PLEADING WITH THE DISTRICT ATTORNEY

The Milwaukee County District Attorney's Office has offered Michael L.
Wilson a take-it-or-leave-it plea bargain on a charge of misdemeanor
marijuana possession: 30 days in jail and two years' probation.

If Wilson refuses the deal, the DA will withdraw the misdemeanor charge and
re-file as a felony, says Harvey Kincaid, Wilson's lawyer. If that happens,
the DA will also add a penalty "enhancer" for being within 1,000 feet of a
school, day care facility or park. If that happens, Wilson would face a
three-year mandatory prison sentence.

"Unless an attorney has a perfect case, he's got to advise the client to
take the deal," Kincaid says.

Kincaid is not the only local lawyer complaining that what is happening to
Michael Wilson is "not appropriate." The concern is the way the DA's office
is operating, it stacks the deck against small-time pot users forcing them
to plead guilty to a criminal charge. It's becoming a common practice in
the DA's office some defense attorneys say.

Milwaukee attorney Alex Flynn calls the procedure "Orwellian" and sees the
problem with the legislature.

"What they will do is charge a case with possession with intent to
distribute," Flynn says. "Then they'll say, 'Here's the bargain.'

"If you refuse, they'll add enhancers-within 1,000 feet of a school or park
or day care facility.

"Virtually anywhere in the city is within that area. People who have a
legitimate case are afraid to fight."

It's ironic that this strategy is now coming from a DA's office that
several years ago argued pot possession should be decriminalized so that
smokers who are busted wouldn't get a criminal record, which would hang
with them for the rest of their lives.

Wilson, who has no prior convictions and pays child support for two kids
living with their mother, makes about $300 a week. Wilson was busted after
cops saw him passing a joint. Cops found 20 grams of pot on him during a
search. The lawyer fees will cost Wilson several months' of mad money and
still he has to do jail time either way.

"It's a crying shame the way they treat me," Wilson tells Shepherd Express.
"This is a weed case, not a cocaine case. People who are driving drunk get
less time than this."

Attorney Kincaid, who just graduated from Marquette Law School in June,
says his education never prepared him for the reality of the criminal
justice system. "It's all subjective. The DA has the option of tying the
defense attorney's hands."

Asked whether his office has a policy of threatening to charge a higher
crime unless a defendant buys the state's misdemeanor deal, Tom McAdams,
who prosecutes misdemeanor cases in the DA's Metro Drug Unit, says flatly,
"I would say, no."

"But sometimes it may happen. I'm not justifying this. The DA still has to
take it to court, and also the person might move for dismissal.

"This is the criminal justice system, not a football game," McAdams says.
"Congress and the legislature said they want drug free school zones."

But Kincaid has a different take.

"What hits me is seeing this on the individual level. They're just sending
black men to jail."

Flynn says plea bargaining used to be legitimate-"There might be genuine
substance in the case."

"It is the prosecutors doing it, it is the legislators giving them the
tools to do it. In the past the prosecutor and defense attorney would get
together and have a discussion. Now, they say, 'If you don't take this,
we'll hit you.' "

And they can hit hard because the Legislature wants them to. The three-year
mandatory minimum penalty enhancer, coupled with the state's
truth-in-sentencing law means there is little room for the defense to bargain.

"The consequences of the minimum mandatory sentences for drug cases coupled
with the truth in sentencing guidelines result in the prosecution having an
unbelievable arsenal of weapons at its disposal. The effect is that people
are intimidated from going to trial. We have to seriously examine if this
is a cost effective way of deterring the drug problem," Flynn says.