Prosecutor explains basis of Hernandez plea bargain

Steve Nash

Seated in her office Wednesday afternoon, First Assistant District Attorney Elisha Bird reflected on the plea bargain that suddenly ended Fernando Hernandez’s trial earlier that day.

Yes, Bird said, she believes justice was done with the deal that allowed Hernandez to plead to a lesser offense in exchange for a 30-year sentence. But she clarified the statement.

“I feel like justice was done,” Bird said. “I don’t feel like complete justice was done. To me, complete justice would require things that the criminal justice system cannot give. I wish that there were a way to guarantee that he did not lie or manipulate anyone again.

“What I can do, and what I hope I did do, was provide these victims with a safe space to grow up, especially the youngest one. As much as we can, I think we achieved justice.

I think that justice comes in the fact that he admitted wrongdoing.”

Hernandez’s attorney, Tommy Adams, declined to comment.

‘The best justice in this whole case’

Referring to the three victims named in the indictment against Hernandez, Bird also said justice “came in the fact that these girls are now known to be truth-tellers, and are now known to have bravely spoken up for what was right. They are heroes for what they did, because it took years for their willingness to stand up, and speak against wrong, to come to the point where the person who was committing the wrong would admit to it. That is justice. That is the best justice in this whole case.”

Bird said she hopes she has obtained enough evidence, by Hernandez’s guilty plea, to prevent him from ever working with children again.

She said she takes no pleasure in obtaining a conviction and prison sentence.

“It’s very much mixed emotions,” Bird said. “Certainly, certainly, the reason I get up and come to work is to help these girls, knowing that I have made a difference in their lives and that I have stopped a predator from accessing more girls.

“That absolutely is what motivates me to to stay in this job and to come to work. But at the same time I understand the heartbreak that someone going to prison causes on families. I understand the dramatic, dramatic impact this has on a family. I don’t enjoy sending anybody to prison but I do very much feel motivated by the desire to help girls stay safe, to help them find justice, to give them a voice and the ability to speak out against their abuser.”

Bird said she hopes Hernandez’s victims will emerge “stronger as a result of having a voice, and being able to confront him. I love seeing them be courageous enough and strong enough to speak out. That part I love.”

Anatomy of plea deal

In the plea deal, Hernandez pleaded guilty to aggravated sexual assault of a child. The charge, a first degree felony, carries a sentencing range of five to 99 years or life in prison, and Hernandez will first become parole-eligible after serving half the sentence, Bird said.

Hernandez had been standing trial for continuous sexual assault of a child, a special range felony with a sentencing range of 25 to 99 years or life in prison. That sentence would be “day for day,” meaning there would be no parole, Bird said.

District Judge Steve Ellis and Bird said the aggravated sexual assault charge had been “carved out” of the bottom paragraph of a multi-paragraph indictment that named three victims.

The bottom paragraph to which Bird referred contained an allegation that Hernandez had sexually abused a girl who was a child relative.

Risks, benefits

“I can tell you that it’s hard to reach decisions like this,” Bird said of the plea bargain. “It’s not something that we do lightly, because obviously, the emotional side of prosecutors would love to see day-for-day sentences for every sex offender, and the largest (sentence) possible.

“But we have to look at things from a rational perspective: what are the risks if we go forward without an agreement? What are the benefits of reaching an agreement?”

When asked if she had anticipated Wednesday morning that a plea bargain was about to be reached, Bird replied, “It’s always a possibility, during a trial, that if the right situation happens, we may resolve it.”

Benefits of the Hernandez plea bargain included Hernandez’s waiver of appellate rights, Bird said.

“One of the other benefits: he was willing to agree to it before we put on (another) victim,” Bird said. “I didn’t have to put her through the emotional hardship of testifying about what happened to her.” One victim had testified Tuesday, and the state had planned to call the victim from Plainview Wednesday but didn’t have to, Bird said. The state would not have called the youngest victim, she said.

In deciding to continue a trial, Bird said, “there’s always a risk that a jury may not be able to agree. We could have a hung jury and we could try everything all over again, and make these victims go through everything all over again. There (would be) a risk on appeal that we could get reversed and come back and have to try it all over again.

“When we look at whether or not to plead someone, we are evaluating, how much damage will it do if we can’t succeed as well as well as we would like to?”

‘I knew it was a possibility

She said it’s possible Hernandez will serve less time with the plea bargain than he would with a day-for-day continuous sexual abuse sentence.

“Is it probable? I don’t know,” Bird said. “Then you start having to get into a lot of factors that are very difficult to predict. It is possible that he may have to all 30 years day-for-day on this sentence because, even though he becomes parole eligible, a parole board may look at it and say ‘no we’re not going to let you out.’

“This is different from a drug case or evading case. I hope, and I think, that the parole board takes very seriously cases against children. I don’t know when he will get out. That’s dependent on how he acts when he’s in prison, it’s dependent on other people.”

Bird would not comment on specifics of negotiations between the prosecution team and Adams that led to the plea bargain.

“I knew that it was a possibility during the break,” Bird said, referring to a recess that had just ended. She said she was about to begin questioning a newly seated witness when she received “notification from the defense attorney that they were willing to do this.”

That’s when Bird asked Ellis for permission to approach the bench, where the attorneys told Ellis they’d reached a deal.

Evaluating the options

When asked how they’d found time to hash out the details given the suddenness of the plea, Bird replied, “generally — not all the time, but generally — there are discussions back and forth between prosecutors and defense attorneys: is there any possible resolution in the case?

“I think a lot of people in the courtroom are surprised at how much interaction — even friendly interaction — there is between defense attorneys and prosecutors. And that’s because we have to constantly evaluate where we are in the process, what’s going on, what options are out there, when do the options change, and when is it too late to do some things and when is it not too late. That always happens during trials.”

While most trials don’t end with sudden plea bargains, there is always “ongoing discussion and an awareness in the back of your mind — what have the plea discussions been like?” Bird said. “What are they willing to do? Are they willing to do anything, are they willing to do nothing, do we have some ground where maybe we could look at middle ground if we feel like we need to.”

‘The best way’

After the plea bargain was reached, Bird said, she and District Attorney Micheal Murray talked with Hernandez’s three victims and family members.

“I don’t know truly how they feel about everything,” Bird said. “They were all aware of the plea, because obviously they were there, or at least some representative of the family was there. It happened so fast, we didn’t have time to sit down and let them fully process everything, wrap their mind around everything and give us a ton of feedback.

“And honestly, how they feel about it may change over time. Two of the victims are in the very horrible position of the defendant (being) both their relative and their abuser. And that always comes with conflicting emotions for family.”

Bird said she would have preferred to see Hernandez “go away for life on a day-for-day sentence. That to me would have been the best way to protect the community.”

Bird said she hopes Hernandez’s victims will emerge “stronger as a result of having a voice, and being able to confront him. I love seeing them be courageous enough and strong enough to speak out. That part I love.”