Supreme Court of Ohio Examines "Dark Pleas"

The Ohio Supreme had an interesting case in August examining the troubling issue of "Dark Pleas." The case involved Lamont Clark, who was convicted of murder in 1993. In 2015, he filed a motion for a new trial after it was discovered that prosecutors had removed part of a medical record containing exculpatory evidence from the alleged victim in the homicide. Before the courts could hear the motion, however, Clark was offered a plea deal that would result in his immediate release. Clark accepted the deal, in part, because his mother was gravely ill at the time. Seven years later, Clark sought to withdraw his plea on the basis that it was coerced and, therefore, not voluntary as required by law. While the Ohio Supreme Court did not accept jurisdiction in the matter, Justice Donnelly wrote a powerful dissent describing what he called "Dark Pleas" and the manner in which they subvert due-process rights. 

From Judge Donnelly's dissenting opinion. 

This appeal presents an opportunity for this court to address a deeply troubling flaw that plagues our criminal-justice system: postconviction plea agreements, which I colloquially refer to as “dark pleas.” Dark pleas—pleas entered by convicted prisoners who do not have any charges pending against them—lack the procedural guardrails that protect a criminal defendant’s constitutional rights and are often entered into by prisoners only because of the unconscionable level of prosecutorial pressure on them to abandon colorable claims of innocence. I dissent from this court’s decision not to accept jurisdiction over this case to address this subversion of criminal defendants’ due-process rights. 

... 

Clark’s case involved the insidious practice by prosecuting attorneys of pressuring a prisoner to plead guilty to nonexistent, nonpending charges in exchange for the State’s withdrawing its opposition to a motion for a new trial on the basis of newly discovered exculpatory evidence. Clark did not regain the Sixth Amendment rights that he enjoyed during the pendency of the underlying case. Nor was his presumption of innocence restored. The State circumvented its burden to proceed with the prosecution in light of what was then known to be true. It can be gleaned from the State’s willingness to withdraw its opposition to Clark’s motion for a new trial that it conceded that prosecutorial misconduct had occurred in the underlying case. In fact, the State implied this concession after the plea colloquy:  

COURT: The basis for this motion was? 

COUNSEL [for defendant]: Basis for the motion was it was learned last year in    April, we obtained the full medical records for Ms. Banks from her brief hospitalization for this and we learned that the prosecutor in the case, Edward Walsh, had removed a number of pages from the medical records which the victim had stated that the gunshot was self-inflicted. I believe that this would undermine confidence in the verdict sufficient to warrant vacating and granting the petition for postconviction release. 

COURT: Very good. 

STATE: We agree with that, Your Honor. Although we don’t believe it absolved Mr. Clark of all responsibility, it undermined our confidence in the verdict, as well. 

COURT: Well, lesson to be learned for your office. 

STATE: Yes, Your Honor.

In light of the State’s willingness to withdraw its opposition to the motion for a new trial in the wake of strong evidence of prosecutorial misconduct, it can be concluded that the dark plea allowed the State to avoid (1) losing face through a likely defeat at a hearing on the new-trial motion, (2) regaining the burden to prove the charges against Clark beyond a reasonable doubt, and (3) engaging in plea negotiations with a defendant who is protected by a full panoply of constitutional rights instead of a prisoner who lacks such protections. The unsettling consequence is that in exchange for his freedom, the prisoner relinquishes the possibility of facing a new trial with all the protections of the Constitution. The cost of that freedom is a conviction on a charge that wasn’t even pending for a crime that the person maintains he did not commit.

The flaws in Clark’s postconviction plea proceedings were compounded by the fact that Clark’s actual reasons for entering the plea agreement were not stated on the record. The lack of a record later allowed the appellate court to decline to actively consider the validity of Clark’s guilty plea and instead simply note that the plea colloquy was recited on the record. The appellate court also refused to consider the egregiousness of the 1992 prosecutorial misconduct by noting that no record was made about the matter during the 2016 postconviction plea proceedings and concluding that res judicata applied.

Although the prosecutorial misconduct during Clark’s trial proceedings is an issue on its own, its place in this appeal should not be considered in a vacuum; its impact was pervasive. The prosecutor’s corrupt act of removing exculpatory evidence from the victim’s medical record potentially caused Clark’s wrongful conviction and his being falsely imprisoned for decades. Clark was then forced to navigate the defective postconviction-proceedings process, which culminated with the horrible choice of returning to prison indefinitely or being free to go after pleading guilty to an unsubstantiated crime (despite having otherwise asserted his innocence).

This appeal represents a chance for this court to address the breakdown of justice in the postconviction world. It is unsettling that dark pleas exist as a means of circumventing the revival of the State’s burden of proof and the defendant’s constitutional rights that would normally result from a meritorious motion for a new trial to withdraw a guilty plea. We should take this opportunity to address the deeply rooted flaws in postconviction plea bargaining. Because I would accept Clark’s jurisdictional appeal, I dissent.

(Internal citations omitted).  You can read the full dissent here. 

Justice Donnelly has written about the issue of "Dark Pleas" before. In fact, you can read an article he penned on the subject in the Cleveland State Law Review Et Cetera here. The piece is entitled, The Dark Plea: One of the Most Coercive Abuses of Power Permitted in the Criminal Justice System.