Frontline
A couple nights back, I caught a rerun of an old Frontline investigation on plea bargaining. The journalists picked three examples of the criminal justice system reaching imperfect results. In two cases, men chose to take a deal when they were most likely factually innocent. In the third, a woman refused to take a deal, to her own detriment.
One of the men was charged with homicide of some sort and ended up being pressured into a deal, so he claimed. One of the key factors in his decision was the presiding judge's representations that the defendant would be released on parole after a certain date. Of course, that date has long since passed and the man remains in prison. The story told by the lay people, including the father of the victim, was that the plea was essentially coerced. Subsequently, the father of the victim investigated on his own and came to the conclusion that the defendant may have assaulted his son, but the defendant did not kill his son.
In another, a man on death row took a deal when he was demonstrably innocent. He had twice been tried for murder and rape, twice the death penalty was imposed, twice the verdicts were set aside. At the third (or fourth?) trial, he was offered a time-served deal, which he took because he was essentially worn down. Subsequently, DNA evidence basically exonerated him, although the prosecutors continue to maintain that the defendant was guilty.
In the third, a woman was convicted of murder and robbery, all based on a very questionable identification. In fact, the warden at her prison asked some NYU law professors to look into her case. Years after her conviction, a Federal court granted habeas relief, and the prosecutors put a deal on the table. Her attorneys understood that the climate at the Federal Court of Appeals in that circuit was not favorable, and strongly urged her to take the deal. They understood that the window was rapidly closing and that this opportunity would not present itself again. Nevertheless, she felt that she could not tell a lie. Sure enough, the Federal Court of Appeals reinstated the conviction.
What I thought was most interesting, was this sense that these cases are examples of the system breaking down. There is this sense, which I believe is naive, that if you just tell the truth, everything will be fine. Often, this is the case. But, you don't have to look very far, perhaps as far as Illinois and their situation on death row. Often, the truth will set you free, but not always. And the thing was, this sense of outrage was coming from law professors and criminal defense lawyers.
I tell my clients that a trial is a risky thing. I tell them that the decision to enter a plea is theirs alone. I tell them that every trial comes down to the particular defendant. If the principle is important, then we should try the case. However, if managing risk is what important to them, then we should take the deal.
So I found this Frontline investigation somewhat amusing. True, our system is flawed. True, I hope that none of my friends or loved ones ever gets caught up in the criminal justice system. True, sometimes, my clients get screwed. But, I don't know of any better system and I have to conserve my outrage for the most obvious situations. Otherwise, I wouldn't be able to continue doing this.
One of the men was charged with homicide of some sort and ended up being pressured into a deal, so he claimed. One of the key factors in his decision was the presiding judge's representations that the defendant would be released on parole after a certain date. Of course, that date has long since passed and the man remains in prison. The story told by the lay people, including the father of the victim, was that the plea was essentially coerced. Subsequently, the father of the victim investigated on his own and came to the conclusion that the defendant may have assaulted his son, but the defendant did not kill his son.
In another, a man on death row took a deal when he was demonstrably innocent. He had twice been tried for murder and rape, twice the death penalty was imposed, twice the verdicts were set aside. At the third (or fourth?) trial, he was offered a time-served deal, which he took because he was essentially worn down. Subsequently, DNA evidence basically exonerated him, although the prosecutors continue to maintain that the defendant was guilty.
In the third, a woman was convicted of murder and robbery, all based on a very questionable identification. In fact, the warden at her prison asked some NYU law professors to look into her case. Years after her conviction, a Federal court granted habeas relief, and the prosecutors put a deal on the table. Her attorneys understood that the climate at the Federal Court of Appeals in that circuit was not favorable, and strongly urged her to take the deal. They understood that the window was rapidly closing and that this opportunity would not present itself again. Nevertheless, she felt that she could not tell a lie. Sure enough, the Federal Court of Appeals reinstated the conviction.
What I thought was most interesting, was this sense that these cases are examples of the system breaking down. There is this sense, which I believe is naive, that if you just tell the truth, everything will be fine. Often, this is the case. But, you don't have to look very far, perhaps as far as Illinois and their situation on death row. Often, the truth will set you free, but not always. And the thing was, this sense of outrage was coming from law professors and criminal defense lawyers.
I tell my clients that a trial is a risky thing. I tell them that the decision to enter a plea is theirs alone. I tell them that every trial comes down to the particular defendant. If the principle is important, then we should try the case. However, if managing risk is what important to them, then we should take the deal.
So I found this Frontline investigation somewhat amusing. True, our system is flawed. True, I hope that none of my friends or loved ones ever gets caught up in the criminal justice system. True, sometimes, my clients get screwed. But, I don't know of any better system and I have to conserve my outrage for the most obvious situations. Otherwise, I wouldn't be able to continue doing this.
posted by swd at 10:59 PM
5 Comments:
I've had several awkward conversations with clients along the lines of: "But I didn't do anything, why am I in jail?" "Because you can't make bail and the judge has refused to lower it." "But I didn't do anything!" "I know, but we have to wait until trial before anyone else knows that." "What would happen if I pled guilty?" "The judge would give you probation." "So would I get out of jail then?" "Yes." And on it goes. That's the depressing part. And also why I would rather have guilty clients than innocent ones.
And still, people ask the question, "Why would anyone plead guilty to something they didn't do?"
By the way, was that second example the Kerry Max Cook case? It sounds like it--I am pretty familiar with it because it took place very near where I went to high school. For whatever it's worth, there was a ton of prosecutorial and police misconduct in that case, some of which was responsible for at least some of his reversals. The guy got his capital conviction reversed in Texas, of all places, multiple times. That doesn't happen unless there's some major shenanigans going on, and trust me, there was.
TXPD -- yep, it was Kerry Cook. I couldn't find anything on the Frontline site about him, which is odd, because I thought his was the most compelling case. However, I image.googled him, and he is the fellow.
I couldn't believe the prosecutor: if the co-defendant's testimony was so biased as to be inadmissible, and the co-defendant is the only evidence linking the defendant to the incident, how can one possibly be so certain that Cook did it??
I wish that all cases were required to go to trial. No deals, no settlements, no BS. With all of the bargains and deals, innocent people now have to decide between the lesser of two punishments, and the guilty parties who have the most money can just buy their way out of jail.
One suggestion for a better system: one in which unquestionable factual innocence proven by evidence discovered or techniques invented after trial were a per se basis for vacating a conviction (cf federal habeas standard).
Post a Comment
<< Home