Thursday, January 16, 2020

Professor Dervan Files Amicus Brief with the U.S. Supreme Court Regarding Plea Bargaining and Innocence


I filed my first Amicus Brief with the U.S. Supreme Court last week.  The Brief was filed in support of the petitioner in the case of Taylor v. Pima County, Arizona et al.  The petitioner, Louis Taylor, accepted an offer to plead no contest and go home after spending 42 years behind bars following his wrongful conviction.  As Judge Schroeder stated in the lower court, “He accepted the offer, since his only alternative was to stay in prison and wait for his petition for collateral relief to wend its way through the courts, a process that could take years.”  It should come as no surprise that after over four decades the Taylor case should conclude with a plea.  As acknowledged by the Supreme Court in Lafler v. Cooper (2012), [C]riminal justice today is for the most part a system of pleas, not a system of trials.”  But this case does not end with Taylor’s freedom.  Unfortunately, the Ninth Circuit recently ruled that he should now be barred from recovering damages for the alleged grievous deprivations of civil rights that led to his wrongful imprisonment in the first place because, as a condition of immediate release, he did the rational and now commonly accepted thing – he pleaded no contest to time served.  

This is an important case for the Court to accept to both correct the error in the Ninth Circuit, but also to correct the unsupported and erroneous assumption about the reliability of plea bargaining that has permeated case law such as this since the Court approved of plea bargaining in the 1970 case Brady v. United States (1970).  As an example, in 1975 in the case of Menna v. New York (1975), the Court stated, “[A] counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case.”  Recent psychological research, however, starting with my ground breaking 2013 study using the Edkins-Dervan Plea Bargaining Paradigm, has demonstrated that individuals plead guilty for many reasons, some of which have little or nothing to do with their actual guilt.  The Taylor case is one such example, where obtaining immediate release from prison, rather than waiting years for collateral relief, was the determinative issue.  Accepting the Taylor case for review, therefore, affords the Court an important opportunity to acknowledge that plea bargaining is not a reliable indicator of actual guilt and that, as anecdotal cases, empirical evidence, and psychological studies now demonstrate, innocent defendants plead guilty in our system. 

Though plea bargaining has existed in the shadows of our criminal justice system for well over 100 years and grew to dominance in the twentieth century, we are still learning much regarding the process by which defendant’s engage in decision-making within the system.  Today, we know that defendants plead guilty for a variety of reasons, some of which have little or nothing to do with actual guilt.  As the Court considers the Taylor matter and what the future might hold for plea bargaining jurisprudence more generally, I believe the Court should ensure that this and future decisions are not made based on prior erroneous assumptions, but rather, that the path forward is guided by what we now know about bargained justice.  Through such an informed and considered process, the Court has the opportunity to prevent an injustice, reinvigorate the meaningfulness and presumption of innocence, and still allow for the efficiency and beneficial aspects of bargains.

You can read the entire Brief at the below link.


Writing the Brief was a great experience, and I hope the Supreme Court takes action in this important area of law that has gone unchecked for so long.  Thank you to Belmont University College of Law for supporting me in my research regarding false pleas and in the filing of this Brief.  And thank you to my @BelmontLaw colleague, Charlie Trost, for serving as my counsel.

#pleabargaining #bargainedjustice #innocence #criminaljusticereform