Monday, May 23, 2011

A Scathing Critique of the Role of Plea Bargaining in an Infamous Texas Case

The Texas Monthly has published a scathing critique of the role of plea bargaining in an infamous Texas case. The case, referred to locally as the "Mineola Swingers Club" case, involved shocking allegations of child sexual abuse. While the facts of the case may remain uncertain, the power of plea bargaining in the matter is clear.

Well, it’s finally over, and if you didn’t look too closely, you’d think the good guys had won. Today at a pre-trial hearing in Smith County, six of the seven so-called Mineola Swingers Club defendants—accused of unbelievable acts of child sexual abuse—pled guilty to “injury to a child” (a felony) in exchange for their freedom. They’ve all been in jail or prison since 2007, though two had their sentences overturned. The remaining defendant—whose conviction is still intact—will remain in prison.

I’ve rarely seen the wheels of justice grind up so many innocent people — and I’m not just talking about these seven defendants. I’m also talking about the children who became witnesses against them, plus the family members of everyone involved in this sordid mess. As long-time Tyler attorney Bobby Mims, who is also a vice-president of the Texas Criminal Defense Lawyers Association, told me in my first story on the cases, “In my thirty years of practice, I’ve never seen anything like it—an absolute, honest-to-God frame-up.”

I’ve been writing about these cases for more than two years now, in the magazine and online. To recap, from 2005 to 2008, four Tyler children - three siblings and their aunt — all aged 4 through 7, made allegations that in 2004 seven adults, including their parents, had forced them to attend a sex kindergarten in a trailer park, where they learned to play sex games, and then took them to a swingers club in nearby Mineola, where they performed sex acts on stage in front of crowds of as many as 30 adults, who videotaped the shows. The stories told by the kids were wildly inconsistent and sometimes outright bizarre: adults casting spells, wearing witch outfits, and sacrificing chickens; one child said she had flown around on a broomstick. Every single child initially denied to social workers knowing anything about a sex kindergarten or club; it was only after multiple interviews that they started making outrageous allegations. But there was nothing to back them up: no adult witnesses and no physical evidence — no DNA, no fingerprints, not even any videotapes.

In fact, Wood County, where Mineola is located, did its own investigation, back in 2005, when just one child was talking about a sex club. Investigators (including an FBI agent), found absolutely no evidence to back up her accusations. This didn’t stop the criminal justice machinery of Smith County. A Texas Ranger got involved and before long he was helping interview the other kids. In 2007 arrests were made; the public was outraged that a sex kindergarten and a sex club would operate under their noses. Three of the adults went to trial in 2008 and their juries, made of good country people who want nothing more than to protect their children, found them guilty in a matter of minutes. A fourth defendant was found guilty last summer.

I find it unfathomable that so many good people could allow and encourage these prosecutions to go forward. What happened to the lawyerly skepticism of Judge Jack Skeen and DA Bingham and the other men and women in his office?

* Why didn’t they look closer at the kids’ weird, implausible stories?

* Why didn’t they look closer at the foster mother of three of them, a woman named Margie Cantrell who moved to Mineola from California in 2004 and who has a history of manipulating her foster kids? (One of her California kids characterized her to me as “the puppet master” and said, “She brainwashes the kids to believe the stories she makes up.”)

* Why didn’t they give serious credence to the fact that not one of the seven defendants would testify against the others in exchange for a lesser sentence?

If they had done just one of these three, much less all of them, they would have realized the obvious: Nothing happened. There was no crime. There was no sex kindergarten and there were no child-sex shows at a swinger’s club. Ultimately, I can’t help but believe that Bingham knows this. Let’s put it this way: If he really believed these people put on live sex shows with children, would he really be setting them free now?

I always figured the cavalry would ride in and save the day for them. First I thought it would be the office of the Attorney General, which, in the summer of 2009 sent two lawyers to help investigate the case after Bingham tried to recuse his office from further prosecutions. But the AG’s office didn’t do anything. Then in the spring of 2010 two of the defendants had their verdicts thrown out by the 14th Court of Appeals in Houston—a process which saw the DA in neighboring Wood County file an extraordinary amicus brief in which he officially called into question everything the Smith County DA had done. “[N]o evidence was found to corroborate the stories told by the children,” he wrote.

But that was it. No cooler or wiser heads stepped in to actually free these people. In fact, those two defendants whose cases were overturned were going to be folded in with the remaining defendants (two of whom are grandparents of two of the children) into one mass trial in June. It is these six who pled guilty.

Why would they do this if they aren’t guilty? Well, innocent people plead guilty all the time. They confess to crimes they didn’t commit (about a quarter of the DNA exonerations involve some form of false confession) and they plead guilty to crimes they didn’t commit. They especially do it when they are certain they will be found guilty, no matter what they do or how good their attorneys are. In these cases we’ve already seen four different juries vote guilty — in the time it takes to watch a movie. These defendants know the realities. They can go to prison for life — or they can go home. They don’t have a whole lot to lose by pleading guilty. Their lives have already been ruined — they’ll always be known for these allegations anyway...

I usually believe in the ultimate good will of good people; justice will triumph. Of course, that only happens if people actually do something about injustice. In this case decent people turned away from doing anything about a terrible wrong. They’ve got a word for that, and the word is “evil.”

In Smith County, the bad guys won.
Clicker here for the entire story.

Thursday, May 12, 2011

Update Regarding "Donations" in Plea Bargaining Cases

In a follow-up article regarding "donations" in plea bargaining cases, the Bellville News-Democrat is reporting that in March 2011 an individual was required to donate $22,500 to a police drug task force and Sheriff's task force as part of a plea bargain in a drug case. The defendant also received probation. The article went on to describe some of the responses to the revelations in the earlier article regarding the use of such "donations."


Based on the BND's Sunday article, the Illinois State Bar Association issued this statement Monday concerning the practice of plea bargains that include payments to funds controlled by the office of the prosecutor or police in the case:

"It's not our place to comment on the legality or ethics of the practice, but it does raise concerns that the public's perception of our justice system may be undermined," said Charles J. Northrup, general counsel to the bar association. Northrup is a frequent lecturer on matters of legal professional ethics.

Kathy Twine, executive director of the Illinois Judicial Inquiry Board, said that state law prevented her from making any comment. The board's regulations state it can initiate its own investigation of a judge.

James Grogan, deputy administrator and general counsel to the state Attorney Registration and Disciplinary Commission, also said he could not comment except to note that the commission can begin an investigation of an attorney, including a prosecutor, without waiting for a citizen's complaint.
Read the entire article here.

"Donations" in Plea Bargaining Cases Under Fire

The Belleville News-Democrat in Illinois posted an article this week discussing the growing practice of requiring defendants to pay "donations" to anti-crime funds in return for prosecutors dropping or reducing charges. The article has resulted in significant attention being focused on this issue and a statement being issued from the Illinois State Bar Association. The statement reads: "It is not our place to comment on the legality or ethics of the practice, but it does raise concerns that the public's perception of our justice system may be undermined."

The newspaper article includes the following discussion of the "donation" practice.

Defendants accused of rape, homicide, drug dealing and other serious crimes in five rural southern Illinois counties have paid thousands of dollars into "anti-crime" funds that benefit or are controlled by local prosecutors in return for probation or dismissal of charges.
Professors at some of the nation's top law schools say this practice undermines public trust in courts and gives the appearance that defendants with enough money get preferential treatment and can buy their way out of trouble. They say such payments violate a basic ethical principle: Monetary contributions or payments resulting from plea bargains should not in any way benefit or appear to benefit the offices of the prosecutor, the judge or police involved in the prosecution.
"It is clearly unethical and a violation of the Constitution," said legal ethics expert Monroe H. Freedman, a professor at Hofstra University Law School in Hempstead, N.Y. Like other experts contacted for this story, Freedman cautioned he was not commenting about any specific case.
A Belleville News-Democrat investigation found that payments negotiated by prosecutors and approved by judges ranging from $1,000 to $15,000 resulted in probation or dismissal of felonies in 17 cases in Saline, Pulaski, Franklin, Wayne and Hardin counties.
Defendants made much smaller payments to prosecutors' funds in hundreds of other cases in these same courts. A random check of 50 felony cases showed that probation or a conditional discharge was granted in 48 cases. In two cases, the defendant received prison time. The average payment in those 50 cases was $400.
In Saline County, when charges were dismissed by a judge or dropped by the prosecutor, defendants still were required to pay thousands of dollars into one of these funds, even though there was no finding of guilt and the case no longer existed.
"I believe it is wrong for a plea agreement to include contributions to a fund administered by the prosecutor's office or by any agency that is involved in the prosecution," said ethics expert Steven Lubet, a professor at Northwestern University Law School in Chicago.
The 17 cases involving the $1,000 to $15,000 payments included four defendants with criminal records, including one who served time in state prison. Two of the defendants were freed after agreeing to pay, only to be caught again months later for the same crime.

In response to the article, several of the prosecuting offices utilizing this system of donations stated that the practice would end immediately.


Saline County State's Attorney Mike Henshaw, a former circuit judge, ended his office's connection to the "Saline County State's Attorney's Controlled Substance Fund" two weeks ago after the News-Democrat asked questions about it. The fund, established in 2005 by the previous state's attorney, collected $148,309 through February 2011.
After questions from the News-Democrat, Wayne County State's Attorney David Williams said he might abolish the practice as well. However, on Thursday, he said that while he has not had any involvement with his office's fund since he was elected and will continue not to use it, he will not take action to abolish it.
"But that doesn't mean I condemn it," he said.
Henshaw said he doubts state law allows these types of payments to be part of court-ordered plea bargains. "There will be no more pleas taken on this fund," he said.
The loss of revenue, he said, will probably mean he will have to lay off his office's investigator.
Henshaw said while payments to the fund occurred after he took office, they never were an issue until the News-Democrat's inquiry.
"I just never thought about it," he said.
Former Saline County State's Attorney David Nelson, who created the fund in 2005, said he first consulted state law to determine whether the payments could be tied to plea bargains, but he could not recall the specific statute.
"I remember it was vague," Nelson said.
Read the entire article here.

Friday, May 6, 2011

Moriarty on Plea Bargaining and the Defense Dilemma of Competent Representation

Jane Moriarty (Univ. of Akron School of Law) has posted a new article on SSRN entitled "'Waiving' Goodbye to Rights: Plea Bargaining and the Defense Dilemma of Competent Representation." The abstract is below.


The proposed amendments to the ABA Criminal Justice Standards for Prosecutors and Defense Lawyers ("Proposed Standards") address a number of problematic issues related to the roles of both prosecutors and defense attorneys. This Symposium Article considers waiver of rights in the context of the Standards, focusing on guilty pleas and the so-called "preconditions" that prosecutors generally require before even entertaining the defendant’s proffer, colloquially termed "Queen for a Day" agreements It reviews the development in the law since 1993, the changes in the practice since that time, and the proposed changes to the Standards. The article focuses on the complex obligations of criminal defense attorneys to investigate their cases and give competent advice to their clients in the shadow of proffers and pleas. It concludes that attorneys in this role face an almost insoluble dilemma and hopes that the Proposed Standards provide an important first step to resolving it.

Teens Sentenced in Phoebe Prince Bullying Case

Five teens facing criminal charges for bullying in connection with the 2010 suicide of Phoebe Prince have pleaded guilty and been sentenced to probation and community service. According to the Christian Science Monitor:


Sean Mulveyhill and Kayla Narey were sentenced on Wednesday to a year of probation and 100 hours of community service with at-risk youth, in exchange for admitting criminal harassment. Sharon Velazquez and Ashley Longe received similar sentences Thursday in juvenile court, and Flannery Mullins was sentenced for a civil rights violation, also in juvenile court. The courts also prohibited them from telling their stories for profit during the probation period.


For some of the teens, their records will be cleared if they successfully complete probation. The charges originally filed ranged from statutory rape to violations of Prince’s civil rights.


Prince, a freshman at South Hadley High School who had recently moved from Ireland, dated Mr. Mulveyhill, and after they broke up he and the girls directed threats and insults against her, including slurs against her Irish ethnicity. In the time leading up to her suicide, Prince feared being attacked and frequently visited the school nurse or avoided school.


Prince’s family agreed to the sentences, in which the more-serious charges were dropped, to avoid drawn-out trials, prosecutors said. Another teen, Austin Renaud, has pleaded not guilty to statutory rape and is due in court later this year.


The proceedings “signify that bullying and harassment will not be tolerated in our schools and when it rises to the level of criminal conduct ... those responsible will be prosecuted,” Steven Gagne, Northwestern first assistant district attorney, said in a statement after Wednesday’s sentencings.


Alfred Chamberland, a lawyer for Ms. Mullins, said in a statement that prosecutors had “overcharged” the girls and that the media had unfairly portrayed them as “mean girls and bullies.”


Some educators raise concerns that criminal cases are not the best way to address bullying. While the Prince case “has helped put bullying and cyberbullying on the educational agenda ..., children are very reluctant to report bullying to adults, and the threat of sanctions may make it less likely they will do so,” says Peter Sommer, head of the Cambridge Friends School in Massachusetts. “Interventions really have to be more educational than punitive.”


But others applaud the prosecutors. The comprehensive set of charges was the best approach to prosecuting cyberbullying that she’s ever seen, says Parry Aftab, executive director of WiredSafety, an online safety group.