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July 03, 2009
Prohibitionist WI judge refuses to go along with plea bargain in cannabis case
Posted by Gary Storck
Friday, July 3, 2009
Here is an interesting case headed toward the Wisconsin Supreme Court. A prohibitionist Fond du Lac County judge rejected a plea bargain in a cannabis case, and the county DA is fighting the judge's decision.
Source: Fond du Lac Reporter: click here
July 3, 2009
Can judge reject plea agreement for cases?
State Supreme Court may take county case
By Kevin Murphy
Special to The Reporter
MADISON — Should Wisconsin judges continue to have the unique authority to reject a plea agreement?
That's a question an appeals court has asked the Wisconsin Supreme Court to determine Thursday in a Fond du Lac County marijuana case.
Last year, Circuit Judge Peter Grimm rejected a plea agreement four times that would have reduced a felony marijuana charge against Joshua D. Conger to three misdemeanors. Grimm explained that he was acting in the "public's interest" in rejecting the plea bargain because police didn't agree with the agreement considering it involved 1.6 pounds of pot packaged in 48 "baggies."
Putting the case on hold, District Attorney Daniel Kaminsky appealed Grimm's rejection, claiming it impedes a prosecutor's constitutional authority to charge crimes.
"Prosecutors have the sole discretion to bring, reduce or dismiss charges without interference from the judicial branch. That's the way it works in the federal system and all states that I know of. However, in Wisconsin, the lines have been blurred, and that's what's being addressed here," said Kaminsky in a phone interview Thursday.
Because of a 1978 decision, prosecutors have to explain to judges why they are reducing charges, which judges have interpreted to allow them to accept or reject pleas.
Grimm, who has intervened in the appeal, acknowledges a prosecutor's "unfettered discretion to bring criminal charges," but the discretion to change the charge becomes a shared power between the judicial and executive branches of government under the separation of powers doctrine.
While Grimm was unavailable for comment Thursday, Kaminsky said the separation of powers gives him and not the judge absolute authority to charge a crime throughout the case.
"He can't be judge, jury and prosecutor while wearing the same hat. I'm not saying anything negative about judges, as they're in the same predicament we're in, and I think they would like this resolved," Kaminsky said.
In cases like Conger's, allowing judges to have authority over charging decisions could require district attorneys to prosecute crimes they believe they couldn't prove, said Kaminsky. Prosecutors have an ethical duty under law not to proceed with a case if they can't prove it.
Snipped: Continues at: click here
Posted by Gary at July 3, 2009 09:46 AM
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