C.J. Marshall: Significa: A DA's lot is not a happy one
Bradford County District Attorney Daniel Barrett recently drew some flack in the media due to a proposed plea deal between his office and a man accused of threatening a Canton police officer.
In a story published by The Daily Review on May 8, Canton Police Chief Doug Seeley expressed his displeasure with the proposal, stating "I'm not happy with the outcome of it."
The case involves John Edward Gundaker, 44, of Canton, who has been charged with threatening a Canton police officer following a high speed chase through the borough on April 26. After being taken into custody, Gundaker was transported to Robert Packer Hospital for treatment of injuries. While there, also according reports, Gundaker became combative with medical personal and had to be sedated. During this incident, the accused reported told a police officer: "you're mine. I know where you live. They can't hold me forever."
In addition, Gundaker is also accused damaging the inside of a police cruiser and spitting on an officer while being transported to the Bradford County jail on April 27, requiring him to be secured in a spit hood, according to reports.
Gundaker has been charged with making terroristic threats - a first degree felony - for what his alleged threats to the police officer at the hospital. However, the district attorney has offered the accused the option of pleading to a lesser charge of fleeing or attempting to elude a police officer - a third degree felony - in exchange for having charge of terroristic threats and others dropped.
Before I get to the matter at hand, I want to emphasize here that I completely empathize with Chief Seeley on the matter, and understand why he would publicly express his frustration about the situation. As the line goes in the Gilbert & Sullivan operetta "A policeman's lot is not a happy one," and it doesn't get any easier when an officer is threatened by a suspect; and then to later see the suspect not be punished for such actions.
However, I can also see the situation from Mr. Barrett's point of view, and can understand why he would offer a plea bargain to Gundaker, even when at first glance it seems like an open-and-shut case. Because, unfortunately, life is often not that simple.
If the district attorney decided to prosecute Gundaker to the fullest extent of the law, then it would be practically a certainty that he would decide to have his day in court over the matter. After all, under such circumstances, what would he have to lose? His attorney would present his side of the case to the jury, and there is always the possibility those 12 men and women would acquit him of ALL the charges filed against him.
For those of you who are saying right about now "No way could that happen," I reply, "You don't get out much, do you?" Because I have attended many jury trials as a reporter over the years and can attest that such things do happen - and more often than we like to think.
There have been many times when I've watched as a prosecutor presented an airtight case against the defendant in which the evidence against the accused was damning, and still the jury refused to convict. One case which stands out in my mind was a murder trial that occurred many years ago in Northumberland County. The DA built a solid case, presented witnesses, all who provided good testimony, as well as irrefutable evidence, and still the jury acquitted to accused. After the trial was over, one juror was asked why they voted to acquit, the reply was "Oh he (the defendant) couldn't possibly have done it. He's too nice."
Yeah, I shook my head when I heard that one too. But it underscores a problem that all prosecutors face whenever they go to trial - namely that they have to convince ALL 12 members of a jury of the guilt of the accused; and at the same time, overcome any prejudices and idiosyncrasies that each of those members may harbor.
I recall one time covering a homicide trial that took several days. Each time, the judge carefully instructed the jury members not to form any opinions about the case. Toward the end, I spoke the judge and asked him - a bit wryly, I'll admit - how do you stop a person from thinking. He smiled and admitted it is a very tough thing indeed.
Closer to home, I covered a case in Bradford County a number of years ago in which law enforcement officers were not only threatened by the accused, but assaulted them as well. During the trial the defense made no attempt to contest the incident in court. It seemed as if there was no way the prosecution could lose. Evidence was presented properly, all witnesses involved - including several police officers - gave good, solid testimony as to what occurred. And yet, the jury voted for acquittal on all charges.
Funny thing about that one. Right at the conclusion of the trial, a juror spoke to one of the officers involved in the incident as said if they (the officers) had shot the defendant during the altercation, they (the jury) would have been in complete agreement over the action. But the jury just could not bring itself to vote for conviction.
I can't go into specifics, but I can tell you that the defense attorney overcame the facts of the case by appealing to the jury's emotions. Enough people on the jury allowed themselves to be swayed by this, even though the evidence against the defendant was damning.
It's often sad, but I have seen a number of times when a jury allows itself to be influenced by such factors as "extenuating circumstances," and in doing so, allow the accused to get off scot-free, causing extreme frustration for all the law enforcement personnel involved in the case. I've heard prosecutors express concern about people serving on juries who will not vote for conviction, unless God tells them that the accused is guilty.
These people can be more influential than what you may think at first glance. In order for a prosecutor to obtain a conviction, he must get all 12 jury members to vote for it. If one person votes against it, and won't budge, then a mistrial is declared. True, the accused can be retried, but that requires the district attorney to spend even more time and money on that particular case - with no guarantee of a conviction.
But even more subtle is the fact that people often follow a "herd instinct" in such circumstances. More often than you might think, one or two jurors will form their opinions of the case early during the trial, and hold fast to them, no matter what evidence is presented. When it comes time to vote, the minority will often hold up the proceedings, because they refuse to vote with the rest of the jurors. Up to that point, that's fine - it's one of the strengths of our jury system. However, there have been many times when a majority of jurors will switched their votes; not because they agree with the opposition, but instead simply because they want to conclude the trial quickly so they can go home. And more often than not, the vote is to acquit, as opposed to conviction.
These and other factors are what Dan Barrett and every other district attorney must contend with each time they go to trial. As a result, they must give careful consideration to each case - even the ones where it appears at first glance that they couldn't possibly lose - and decide what would be the best course of action to take. Sometimes, in order to guarantee a conviction, a district attorney must offer a plea bargain to a defendant, even if such an action is distasteful in the extreme to those involved in the case. Because, no matter how strong a case, and how irrefutable the evidence a prosecutor may possess, there's no guarantee that he will obtain a conviction from the 12 individuals sitting in the jury box.
C.J. Marshall is a writer and columnist for The Daily Review. His email is email@example.com.