EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, February 16, 2008

Let's Make A Deal: Judge Finds Defendant's Statements To State Police Official Don't Constitute Plea Discussions

Brian Dugan is currently on trial for the 1983 murder of 10 year-old Naperville schoolgirl Jeanine Nicarico, and his defense has been dealt a serious setback after DuPage CIrcuit Judge George Bakalis ruled that parts of decades' old audio recordings in which Dugan details acts of sexual violence are admissible .  Dugan is already serving two life sentences based upon two prior murder convictions, and DuPage State's Attorney Joseph Birkett has said that he will pursue the death penalty if Dugan is convicted of killing Nicario.

Those odds increased greatly with Judge Bakalis' admissibility ruling on the tapes, which were recorded during three interviews with state police official Robert Thorud in October 1986 for a state police study of sexual predators.  In the recordings, Dugan does not name Nicario, but he does make incriminating remarks, such as "when I did the others."  Dugan's defense counsel had argued that these tapes were inadmissible, inter alia, because they were part of ongoing plea discussions.  His counsel asserted, "Why else would he be talking to them?"  "To be a good Samaritan?"  Judge Bakalis, however, rejected this argument, finding that the interviews were not part of any protected plea talks.

This ruling makes sense under current plea bargaining jurisprudence.  Under Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(f) (which used to be Rule 11(e)(6)), "any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn" are inadmissible against the defendant who was a participant in the plea discussions.  Illinois has incorporated these Rules into its case law. See People v. Jones, 845 N.E.2d 598 (Ill. 2006). 

Prior to 1979, there was a dispute "over whether these rules operated to make plea negotiations between an accused and law enforcement officials inadmissible or whether they only applied when the discussion was between the accused (or his attorney) and a government attorney." See Colin Miller, Caveat Prosecutor, 32 New Eng. J. on Crim. & Civ. Confinement 209, 229 (2006).  In 1979, however, the Rules were amended so that plea negotiations with law enforcement officials were not covered by the Rules; instead, the Rules only cover "plea negotiations" with prosecutors or those acting with their express authority. Id.

In the Dugan case, his statements were cleary to state police official Robert Thorud, meaning that they did not constitute plea negotiations protected by the Rules (unless Thorud had express authority from a prosecutor, which doesn't seem to be the case).



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