Professor Dervan's Research Discussed in Flynn Brief

Many in the public and the legal profession are closely following the many twists and turns of the Michael Flynn prosecution. Flynn, President Trump's former National Security Advisor, pleaded guilty in 2017 to making false statements during an interview with the FBI. In early May, 2020, however, the Department of Justice filed a motion to dismiss the prosecution, setting off a complex back and forth between the Department of Justice, Flynn's defense team, and the judge in the case, Judge Emmet Sullivan. The government's motion eventually led Judge Sullivan to seek advice regarding how to proceed from former federal judge John Gleeson. Judge Gleeson recently released a lengthy report reconstructing the prosecution and recommending that Judge Sullivan proceed with sentencing Flynn, despite the government's attempts to drop the case. In addition to deciding whether to accept the government's motion to dismiss the case or proceed with sentencing based on Flynn's 2017 plea of guilty, Judge Sullivan has also questioned whether he should pursue contempt proceedings against Flynn. In his report, Judge Gleeson advised against this additional sanction. 

As we wait to see how Judge Sullivan will proceed, many in the public have begun raising broader questions and concerns about the plea bargaining system. If Flynn did falsely plead guilty in return for a deal, what does that say about the reliability of a system in which 95% to 98% of convictions come from pleas of guilty. As readers of this blog know, these are the types of questions we have been asking and exploring for a long time as we consider the coercive nature of what I've coined "bargained justice."

Last week, the National Association of Criminal Defense Lawyers filed an Amicus Curiae brief in the Flynn case arguing that the criminal contempt sanction should not be pursued against Flynn. The brief discussed my research on false pleas and what I describe as "The Innocent Defendant's Dilemma" in support of the position. From the brief:

The psychology of “plea bargaining’s innocence problem” results in “innocent participants [being] willing to falsely admit guilt in return for a perceived benefit.” Dervan and Edkins Study, supra, at 4. In the Dervan and Edkins Study, college students were confronted for allegedly cheating on an academic exercise. See id. at 28–33 (describing methodology of the study). By design, half of the students in fact cheated in the experiment, and half were innocent. See id. Once confronted, the student could either admit to cheating and accept a lenient punishment, or the student could try his or her case before an academic panel and face the prospect of a more serious punishment. See id. The study’s creators “sought to recreate the innocent defendant’s dilemma in as real a manner as possible by presenting two difficult and discernible choices to students and asking them to make a decision.” Id. at 33. For example, study participants were informed that students going before the academic panel were found “guilty” 80–90% of the time. Id. at 32 (explaining that this figure was selected to mirror conviction rates in criminal trials); cf. Mark Motivans, Bureau of Justice Statistics, U.S. Dep’t of Justice, NCJ 251770, Federal Justice Statistics, 2015–2016, at 9 (Jan. 2019), https://www.bjs.gov/content/pub/pdf/fjs1516.pdf (noting that 91% of “defendants whose cases were terminated” in district courts in 2016 “were convicted”).  

Over 56% of the “innocent” students took the plea offer rather than risk the more serious penalties that could result from a trial. See Dervan and Edkins Study, supra, at 34. In other words, “well over half of the innocent study participants … were willing to falsely admit guilt in return for a reduced punishment.” Id. at 37. At its core, the Dervan and Edkins Study relied on the same incentives—or disincentives—faced by defendants in courtrooms across the country, including the high likelihood of conviction if they go to trial to claim their innocence. See id. And the study showed that “innocent individuals are actually highly risk averse.” Id.  

The Dervan and Edkins Study demonstrates why courts should not reject out of hand a defendant’s claim of innocence when the defendant seeks to withdraw a guilty plea. In many cases, that claim of innocence is well-founded. But the defendant took the guilty plea to avoid the obvious risks of a harsher penalty at trial. See Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2507–10 (2004). Yet “[a]llowing people to continue to serve years of extra prison time despite a plain error in their sentence undermines the legitimacy of the criminal justice system.” Sarah French Russell, Reluctance to Resentence: Courts, Congress,and Collateral Review, 91 N.C. L. Rev. 79, 161 (2012). And a defendant suffering under an unfair deal is more likely to withdraw or challenge it collaterally later, which undermines the efficiency of the process, as well as society’s interest in the finality of sentences. See McQuiggin v. Perkins, 569 U.S. 383, 393 (2013).

I agree with the NACDL's position on the possible contempt charges in this case. If, in fact, a defendant has been coerced into a false plea through bargained justice, let the system stand trial for that lie. As I argued in my brief before the U.S. Supreme Court earlier this year, we know that individuals plead guilty for many reasons, some of which have little or nothing to do with their actual guilt. Courts should make decisions in their cases with full appreciation and acknowledgment that plea bargaining is not a reliable indicator of actual guilt and that, as anecdotal cases, empirical evidence, and psychological studies demonstrate, innocent defendants are falsely pleading guilty in significant numbers in our current system.