When selling car, even as an amateur, most people know that the asking price should be higher than what they actually expect to get in exchange for the car. This gives them room to bargain downward toward their actual expectation. In this way, they get what they want and the buyer thinks he got a deal. (In true p.c. form, I made that buyer a guy so as not to enforce stereotypes about ladies and car buying.)
Many prosecutors operate in much the same manner as those car salesmen. They charge crimes above and beyond what the facts support so that they have some wiggle room when they get to the negotiating table. At the table, the prosecutor will then offer to let the defendant plead to a lesser charge, one that the prosecutor actually has a chance of proving in court, and act like he is offering a bargain (don’t tell my boss I did this). In exchange for this generous illusory discount, the prosecutor gets to avoid having to prove anything at trial, where there are all these pesky rules of evidence and stuff like the Constitution standing in the way. What a BARGAIN!
And that brings me to blow-up dolls. (I am fighting the urge to make rubber- love-doll jokes. Just know it wasn’t easy). In a recent Indiana case involving a high school senior prank, the prosecutor is putting on his best car salesman impression.
As the Washington Post reported, Tyell Morton, an 18 year old high school student in Indiana, is charged with a felony that carries up to 8 years in prison.
What was Tyell’s crime? As a prank, he placed a blow-up doll in the girls’ locker room at his high school. Doesn’t sound so bad, you say? Well, he also embarrassed some people and cost them money by making them overreact. A janitor saw Tyell fleeing the scene of his “crime” and security footage showed a person in a hoodie and gloves entering the school with a package and leaving without it. Police dogs and a bomb squad were called in to hunt down what turned out to be a sex doll.
Tyell is now charged with misdemeanor disorderly conduct and felony “institutional criminal mischief.” As the media likes to report, Tyrell could be sentenced with up to 8 years in prison, but the prosecutor has already said he won’t be seeking a prison sentence. (I’m gonna knock a few hundred right of the top there, because you know what, I like you.) Like the vast majority of other criminal cases, the case against Tyell Morton is more likely to end in a deal than in a trial. Here, the prosecutor has given himself plenty of wiggle room.
The prosecutor charged Tyell with institutional criminal mischief under Indiana Code §35-43-1-2. From my reading of the statute, the prosecutor would have to prove either:
(1) Tyell knowingly or intentionally caused pecuniary loss greater than $2500 by deception; OR
(2) Tyell recklessly, knowingly, or intentionally “damage[d]” the school in an amount greater than $250.
Assuming the “damage” in (2) refers to physical damage (that’s research beyond my pay scale here) to the building, the prosecutor won’t be able to prove either of those. The first one presents a problem because Tyell did not” knowingly or intentionally” cause pecuniary loss to anyone. The bomb squad and cop dogs were not a result he intended or even fathomed. If this had turned out different and the charge was “knowingly or intentionally caused giggling and blushing in the girls’ locker room,” he would probably be guilty. The second one is a problem because, as I alluded to, there is no indication that there was any physical damage to the building, even if Tyell did “recklessly” execute his delivery of the love doll.
The prosecutor doesn’t even have a solid disorderly conduct charge. The only part of that statute, Indiana code 35-45-1-3 , that is applicable to Tyell’s case is the reckless, knowing, or intentional disruption of a lawful assembly of persons, which Tyell arguably did by accidentally causing cop dogs and the bomb squad to come to the school.
So what we have here is a jalopy misdemeanor with no air conditioning that the prosecutor has priced as a gently used and sporty felony. Now he has room to bargain, and whatever he offers at the negotiating table appears to be a concession on his part. Tyell will probably plead to something that more closely resembles what he did, and the prosecutor will get to avoid getting his hands dirty at trial. But negotiating doesn’t always go as planned.
This sales tactic, unlike the average car deal, could have life-ruining consequences. If the defense decides not to take the “deal”, a judge and/or jury could incorrectly decide that the asking price was fair. (Judges and juries aren’t always the best judge of value, partially because they’re not the ones buying the car.) If somehow convicted, Tyell Morton would be labeled a felon for the rest of his life, facing all the consequent difficulties that come with that status, just for pulling a stupid senior prank.
Prosecutors are often only concerned with getting the highest possible price, but their duty to society is to be more than just salespeople.