Two Recent Notable Commentaries on Plea Bargaining

In recent days, two notable pieces have appeared in major U.S. newspapers discussing plea bargaining's innocence problem. 

The first appeared in The Washington Post, entitled "How to make an innocent client plead guilty." The piece, written by Jeffrey D. Stein, a public defender in Washington, D.C., discusses the power of plea bargaining, especially when the defendant is subjected to pretrial detention.

The conversation almost always begins in jail. Sitting with your client in the visitation room, you start preparing them for the most important decision the person has ever made. Though the case is just a few days old, the prosecution has already extended a plea offer that will expire within the week. And, because local laws might require detention for certain charges at the prosecutor’s request, or because criminal justice systems punish those unable to pay bail, your client will have to make that decision while sitting in a cage.

Your client is desperate, stripped of freedom and isolated from family. Such circumstances make those accused of crimes more likely to claim responsibility, even for crimes they did not commit. A 2016 paper analyzing more than 420,000 cases determined that those who gained pretrial release were 15.6 percentage points less likely to be found guilty. Not surprisingly, prosecutors commonly condition plea offers on postponing hearings where defendants may challenge their arrests and request release.

After detailing the process that leads some innocent defendants to plead guilty, the piece ends with a stark and critical reminder of the role attorneys play in our current system of bargained justice. 

The final stage happens in court. Your client has signed the paperwork admitting to something you believe in your gut they did not do. Maybe they acted in self-defense. Maybe they were standing near the actual perpetrator and were presumed guilty by association because of the color of their skin. Maybe they were the victim of an honest misidentification.

The judge turns to you and asks, “Does either counsel know of any reason that I should not accept the defendant’s guilty plea?” You hesitate. You want to shout: “Yes, your honor! This plea is the product of an extortive system of devastating mandatory minimums and lopsided access to evidence. My client faced an impossible choice and is just trying to avoid losing his life to prison.”

But you stand by your client’s decision, which was made based on experiences and emotions only they can know. You reply: “No, your honor.” 

Read the entire Washington Post piece here

The second notable piece in recent days then appeared in The New York Times, entitled "Innocent but Still Guilty." Written by Megan Rose, a reporter for ProPublica, the piece discusses the use of Alford pleas in cases where evidence of innocence throws into doubt a prior conviction. 

After Fred Steese spent two decades in a Nevada prison for murder, evidence indicating that he was innocent was found buried in the prosecution’s files. It was proof that Mr. Steese, as he’d always claimed, had been hundreds of miles away on the likely day of the murder and couldn’t have been the killer.

In Maryland two years earlier, the conviction of James Thompson, who had also served 20 years for murder and rape and whose case involved police and prosecutorial misconduct, was thrown into overwhelming doubt when his DNA didn’t match the semen found in the victim.

In neither case did prosecutors jump to set the prisoner free. Instead they vowed to retry the men unless they agreed to a plea bargain called an Alford plea, in which the defendant enters a guilty plea while also asserting his innocence for the record. The deal allows the inmate to leave prison right away. But he remains convicted of the crime, forever a felon. 

The piece goes on to question the appropriateness of using an Alford plea where the evidence is no longer sufficient to support a conviction beyond a reasonable doubt. 

Prosecutors I’ve spoken to contend they seek Alford pleas because they are convinced the inmates are guilty. Often they say that the plea is the best way to ensure a guilty man remains convicted because effectively prosecuting a new trial may be too difficult for a variety of reasons, including that evidence had been destroyed or simply too much time had passed. The subtext is that the prosecutors may no longer be able prove guilt beyond a reasonable doubt.

Read the entire New York Times piece here

I previously discussed the issue of Alford pleas being used in innocence cases in my 2012 article, "Bargained Justice: Plea-Bargaining's Innocence Problem and the Brady Safety-Valve" (available for free download here). 

In the same year the Supreme Court decided Brady, it also handed down another plea-bargaining decision that helped to solidify bargained justice as a major facet of the American criminal justice system. In North Carolina v. Alford, the Court stated that a defendant could plead guilty in return for some benefit, such as a reduced sentence, while continuing to maintain his or her innocence. The Court inserted a caveat, however, requiring the “record before the judge contain[] strong evidence of actual guilt” to ensure the rights of the innocent are protected and guilty pleas are the result of “free and intelligent choice.”

I then went on to discuss the case of Kerry Max Cook, who, despite evidence of innocence, was forced to accept an Alford plea in return for his freedom. 

[Cook] was arrested for the rape and murder of a woman in Tyler, Texas. Though Cook was convicted by a jury and sentenced to death a year later, he continued to profess his innocence. During his time on death row, Cook was abused, raped, and attempted to commit suicide twice. After one suicide attempt, prison officials found a note that stated, “I really was an innocent man.” His initial conviction was eventually overturned and a second trial in 1992 resulted in a hung jury. The government retried Cook again, and the death penalty was imposed by a jury a second time. In 1996, Cook’s conviction was again overturned, this time due to police and prosecutorial misconduct dating back to the initial investigation and trial of Cook in 1978. Despite the numerous setbacks, the government moved forward to retry Cook a fourth time. Due to the prior misconduct, however, the prosecutor in the case would no longer be able to use the testimony of a central witness in the case. As the trial for Cook’s life approached, the prosecution conceded that the case was looking increasingly weak. 

Having discussed the evolution of the plea-bargaining machine it will come as no surprise that the prosecutor responded to the significant likelihood of losing a trial by offering Cook a plea deal. In return for pleading guilty, Cook would receive a sentence of time served and walk out of prison. Cook refused, however, continuing to profess his innocence.

"Kerry [Max Cook] looked [his attorney] in the eye and said, “I want to be free, I want this behind me, but I will go back to death row, I will let them strap me to the gurney and put the poison in my veins before I lie, before I plead guilty." 

In response, the prosecutor offered Cook the same deal in return for an Alford plea. Cook could now plead guilty, while, at the same time, continuing to maintain his innocence. Cook took the plea agreement and, twenty-two years after being placed in prison, walked free. Two months later, a DNA test conclusively demonstrated that Cook was not a match to forensic evidence obtained at the scene of the crime in 1977. Though he had been induced to plead guilty, Cook was, in fact, innocent. 

I recommend both of the recent opinion pieces for your weekly reading list.


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