An angry U.S. District Judge J. Thomas Greene refused Thursday - for the second time - to approve a plea arrangement worked out between the government and an accused pornographer.
U.S. Attorney Brent D. Ward said parts of the arrangement have been implemented anyway, and promised that even though the judge would not dismiss charges against Avram C. Freedberg, the government still won't prosecute."If the court sets a trial date, I'm frank to say, we will appear before the court and say we are not prepared to proceed, and we'll not proceed," Ward said.
He conceded that through this "something will have been lost in the confidence of the people" in the judicial system.
Greene rejected a plea agreement on Nov. 28 in the mail pornography indictment returned against Consumers Marketing Group and Freedberg, its president, both of Stamford, Conn. The agreement was negotiated with the defendants, federal prosecutors in three states and the Justice Department.
Under it, Consumers would plead guilty to one count in each of three states, and the remaining charges against it _ 17 additional counts in Utah alone _ would be dismissed. It would give up its inventory of explicit material, and pay a fine not to be greater than $600,000 total, among the three states.
Freedberg would be free of all charges _ 18 counts in the Utah indictment.
The total possible fine against Consumers and Freedberg, upon conviction on all the Utah counts, could be $13.5 million.
Greene rejected the first attempt to plea bargain the case on the grounds that it bound courts in several states.
On Thursday, the parties argued for dismissal of all counts. Then a single-count felony information would be filed against Consumers alone, and all the arrangements under the original plea agreement would be implemented.
Ward contended that the benefits of the plea arrangement nationally, including the ability to proceed with multi-state pornography prosecutions hung up by a suit that Consumers filed, far outweigh the "pound of flesh" that could be extracted from Freedberg in the case.
The proposition was put to Greene as a simple dismissal. But he rejected that.
"It is a plea agreement," Greene said toward the end of the hearing. The provisions are "substantially similar, and the same results would be obtained under either motion."
The judge said it was "clearly contrary to the public interest."
"I view this situation as an exercise of the executive department's discretion," Ward said. Ward, a subordinate officer to the president in the executive branch, is responsible for deciding whether to prosecute.
"Your initial decision to prosecute is an absolute decision," Greene said. But once prosecution began, the decision to dismiss is the court's.