Wednesday, November 12, 2014

Judge Rakoff on "Why Innocent People Plead Guilty"

Judge Jed Rakoff has published a very interesting piece in The New York Review of Books entitled "Why Innocent People Plead Guilty." I would encourage readers of this blog to take a look at this in-depth analysis of how we came to have a system in which 95%-97% of convictions are the result of a plea of guilt.

The opening paragraphs:

The criminal justice system in the United States today bears little relationship to what the Founding Fathers contemplated, what the movies and television portray, or what the average American believes.

To the Founding Fathers, the critical element in the system was the jury trial, which served not only as a truth-seeking mechanism and a means of achieving fairness, but also as a shield against tyranny. As Thomas Jefferson famously said, “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”
...
In 2013, while 8 percent of all federal criminal charges were dismissed (either because of a mistake in fact or law or because the defendant had decided to cooperate), more than 97 percent of the remainder were resolved through plea bargains, and fewer than 3 percent went to trial. The plea bargains largely determined the sentences imposed.
...
It was not always so.
The entire article is available here.

Friday, October 3, 2014

Plea Agreements and Waivers - Awaiting New Policy Announcement

According to the Wall Street Journal, the DOJ will soon announce a major policy shift regarding plea agreements and certain types of waivers.  According to the paper, Attorney General Holder is preparing to announce that the government will no longer request defendants waiver their right to appeal for ineffective assistance of counsel.  
The waivers are used by about one-third of the 94 U.S. attorneys' offices and have come under increased scrutiny by legal ethics authorities in recent years. While federal prosecutors say the waivers pre-empt frivolous litigation and preserve resources, defense lawyers and federal public defenders argue they create a conflict of interest and insulate attorney conduct from judicial review.

The debate has grown in importance now that nearly all charges in federal and state courts are settled with plea bargains. These agreements represented more than 97% of all federal convictions in 2013, said the Administrative Office of the U.S. Courts.

By signing a waiver—usually a paragraph in a plea agreement—a defendant agrees not to challenge her conviction by filing a claim alleging that an attorney provided ineffective assistance. If the defendant were to try anyway, a court could enforce the waiver without considering the merits of the claim.

In a ruling last month, the Kentucky Supreme Court became the first to pronounce such waivers unethical, saying they put defense lawyers in the awkward position of having "to advise a client on the attorney's own conduct."
Along with the Kentucky pronouncement, bar associations in eleven other states currently hold that such waivers are improper.  The entire Wall Street Journal article is here.

Thursday, September 11, 2014

"A Prisoner of Time" - Winner of the 2014 Hofstra Law School Mystery Short Story Contest

I am pleased to announce that my short story, entitled "A Prisoner of Time," has been selected as the winner of the 2014 Hofstra Law School Mystery Short Story Contest and is now available on the Mulholland Books website.  The competition was judged by Lee Child, New York Times bestselling author of the Jack Reacher series, Marcia Clark, the former OJ Simpson prosecutor and author of the highly-praised Rachel Knight series, and Alafair Burke, best selling author of ten thrillers.

Below are the first few paragraphs of story.
The years passed faithfully, each one much like the last, and yet each distinctive and filled with its own memories.  George Duncan, known simply as Duncan since his first year of school, sat in his large recliner.  Though the chair was old and tattered, the fabric was woven with far too many memories to discard.  Duncan, currently in the eighth decade of his life, had never felt the cold beneath his skin as he did now.  But, somehow, sitting in his chair, gazing through the window, and thinking about the past seemed to warm him as the sun set outside.

Duncan’s mind often wandered over his decades as a feared criminal defense attorney.  On some days he would laugh out loud as images of a floundering witness succumbing to his blazing cross-examination replayed in his mind.  Other days were filled with deep reflection on those few times during his career when mistakes had led to perpetual recollection and regret.  Despite the innumerable and varying memories from which to select, one image drifted uninvited into his mind more than any other during the many days he spent in that timeworn chair, the face of his client Billy Brandon.  As that face flickered in his consciousness once again, Duncan’s hands clenched in anger and anxiety.
“Duncan.  Duncan, dear,” his wife, Martha, called from the kitchen.  “It’s time for dinner.”

“Just a moment,” Duncan responded as he unbound his hands and strained to push himself up from his seat.

Once standing, he paused and gazed out the window for a final second.  Then, turning to face a large bookcase at his side, Duncan reached out and withdrew a massive leather bound edition of a Dostoyevsky classic.  After using both hands to lower the literary masterpiece onto a small library table, Duncan lifted the front cover to reveal the book was actually a safe.  Reaching into the hollow middle, he pushed aside a piece of paper and withdrew a heavy black revolver.  Holding the gun in his hand and spinning the chamber, he took note of the four bullets and two empty shells still lying in the cylinder.

“After these many years,” Duncan said aloud, yet in a whisper, “my representation will finally come to an end.  Until tomorrow, Mr. Billy Brandon.”
Click here to continue reading the rest of "A Prisoner of Time."

The award announcement is available here.

 

Monday, September 8, 2014

Economist Article on the Criminalization of American Companies

The Economist has an excellent article on the Criminalization of American Companies entitled "A Mammoth Guilt Trip."  Among the many interesting issues the article examines is this regarding the risks of proceeding to trial for corporations:
Chief executives now say it would be simply irresponsible for them to run the risk of an indictment and trial. The result is “regulation through prosecution”, argues James Copland of the Manhattan Institute, a think-tank. The mere threat of an indictment forces a negotiation which can lead to an entire new construction of law.

So how does a legal process without an open trial operate? The kind answer is “mysteriously”; a harsher one might be “coercively”. 
Read the entire article here.

Sunday, August 24, 2014

Interesting WSJ Article Regarding the Rise in Arrest Records

The Wall Street Journal has an interesting article discussing the rise in arrest records in the U.S.  From the opening paragraphs:
America has a rap sheet.

Over the past 20 years, authorities have made more than a quarter of a billion arrests, the Federal Bureau of Investigation estimates.  As a result, the FBI currently has 77.7 million individuals on file in its master criminal database - or nearly one out of every three American adults.
The full article is available here.