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114. One's view of the prosecutor's responsibilities may be affected by the timing ofthe undisclosed event and the plea. If the prosecutor offers the bargain immediatelyafter learning, say, of a witness's death, one might be unable to conclude that thedefendant has equal access to the information. Cf Virzi v. Grand Trunk Warehouse &Cold Storage Co., 571 F. Supp. 507, 512-13 (E.D. Mich. 1983) (setting aside a civil set-tlement because the attorney failed to disclose the plaintiffs death during a three-weekperiod between mediation and agreement to settlement). Yet, if significant time haselapsed, defense counsel can more easily be blamed for failing to learn the information.
JUSTICE IN PLEA BARGAININGtheories are to work."'C. Confronting Inequality in the Treatment of DefendantsWe have already noted that one justification for plea bargain-ing is that bargaining enables prosecutors to equalize treatmentamong similarly situated defendants."' But let us assume,probably accurately, that many prosecutors do not see equaliza-tion as their primary charge. Under the other theories of pleabargaining, should a prosecutor nonetheless take into accountthat a maximum plea offer, if accepted, will result in a guiltydefendant receiving worse treatment than other equally guiltydefendants?"7Consider this case:A prosecutor knows that his office has adopted a new, unpub-lished policy of not taking cases to trial in which spousalabuse is not confirmed by medical evidence-such as those inwhich the wife has complained after her injuries have disap-peared. Defense counsel does not know of the policy.Should the prosecutor quickly offer and accept the maximumplea she can obtain?What makes this case different from some of the others dis-cussed is that the prosecutor's choices here are between accept-ing a plea from a presumably guilty defendant and living with aAlternatively, the key may be whether the deceased witness is peculiarly withinthe prosecutor's control; for example, a police officer. In contrast, if the witness is a rel-ative of the defendant, one might well argue that the prosecutor's informational advan-tage simply reflects better preparation than the defense-a reality that mdy exist withrespect to many plea bargains.115. In the civil context, lawyers ordinarily would not consider disclosing items notlegally required to be disclosed. Some courts, however, have challenged this vision oflawyering. In Virzi, for example, the court set aside a settlement because of oneattorney's violation of his alleged "ethical obligation" to disclose the death of his cli-ent before finalizing the settlement. Virzi, 571 F. Supp. at 512; cf Southern Trench-ing, Inc. v. Diago, 600 So. 2d .1166, 1167 (Fla. Dist. Ct. App. 1992) (reversing a juryverdict because of an attorney's failure to disclose his client's separate accident, priorto trial, involving the same injuries at issue).