System of Plea Bargains Over Trials Has Some Dicey Consequences

Categories: The Courts

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Justice, it's all relative.
In the course of reporting the recent Observer feature on wrongful convictions based on wrongdoing by prosecutors and police, an interesting tangential point surfaced multiple times. It was the reminder by several lawyers that wrongful convictions are all cases that went to trial, but that there are many other defendants, in numbers impossible to determine, who took plea deals out of fear rather than face a jury.

A Supreme Court opinion published earlier this year by Justice Anthony Kennedy, points out "the reality that criminal justice today is for the most part a system of pleas, not a system of trials. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas."

His opinion was quoted in yesterday's New York Times editorial noting that plea deals often wipe the appeals process out of the equation. With that, if a person agrees to a guilty plea based on a lawyer's bad advice or a prosecutor's purposeful or inadvertent withholding of evidence, that defendant has significantly diminished options for legal recourse. Specific waivers included in many plea bargains wipe out the ability to appeal.

Less than 2 percent of criminal cases in Texas went to trial last year, according to the Texas Office of Court Administration, sourced by Grits For Breakfast, which points out that among the overwhelming majority of cases settled with plea bargains, there is wide discrepancy from county to county as to what evidence is accessible by the defense while making their decision.

"The process is closer to coercion," the Times editorial argues, adding that prosecutors charge defendants with a more serious offense, bargaining them down to something more akin to the actual crime. It's a barter system in which prosecutors often have the upper hand in resources and power. Most defendants take the best deal they can get, even if they feel they've been ripped off.

All of this is why it's interesting that a Colorado judge rejected a plea bargain in his federal district court partly because the defendant in a child pornography case was about to sign away his right to appeal. "The prosecution of Defendant Timothy John Vanderwerff has been characteristic of modern criminal justice," Judge John Kane wrote in the first line of his order rejecting the plea. He later continued, "The glut of plea bargaining and the pandemic waiver of these rights [presenting evidence, calling witnesses, etc.] have rendered trial by jury an inconvenient artifact." Kane insisted the case go to trial so the higher court could ensure the integrity of the conviction.

A nationwide study of federal cases revealed that agreements included waivers in two-thirds of cases. "Without an appeals court's policing," the Times editorial concludes, "Our system of pleas then looks more like a system of railroading."

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9 comments
MarkO
MarkO

Have spend hours and days at the court house thank you very much. Usually waiting on a lawyer that told me to he there at 9am. Of course he can't be bothered to show up on time he has more important things to do. When he finally shows up it is usually too late because the judge has left the building. Most overheard remark in the halls of Frank Crowley. Lawyer to client "the judge and I are personal friends". 

Jay
Jay

Bingo. The USA has more prisoners than any other country in the world, and more than half are incarcerated for non-violent drug offenses. The DEA's and state's war on drugs has created a politically generated appetite for ever expanding budgets in the billions of dollars ($40 billion/year for enforcement), just like the "Military Industrial Complex" Eisenhower warned of over 60 years ago. Toss in privatized prisons with beds to fill "for profit" and the ever corrupting influence of campaign contributions to judges and DA's by those with vested interests in prisons and supplying equipment and services to the DEA and local drug enforcement efforts, and you have a recipe for a judicial system that is designed to provide a never diminishing supply of convicts ripe for the grist mill. Illegal substance use (primarily marijuana) is, in most cases, less harmful than alcohol or prescription drug addiction and abuse. It is ironic that the current and previous two presidents have more or less admitted use of illegal drugs in their younger days. Drug use, where legalization is not appropriate, should be treated as a mental heath issue, not a criminal issue. But don't hold your breath on drug enforcement reform, there are just too many a with vested interest in continuing to ramp up yet another failed government interdiction "program." I just don't understand how any rational thinking person can't see that the devastating effects the war on drugs has on individuals, communities and countries (say Mexico) is tremendously more destructive than the illegal use of drugs. BTW, I don't use drugs.

Debbie Zimm
Debbie Zimm

 This fellows Rockwall case might be typical. The police took an illegal fishing trip into his parked car, falsified the arrest report, and lied under oath in court. The district attorney refused to turn over the arrest report to the defense and withheld the vehicle inventory documenting police perjury. The State's legal extortion prompted the defendant to plead guilty with a right to appeal (it is not automatic). The successful appeal rate in similar cases is abominable. The original prosecutor, from Wikipedia: “Louis William "Bill" Conradt, Jr. (January 30, 1950 – November 5, 2006) was a district attorney in Texas. He became inextricably linked to Dateline NBC's To Catch a Predator, a TV series which conducted sting operations against suspected sexual predators. Local law enforcement conducted a sting operation that identified Conradt as a suspect and Dateline cameras recorded the events that followed. Conradt fatally shot himself upon encountering SWAT team members that were serving an arrest warrant at his home.” The defendant is a fugitive and has gone public with complete documentation of this legal terrorism. Open letter to Judge Brett Hall: https://docs.google.com/document/d/1nyzlyOROVYLQSaCXMlbQixwSK_rcP9uhXMJ4tg7LV9c/edit?

Diana Powe
Diana Powe

It is unconscionable that the law does not require prosecutors to provide unhindered access to case files and evidence by defense counsel. Many prosecutors, especially in straightforward misdemeanor cases, will do it on their own but it should be a requirement. If your case is so fragile that you have to be able to spring testimony and evidence on the defense by surprise, that's a big clue that you shouldn't have a case filed with the court.

SCamp
SCamp

What about the cop and the fake cocaine a few years back. Frame a Mexican, throw him in jail without bail for a few months, then offer him time served if he pleads guilty. Otherwise a 6 month delay in the trial while he remains in jail and a more serious charge. Think about it if you are traveling - you are in a 3rd world prison, you get offered time served and a ticket out of their country. What would you do? 

Mike
Mike

How about the possibility that they really did it? Very, very few cases require any kind of Columbo type investigation. Most assaults are by family members, the police catch them with drugs in hand, they are driving the stolen car, etc. Most criminals are low life scum that probably could not pour water out of boot if you told them the instructions were printed on the heel. The really complicated cases do not seem to be rushes to judgement. Yes, somebody rich probably can work system and maybe get a better deal. It still does not mean we have a big number of innocent people in prison. We probably have people that are doing 10 years that would do 3 if they were rich. Big deal. Still guilty.

Guest
Guest

Do you have any idea how many cases are on each judge's docket.  Thousands.  Trying them all would require several trials each day, every day of the year.  A criminal trial can take anywhere from a day to several weeks.   There simply isn't enough time in the year to try even a fraction of the cases.  We don't fund our courts well enough to handle the load, particularly at the state and county level.  Some of the judges work very hard. Some put in 9-5 days (which in the legal profession is slacking).  I don't know any that regularly only work half days.  You should understand that a judge's job isn't just sitting on the bench in a court room.  There is at least as much work behind the scenes (actually far more work behind the scenes in federal court).  The volume of paperwork alone is monumental, and our state judges in particular have very little help to deal with it.  The problems you identified are all symptoms of a dysfunctional justice system, but lazy judges are so infrequent that they don't move the needle in terms of the quality of our justice system.  I'd be far more concerned about the pressures on elected judges and prosecutors to delver publicly desirable outcomes (which often are not just); the over-criminalization of our society putting too many people into the system; under-funding of the courts, the prosecutors, the defendants, and the prison/rehabilitation systems; etc., etc.  

james
james

our 'justice' system is a bad joke and we the people are dam tired of bein' the butt of this bad joke.

MarkO
MarkO

What the hell. You expect judges, DA's and lawyers to actually work. Here's the system. Judges do not want to hear a case, period. If they had to hear cases they might have to actually work an 8 hour day 5 days a week. No, most jugdes work days end at noon. It is up to the DA and your lawyer to work out a plea deal.  DA will offer to prosecute you under a lesser charge, reduce the sentence a bit, lower the fines, put you on probation and your lawyer's job is to sell it to you. Because if you don't take this they will come after you to the full extent of the law. Take what they offer or you could go to jail for years, and did I mention that going to trail is going to cost you another 10 grand. They don't practice law at Frank Crowley, it's just a legal extortion racket. 

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