Showing posts from 2020

New Article re Carlos Ghosn Case Includes Discussion of Plea Bargaining

The Asia-Pacific Journal has published a piece discussing the Carlos Ghosn case. While the entire investigation, prosecution, and flight from Japanese authorities is interesting, this particular piece also contains discussion of plea bargaining. As noted in the article, the prosecution of Ghosn stems, at least in part, from two Nissan employees reporting his alleged misconduct in hopes of receiving leniency under Japan's relatively new plea bargaining law. The piece goes on to compare criminal laws and procedures in Japan and the United States, including the use of pressure to induce admissions. From the article: Another striking similarity between Japan and the U.S. concerns the use of pressure to produce admissions of guilt. In both countries, protections for defendants on trial are relatively robust, but in the pretrial process much pressure is brought to bear on suspects to help the state obtain convictions... Interrogation in Japan has been the subject of much good research i

Federal Appeals Court Opinion Discusses Wired Pleas and Ineffective Assistance of Counsel

Those interested in case law regarding plea bargaining will want to take a look at the recent case of United States v. Melvin Knight (United States Court of Appeals for the District of Columbia Circuit, Decided December 8, 2020).  The entire opinion is available here .  The case involves interesting issues surrounding "wired pleas," the trial penalty, ineffective assistance of counsel, and the remedies available to co-defendants when the 6th Amendment is violated.  From the case:  In 2013, Melvin Knight and Aaron Thorpe were arrested for armed robbery and kidnapping.  They were charged by the U.S. Attorney’s Office in the D.C. Superior Court and offered a generous plea deal by the Assistant U.S. Attorney: plead guilty to a single count of assault with a dangerous weapon and no further charges stemming from these crimes would be filed.  Under the D.C. Superior Court Sentencing Guidelines, the likely sentences would be between two and six years for each defendant.  The plea off

New NACDL & FAMM Documentary on Plea Bargaining and the Trial Penalty

If you haven't watched the new documentary on plea bargaining and the trial penalty from FAMM and the NACDL, I highly recommend the film to you. The documentary, entitled "The Vanishing Trial," captures the difficult choices faced by defendants when confronting the trial penalty and focusses on four stories that leave the viewer with a vivid sense of the manner in which plea bargaining is jeopardizing our Constitutional right to a trial.  More information about the documentary and how to view the film is available here .  From the website: Imagine you’re charged with a crime. Now you must choose between pleading guilty and receiving a shorter sentence–or going to trial and risking decades behind bars.   “The Vanishing Trial” focuses on four individuals who were forced to make that excruciating choice.  Each was threatened with a “trial penalty,” the term used to describe the substantially longer prison sentence a person receives if they exercise their constitutio

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 2

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