Content warning: This article contains brief references to the sexual abuse of children that some readers may find upsetting. Discretion is advised.
Watch popular television dramas about the criminal justice system and you’re likely to see an arrest, trial, and conviction take place within one hour. Reality works a little differently, of course, and aside from legal proceedings taking months or even years, not every criminal case goes to trial. Some are dismissed for lack of evidence or difficulties securing witness testimony, but many others end with agreements between prosecutors and defense attorneys.
Boomtown has recently reported on two cases involving the rape of children that ended with plea agreements. In one case, 26-year-old Adrian Ferran, who is referred to in some court records as Adrian Pizana-Ferran, accepted a plea agreement in a case where he was accused of taking a 14-year-old girl off the Los Alamos High School campus and raping her. In a separate case, 37-year-old Shawn M. Cavasos accepted a plea agreement in a case involving the rape of a 15-year-old girl.
As part of a plea agreement signed in July, Ferran pleaded guilty to felony counts of criminal sexual penetration and contributing to the delinquency of a minor. He received a suspended sentence and was ordered to register as a sex offender.
Cavasos in March pleaded guilty to felony counts of criminal sexual penetration of a child and contributing to the delinquency of a minor. He received probation and was set to receive a conditional discharge, but Cavasos violated the terms of his probation in May and is now set to be sentenced next month for the violation.
What determines if a defendant is offered a plea deal or not is a nuanced process, and no plea agreement is made using a flow chart or a formula. Each deal is, at least partially, unique and the terms of each agreement could come with a variety of stipulations. In deciding the details of each agreement, prosecutors weigh things like the quality of evidence available and the credibility of witnesses against the mental anguish that a trial might cause the victim. In many cases, agreements are offered to prevent victims of crimes from having to relive trauma sustained during the crime; however, there are times that the evidence in a case, or lack of it, can push a prosecutor toward accepting a deal.
Cases involving sexual assault and rape are some of the most difficult to prosecute, especially when they involve children or young people, according to Robert Willett who has worked in the criminal justice system for more than forty years. He hasn’t been involved in any cases in Los Alamos County, but Willett has previously served as the district attorney for Colorado’s Twelfth Judicial District, which covers six counties along the Colorado-New Mexico state line, and he currently works as a prosecutor in Fremont County, Colorado.
Willett told me that for any prosecutor evaluating a case, the first step in deciding whether to go to trial or negotiate a plea deal depends on the evidence available. The reality is that in many cases, the available evidence may not be enough to ensure a conviction at trial.
“Not every case has DNA, fingerprints, laser spectrometry — all this fancy stuff,” Willett said. “Sometimes it’s just a ‘he said, she said’ kind of thing.”
Even when there’s strong evidence available, taking a case to trial isn’t always an attractive option because presenting a case to a jury comes with risks, and there’s never a guaranteed outcome. Willett told me that he prosecuted a case where the defendant had been captured on surveillance video committing a crime, yet the jury did not convict.
“Any prosecutor who’s been doing this for any amount of time will tell you there’s no such thing as a slam-dunk case,” he said. “Oftentimes, it can be derailed for reasons not really related to the evidence per se, but other factors: procedural issues, victim credibility, witness credibility, [or] the law enforcement investigation.”
Not every trial ends with a jury finding a defendant “guilty” or “not guilty” either. Because every single member of the jury must agree there’s no doubt as to the defendant’s guilt, if even one person has a fragment of doubt, the trial ends without a conviction. Prosecutors must then decide whether to begin the entire process over and hope that a different jury comes to an agreement or move onto other cases. Even with strong evidence, that can be a gamble.
Failing to obtain a conviction can be a blow to any prosecutor’s ego, sure, but it also means that taxpayer dollars were spent for salaries of court officials and for covering the expenses of jury members. Even if a prosecutor has the option to retry the case, it may not be financially viable to do so.
Many prosecutors consider these factors, but most also weigh them against other concerns, like forcing victims to relive traumatic experiences by testifying against the person who victimized them. When a case goes to trial, the victim must sit before a courtroom filled with strangers and loved ones alike, and there — in front of everyone — they must talk about very personal things that happened to them. This can be especially upsetting for those who have endured sexual assault or rape.
Willett told me that, before deciding to take a case to trial, prosecutors must look at factors like how well a victim of a crime will hold up to prolonged attacks from defense attorneys during lengthy trials. In some cases, a victim could be on the stand for as long as five hours at a time, repeatedly discussing traumatic events that occurred at what is often the nadir of the person’s life.
Jury selection is a key factor too. When deciding whether to take a case to trial, a prosecutor must weigh factors like the backgrounds of potential jurors and how they are likely to view certain crimes. Juries also differ greatly from location to location, and presenting a case to a jury in a small town is vastly different from trying a similar case in a large city.
The big ‘appeal’ of plea deals
If a prosecutor takes a case to trial and gets a conviction, the defendant always has the option to have the case reviewed by other courts, and in some cases, appellate courts overrule decisions made in lower courts.
A defendant can file an appeal for a variety of reasons, challenging things like the manner evidence was collected, tactics used by law enforcement during the investigation, or technical errors with how discovery items were presented to lawyers. Even the slightest procedural error can result in a retrial, and if a case is retried, the victim is again forced to relive the crimes committed against them — again forced to revisit personal traumas inside another courtroom full of strangers.
Conversely, if a plea agreement is accepted in the case, most come with a provision that the defendant cannot appeal the decision, meaning that once they agree to the terms and a judge signs off, the case cannot be taken to a higher court for review.
“If you plead a case out, there’s very little the defense can appeal,” Willett said. “Generally speaking, once they sign that plea agreement and the judge sentences them, there’s not a lot left to appeal.”
The anatomy of a deal
A plea deal can be offered in any criminal case. Once criminal charges are filed against a defendant, that person’s attorney can approach the prosecuting attorney and begin negotiating a deal. In rare instances, a prosecutor may approach the defense attorney first. Either way, once an agreement is reached between both sides, it’s presented to the judge who’s presiding over the case, and as long as the judge finds the terms acceptable, the defendant is sentenced based on the punishment laid out in the agreement and the case never goes to trial.
Any plea agreement typically results in a defendant pleading guilty to at least one crime, but other charges may be dropped in exchange for the guilty plea. Some plea deals send defendants to jail or prison for a set time, others come with probation or suspended sentences.
In cases involving sex crimes, it’s common that a defendant will be required to register as a sex offender as part of the plea agreement. In some cases, the defendant will serve some prison time and be required to register after release, but in other cases, the defendant might receive probation or a suspended sentence but must still register as an offender.
While this outcome often falls short of the version of justice that victims, their family members, and often the general public, hoped for, Willett said that from the prosecution’s point of view, these provisions assure the prosecutor gets something out of the case.
“Any felony conviction is going to have a detrimental effect on your life,” he said, “but with a felony sex offender conviction, you have to register ... multiple times a year, and if you don’t, that’s another felony charge.”
Probation and suspended sentences provide an offender a second chance and the opportunity for rehabilitation. However, the reality is that many won’t successfully complete probation, and when they don’t, probation violations typically come with punishments, and sometimes new criminal charges are added.
Willett told me that, oftentimes, prosecutors have an innate sense for which defendants will complete probation, and which ones will be back in a courtroom.
“You get a feeling whether someone can hack it or not, and so sometimes it is just a matter of giving them enough rope to hang themselves. It’s kind of a jaded way of looking at it, but you do develop a sense for who you think might make it through probation,” he said. “I always wish that everybody makes it through probation. It’s not like I get paid more if they don’t. I hope they do change their lives. That’s the whole point.”