Prisoner’s Dilemma: Plead Guilty and Go Free or Risk New Trial?

Crime and punishment is a simple concept. You commit a crime, you get punished. Why does it get goofed up so often by people who should be smart and thoughtful enough to prevent it?

In the latest Orange County example--and there seems no shortage of them--Joshua Moore, now 22, is doing hard time in Wasco State Prison for two robberies.

Funny thing is, prosecutors now know he didn’t do the first one. They’ve always known there was a question about the extent of his involvement in the second. It was his “certain” guilt in the first robbery that got him 12 years in prison.

The district attorney’s office said last week it will drop both charges, then retry Moore, who has spent 18 months in prison, on the second robbery only.

Moore’s uncle, a retired government auditor speaking for the family, makes an impassioned point: Since prosecutors got it wrong once--a mistake that contributed directly to Moore’s sentence--why not drop both charges as a matter of fairness?

It could happen. But more likely, Moore will face a tough choice.

His dilemma: He can plead guilty to the second robbery and be released for time already served. Or, he can continue to claim innocence, take his chances at a second trial and, perhaps, have to serve a bit more time if convicted.

Prosecutors haven’t publicly confirmed any offer, but his uncle, Jim Dinwiddie of Orange, says the one I describe is on the table.

Here’s the unfairness of it all: Moore was tried for both robberies at once. Jurors heard a witness testify that Moore was the gunman who robbed a Fullerton video store in August 1998.

His role in the second--a robbery of an automated teller machine in Orange some three months later--has always been less clear.

Moore drove a car that backed into a parking space near the ATM while his friend held up a customer at gunpoint. They fled in Moore’s car, but police soon corralled them. Moore has said he was an unwitting participant who drove his friend to the area as a favor, unaware his friend had robbery in mind.

Who could blame jurors for being skeptical? Moore was identified in court as the video store robber, and jurors were told the two crimes were similar--both involved a robber who was white and another who was black. Moore is white; the ATM robber was black. But Moore has been ruled out as the video store robber.

Last week, prosecutors verified that he was at work when the video store robbery occurred. Moore’s fingerprints were found on a sales receipt, confirming his alibi.

Had prosecutors checked early on, he would have faced only the ATM charge. Without the Fullerton robbery charge, it’s not at all certain he would have been convicted on the ATM holdup.

Should prosecutors have checked his alibi?

When they filed charges, prosecutors had a single witness identifying Moore at the video store and, seemingly, a second crime in which he was caught in the act--or, at least, its aftermath.

They probably felt it was enough to go to trial. I’d agree but for Moore’s specific alibi claim--one we now know was provable.

Sure, Moore’s defense should have found the exculpating receipt. But with prosecutors’ power to expose people to the vagaries of the system, shouldn’t they take that step before filing charges?

A cynic would say it’s all about courtroom wins and losses. Without the first charge, the ATM case against Moore was shakier.

Dinwiddie concedes his nephew’s role in the ATM robbery raises eyebrows but says Moore’s truthfulness about the video store robbery should carry some weight.

“I’m not saying they owe him,” Dinwiddie says. “But since he gave them a creditable story for one, they should give him the benefit of the doubt for the other. They owe him . . . because of their mistakes in the first one.”

Only one person pays the price for a wrongful conviction--the defendant. Everyone else goes home.

Could the prosecutor drop the ATM charge and not lose sleep? Yes. I’d argue differently had Moore been the holdup man; given the uncertainty over his complicity--even while granting it looks suspicious--I’d give him the break.

How will Dinwiddie advise his nephew when he visits him today?

“I’ll say, ‘You wanted a new trial. . . . You’ve claimed innocence all the way through, why turn your back on it now?’ ”

Because, I reply, he could get out of prison if he takes the plea.

“If he was convicted and had to spend another year in jail,” Dinwiddie says, “five to seven years down the road he could still look in a mirror and say he was there for something he didn’t do. If he took the plea, he couldn’t say that.”

*

Dana Parsons’ column appears Wednesdays, Fridays and Sundays. Readers may reach Parsons by calling (714) 966-7821 or by writing to him at The Times’ Orange County edition, 1375 Sunflower Ave., Costa Mesa, CA 92626, or by e-mail to dana.parsons@latimes.com.