The Watcher Cat

The Watcher Cat

Thursday, September 23, 2010

A Big Break, But Not a Pass

There's been a fair amount of confusion over what happened in the Colorado Springs case of Father Don Armstrong's is-it-or-isn't-it a guilty plea. Most of that confusion stems from a since-removed statement in support of Father Armstrong claiming vindication. Of that, more in a moment.

However, the actual plea agreement is online, which allows for greater clarity. Armstrong pleaded nolo contendere (that is, no contest), to one of the felony charges,theft in the amount of $15,000 or more. On that charge, he will receive a deferred sentence (which, if he completes 4 years of probation successfully, would result in this count's eventual dismissal and expungement).

He also agreed to enter what is called an Alford plea to a non-charged misdemeanor, for which he will be sentenced. There is no factual basis for the misdemeanor in the indictment; the factual basis for the felony to which he is pleading are the facts in the indictment.

So, what does this mean? First, the misdemeanor plea is not based on the charges, which were all felonies. It is a device, I suspect, to allow for the imposition of some criminal sentence, and to allow Fr. Armstrong to serve less than a year. In other words, the prosecutor refused to let him simply receive probation, and Armstrong accepted that. (Mind you, under the agreement Armstrong's counsel can urge the court for a non-custodial sentence, so he still has a shot of not serving any time. But the prosecutor hasn't consented to such a disposition).

Second, as he Supreme Court of Colorado has explained:
A nolo contendere plea, also called a no contest plea or plea non vult contendere, literally means “I do not wish to contend.” Black’s Law Dictionary 1074 (8th ed. 2004). Nolo contendere is a common law plea. Hudson v. United States, 272 U.S. 451, 453 (1926); Young v. People, 53 Colo. 251, 125 P. 117
(1912). In its early form, the plea was considered an implied confession of guilt entered only with leave of the court in light misdemeanors. K. A. Drechsler, Annotation, Plea of nolo contendere or non vult contendere, 152 A.L.R. 253 (1944). In
modern usage, a plea of nolo contendere is considered substantially, though not technically, a plea of guilty acceptable for a variety of offenses. Id. at 25657.
. . . . Nolo pleas may also be referred to as “Alford” pleas, originating from the United States Supreme Court decision in North Carolina v. Alford, 400 U.S. 25 (1970). There, the Court held that a defendant could plead guilty while protesting his innocence so long as his plea was constitutionally valid. Alford, 400 U.S. at 31; see also ABA Standards, supra, at§ 141.1(a) commentary at 14.
People v. Darlington (Sup. Ct. Colo. 2005). (Slip Op. at 6-7).

As the Darlington Court goes on to clarify, "The sole distinction we have made between a guilty plea and a plea of nolo contendere is that the latter gives the defendant the advantage of not being estopped from denying her fault in a civil action based upon the same facts." (Slip. Op. at 8). This will give Armstrong the ability to deny liability in a civil trial if TEC or the trustees sue him civilly, but is otherwise a meaningless distinction. While he will not have to admit his guilt, he will have to admit that the prosecutor could adduce sufficient evidence to permit a jury to convict.

The Darlington Court further explains the purpose of deferred sentencing; it is "to grant the court the power to impose alternative sentences benefiting the defendant where the interests of justice would be served." (Slip Op. at 12). Many states have similar provisions to allow for the rehabilitation of a defendant whose guilt is provable, but the devastation of whose life wrought by full criminal conviction is excessive in light of the goals of the criminal justice system. (I authored, in 1994, a full length study of New York's "Interests of Justice" dismissal remedy, which you can find here).

In this case, it looks to me like the prosecutor was willing to give Armstrong a heavy break, but not a pass. Under the Agreement, he has to pay restitution in an amount to be set by the Court, which could obviate the need for any civil litigation. If he behaves for four years, he won't be a felon, with the attendant impact on career and civil rights that entails, but will be a convicted misdemeanant, an adjudicated criminal. This is actually a fairly reasonable resolution of the case; Lord knows I don't like Don Armstrong, but making him pay back the money while giving him a chance to resume his life, while holding him accountable to the law, and pronouncing the community's judgment on his actions seems to me to temper justice with mercy.

Of course, the prosecutor may use his parish's claim of vindication as evidence that he is not taking responsibility for his actions, and argue for a higher sentence within the range of the Armstrong may actually come to regret that misleading effort at spin.

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