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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