Justice on the Cheap
Pleas are a moneymaking venture for Greene County. Most defendants avoid prison time in exchange for paying county fines and surcharges, which sometimes amount to $100 a month for years. As in other states, a judge can sentence a defendant who either ignores his pay schedule or fails to explain to the court that he can't afford to pay to a "diversion center," where he is required to work for money that is automatically turned over to the county.
Surrency, the judge and the prosecutor form a triangular tag team that pushes people to accept pleas so a full-blown trial can be averted. But even plea agreements require spending time with a client. Missing in Greene County is the ration of justice that is supposed to be meted out between the time of being charged and sentenced, when it becomes clear whether the defendant was the ringleader or acted with intent--the distinctions that make the difference between a severe sentence and a lenient one, or none at all. It can happen in court or out, under the watchful eye of a judge who can make inquiries and pressure lawyers, or in a phone call between the defense lawyer and the prosecutor. If the adversaries can't agree on a "fair" plea, one side holds out until the other blinks, or they duke it out in trial, where relevant facts are the grist for a good defense. "The criminal justice system does a huge amount of sorting out once guilty," says Steve Bright, director of the Southern Center for Human Rights in Atlanta, who worked as a public defender in Washington, DC, for three years. "Whether it's probation, death penalty, boot camp, the punishment depends on the nature of the act." But not in a low-budget contract system.
With his scruffy, uncombed red hair and rumpled clothes, Robert Surrency appears either distracted and professorial, or jaded and tired. "We have successfully done a ten-page calendar in one day," he boasts. In two days, Surrency pleaded forty-eight people, which he refers to as "a uniquely productive way to do business." "No defendant wants to go to trial, because of the possibility that you look more guilty than you really are," Surrency said, explaining that most cases are really "open and shut." However, Marie Boswell, former clerk of the court where he operates, knows otherwise. "We are going to get hit with a lawsuit one day that is going to rock the world."
Watching the proceedings intently in the last row is "H.," 28, a heavily built black man with a shaved head, charged with aggravated assault and battery. H., a restaurant manager about to start nursing school, has never before been in trouble with the law, but his crime is grim. In October he ran his car over his then-boyfriend, ripping off one of his ears. Ben Mitcham Jr., the laid-back assistant DA, initially offered five years in prison and thirty years' probation.
What Mitcham didn't know, because Surrency never raised it, was that H., who is HIV-positive, claims that the victim knowingly exposed him to the virus without telling him. In addition, H. says his crime was without intent: The two were sitting in a parked car arguing and in the process of breaking up when H.'s boyfriend walked off down the highway. "I guess I panicked," he says. "A lot of emotions were going through me. And I don't know how to drive." (H.'s former boyfriend declined to comment for this story.) Mitcham, informed of these facts, said that had he known there was a possibility that H.'s crime was done "in the heat of passion," he would have thought about the case differently. "I didn't make my offer with that knowledge. I wish I had known," he said.
Because an assistant district attorney in a nearby county vouched for H. as a good citizen, Mitcham changed his original offer from five years in prison to five months in a detention center plus ten years' probation. H. says he knew he had to pull some strings after Surrency never returned his phone calls: "I bet if [his clients] all lined up in a lineup he couldn't pick a person out."
Similarly, Mitcham was unaware of the circumstances of Tasha McDonald's crime when he made his offer to her. McDonald is a single mother of three girls, the eldest of whom, Victoria, 10, is an honors student who suffers from muscular dystrophy. At the time of the crime McDonald was in school full time and working in the office of a local resort. There she stole a co-worker's credit card number to buy sheets, dishes, a microwave and a CD player from Sears. "Everything for the house," she says. "I was desperate at the time for me and my kids' sake." Since then she has repaid the money and started a new career as a phlebotomist, a specialist in drawing blood at a hospital. Mitcham, however, after consulting with the victim, offered three to four months in a detention center, which McDonald rejected for fear she'll lose her job and have her children taken away. "I'll lose my home," she says. "Give me fifty years' probation. I just can't be taken away from my kids." In a subsequent interview, Mitcham said he had no idea McDonald had a disabled child. "I am shocked," he said. "That would have made a difference in terms of her remaining in the home."
Surrency sees the problem as the defendant's misunderstanding of how the process works. "She didn't like me telling her what the state offered--as if I were working with the state because I was communicating with the client for the state," he said. The judge rescheduled McDonald's case to be heard in May. McDonald has since fired Surrency and hired private counsel.