Steve’s Fresh Perspective

A Plea for All Seasons

Margaret Burns, the press officer for the Baltimore City State’s Attorney’s Office, recently commented on a Resurrection-clause in a plea agreement that permits a defendant to withdraw her plea of guilty to child abuse resulting in death should the child rise from the grave. (See here for The Washington Post article):

“This would need to be a Jesus-like resurrection.  It cannot be a reincarnation in another object or animal.” 

Ms. Burns’ comment suggests that the State was never really serious about upholding its end of the bargain.  This would not be the first time in recent history that a government agency had breached, or had made an effort to breach, the terms of a plea agreement.  See here for a Fourth Circuit opinion from this past Monday addressing just such a situation.

We should not be surprised to learn that the State never intended to follow through with the agreement, and here’s why:  The agreement clearly violates the Rule Against Perpetuities.  As you may recall from law school or Body Heat, the  Rule Against Perpetuities can be simply stated as follows:

No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.

Although most discussions and analysis relating to the rule revolve around wills and trusts, the rule is not limited to those matters.  I can already hear the government’s attorney on appeal arguing that the clause is applicable to contract law and should therefore be struck from the agreement.  (An attorney in private practice would probably say “stricken.”)  I can see it now–the child is revived in, say, 22 years, and the defendant must remain a convicted felon.  This was a clever ploy by the State and an unfortunate decision by the defendant’s attorney not to negotiate a better deal consistent with contract law.   As a matter of public policy, we should insist that the State be held to the agreement, rule or no rule.  April 1st or no April 1st.

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