Politics & Government

Yes, rich people have a better chance of getting off in court, public defender says

The Mecklenburg Public Defender’s Office has launched a legal attack on a deferred prosecution program offered by prosecutors that the public defenders say discriminates against the poor.
The Mecklenburg Public Defender’s Office has launched a legal attack on a deferred prosecution program offered by prosecutors that the public defenders say discriminates against the poor. Observer file

Rahman Bethea says he had a chance to get his life back. But he came up $800 short.

Now the Charlotte man is at the center of an unusual court fight that broaches a sweeping criminal justice debate: Do people charged with crimes have a better chance of getting off if they have money?

In March 2016, Bethea, an audio-visual technician working at the Sheraton hotel near uptown, was charged with embezzling components and electronic devices. He says his first-ever arrest cost him his job, his home, his car and his son, who had to join his mother in Pennsylvania because Bethea says he could no longer afford to take care of him. Bethea was homeless for more than a year.

He told a judge on Thursday that he has applied for dozens of jobs, most of which he did not get because “my court date kept popping up” during background checks.

Bethea had one hope. Under a longstanding policy by the Mecklenburg County District Attorney’s Office for first-time offenders of certain crimes, he was offered the chance to enter a “deferred prosecution” program that could lead to a complete dismissal of his felony charge in two years, if he met all conditions.

But there was one big requirement. Defendants must pay down any restitution they owe to $1,000 or below to get into the program. Otherwise they can plead guilty or, if the charges are serious enough, face a jury trial in Superior Court.

Bethea’s restitution was set at $1,899. But he told Superior Court Judge Todd Pomeroy that he could afford to come up with only $100 of the $900 he needed to pay.

When Bethea was arraigned on June 28, his prosecutor told him his only option was to plead guilty to felony larceny or go to trial. Deferred prosecution was off the table – and with it Bethea’s best chance of avoiding a felony conviction. He’s scheduled for trial in November.

During a five-hour hearing at the Mecklenburg courthouse, Bethea’s attorney, Mecklenburg Assistant Public Defender Elizabeth Gerber, said her client’s treatment amounts to selective – and unconstitutional – prosecution, that money was “the determinant fact” and that the criminal charge against him should be dismissed.

She and other members of the public defender’s office said Bethea qualified for deferred prosecution, but, basically, couldn’t afford the entry fee.

“The courthouse is the only place where money shouldn’t matter. It’s one of the foundations of our belief system as Americans,” said Kevin Tully, the county’s longtime public defender, who testified at the hearing. “But money plays too much of a role, on how some people get out of jail and how some people don’t.”

Assistant District Attorney Reed Hunt, however, argued that Bethea had not been treated differently than the hundreds of other Mecklenburg defendants offered deferred prosecution each year. Many successfully complete the program. Others fail for a number of reasons besides the inability to pay down their restitution to $1,000 – the monetary threshold between a felony and misdemeanor charge.

Besides, Hunt told Pomeroy, Bethea’s legal team can’t show that District Attorney Andrew Murray and his staff were intentionally discriminating against poor people, as required in selective-prosecution cases.

“They haven’t carried their burden of proof anywhere, for anything,” he said.

Pomeroy, who regularly interrupted the attorneys with questions or to challenge their interpretations of applicable cases, said he would issue a ruling next week.

The case appears to be the latest example of an ongoing push by the state’s court system to evaluate its basic fairness. The Mecklenburg County courthouse – including Murray and his staff – has become one of the nation’s leaders in examining how such factors as race, economics and implicit bias can influence the course of criminal justice. Deferred prosecutions for juvenile offenders and other non-violent crimes have long been considered effective reforms to reduce caseloads and offer qualified defendants the chance to overcome a mistake.

Yet the head of one legal advocacy group says the county needs to do more.

“The Mecklenburg courthouse at large has been very innovative. What this litigation raises is how far they have to go. Good people can still have bad policies,” said former Charlotte defense attorney Jake Sussman, now managing director of Harvard University’s Fair Punishment Project.

“Felony convictions have myriad ways of impacting your life for the rest of your life. You don’t want people permanently scarred or tattooed by contact with the criminal justice system. Andrew Murray and his office clearly believe that. This is a policy that needs to be broadened or tweaked to take into account the role wealth appears to be playing.”

Hunt, with Murray sitting at his side, told Pomeroy that the requirement for defendants to pay down restitution is not designed to unfairly punish poor defendants. Rather, it’s an effort to protect the rights of victims.

“It seemed like a a reasonable compromise between no restitution or all restitution,” Hunt said. “Victims want their restitution. They are entitled to their restitution. After the fact, there is no real mechanism to get restitution for those who are suffering, who have lost things.”

Bethea, though, said he has lost some things, too. He’s working for just over minimum wage. He has three kids to support. He sold his car so one of them could get braces. He says he often doesn’t have enough money to eat.

Asked if he still wanted a chance at deferred prosecution, Bethea nodded.

“I definitely don’t want to sit in this courtroom again,” he said. “I want to get this over, to get these charges dismissed and get back to my normal life. If they could wipe this stuff out, and I can get a normal job again, I’d be the happiest person in the world.”

Michael Gordon: 704-358-5095, @MikeGordonOBS