114 Ones view of the prosecutors responsibilities may be affected by the timing

114 ones view of the prosecutors responsibilities may

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114. One's view of the prosecutor's responsibilities may be affected by the timing of the undisclosed event and the plea. If the prosecutor offers the bargain immediately after learning, say, of a witness's death, one might be unable to conclude that the defendant 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-week period between mediation and agreement to settlement). Yet, if significant time has elapsed, defense counsel can more easily be blamed for failing to learn the information.
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JUSTICE IN PLEA BARGAINING theories are to work."' C. Confronting Inequality in the Treatment of Defendants We have already noted that one justification for plea bargain- ing is that bargaining enables prosecutors to equalize treatment among 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 plea bargaining, should a prosecutor nonetheless take into account that a maximum plea offer, if accepted, will result in a guilty defendant receiving worse treatment than other equally guilty defendants?" 7 Consider this case: A prosecutor knows that his office has adopted a new, unpub- lished policy of not taking cases to trial in which spousal abuse is not confirmed by medical evidence-such as those in which 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 maximum plea 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 a Alternatively, the key may be whether the deceased witness is peculiarly within the 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 with respect to many plea bargains. 115. In the civil context, lawyers ordinarily would not consider disclosing items not legally required to be disclosed. Some courts, however, have challenged this vision of lawyering. In Virzi, for example, the court set aside a settlement because of one attorney'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 jury verdict because of an attorney's failure to disclose his client's separate accident, prior to trial, involving the same injuries at issue).
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