment views and retaliating against her for making the argument in a separate appeals case that plea bargains are unconstitutional. The lawsuit seeks damages, a jury trial and an injunction to prevent the county from continuing to enforce the waiver requirement against Stone.
Stone told The Washington Post in an email that the prosecutors are exercising a kind of power they were never meant to have.
“In this case, the DA is saying, ‘we are going to dictate the legal arguments you can make, and if you don’t agree we’re going to make sure that your other clients don’t have the same right to justice as everyone else,’ ” Stone wrote. “They are trying to make me sell out one of my clients to do a good job for the others, and I won’t do that.”
Tom Green County prosecutors have until Friday to file in support of their motion to dismiss the case, after which a federal judge will decide if Stone’s case will move forward. The Tom Green County District Attorney’s office did not respond to several phone and email requests for comment, but have previously denied Stone’s claims and seek to have the case dismissed.
“There’s a long history of attacks on plea bargains, and there’s a long history of affirming them,” Palmer told Texas Lawyer in October.
If a judge decides Stone’s complaint can go forward, the case could serve to shape the court system’s evolving view of plea bargaining. Much like the cash bail system, plea bargaining has been upheld by years of rulings but faces growing scrutiny for the ways in which it creates disparate impacts in the criminal justice system.
In typical plea deals, prosecutors offer incentives such as lesser charges or shorter sentences in exchange for a defendant’s guilty plea. The practice has been upheld by the U.S. Supreme Court in cases dating back to the 1970s, said R. Michael Cassidy, a law professor with Boston College who researches prosecutorial ethics.
“The Supreme Court has said that both sides get something out of plea bargaining,” Cassidy told The Post. “It’s a negotiating contract: The DA gets a certainty of a conviction, and the defendant gets something off their sentence.”
Prosecutors are motivated to strike plea deals to avoid a lengthy or costly trial or to spare victims the trauma of testifying. Other times, defense attorneys may seek them if their client faces long odds of acquittal.
But plea deals are also criticized as a coercive, overused tool that can open the possibility of a wrongful confession. Defendants who have already languished in pretrial detention because of backlogged court systems can feel pulled between facing significantly harsher charges if they do not plead out.
Even the White House weighed in on the arguably coercive nature of plea bargains when President Trump issued a full pardon to former California Republican lawmaker Pat Nolan, who in 1994 accepted a plea deal for political corruption to avoid decades in prison.
The extensive use of plea bargains means only a small fraction of cases in the United States make it to a courtroom. In 2018, just 2 percent of all federal criminal cases went to trial, while 90 percent of them were pleaded out, according to a recent Pew Research analysis of federal data. In state criminal cases, the rate of jury trials was even lower.
One of Stone’s clients is among them. In 2016, Austin Ray Carpenter, 22, accepted a plea deal for an aggravated assault charge after spending nearly a year in jail without a conviction. When he violated his probation the next year, he was given a 13-year sentence.
Stone, who continues to fight Carpenter’s case, sent a March 2019 letter to the Tom Green County prosecutors, who originally tried Carpenter. She informed them of her latest filing and her argument challenging the constitutionality of their plea deals (an appeals court rejected that argument in October, but Stone has another petition pending).
According to Stone’s lawsuit, Tom Green County prosecutors soon refused to negotiate pleas unless Stone signed a so-called “additional admonishment” that included the phrase: “In no way do I believe this defendant’s plea of guilty in exchange for the State’s punishment recommendation in this case to have violated my client’s constitutional rights, including his due-process rights.”
Stone refused and said the ultimatum forced her to withdraw from her cases in the county.
Cassidy, the legal expert, called the prosecutors’ waiver approach a “highly unusual and made up out of whole cloth."
“But given the vast discretion we impose on prosecutors — even if it raises eyebrows — I would be surprised if a judge prevented a prosecutor from doing it,” he said, adding he doubts such a waiver would be enforceable.
Cassidy’s explanation, which mirrored the prosecutors’ arguments, pointed to the DA office’s desire to insulate the office from a situation where after pleading, the defense counsel declares themselves ineffective because they allowed their client to enter into an “unconstitutional” deal.
“It happens sometimes on an appeal where a defense lawyer will admit to a mistake and argue their mistake offers grounds for the client’s appeal,” Cassidy said.
As for Stone, there is nothing unusual or unethical about her arguing that plea bargains are unconstitutional in the Carpenter case while pursuing them for her other clients, he said.
“Lawyers have to represent their defendant’s interest zealously, and one client may benefit from one argument, where another benefits from a contrary argument,” Cassidy said. “It wouldn’t be unethical behavior on [Stone’s] part to sign the admonishment, because she’s not asserting two opposite things in the same proceedings.”
Stone said standing her ground has been difficult and also lonely.
“People will kind of tap me on the shoulder and say they understand privately, but no one will openly come out and say they support me. And I’m shocked by that,” she wrote. “I learned in law school that you make arguments on behalf of clients; you don’t let other people, particularly the other side, tell you which ones to make.”
Neena Satija contributed to this story.