Monday, December 21, 2009

PLEAS AND CONFLICTS

CONFLICT$

More than one little birdie has whispered in our ear that regarding the PD's office and the Regional Conflict Counsel's office we have it backwards: That Silent Charlie's real goal is to keep as many cases in his office as possible so as to squeeze the Regional Counsel's budget and ability to get sufficient money from Tallahassee to do their job. That may well be why Jay Kolsky is Miami's busiest PD. We hear that the PD office supervisors are holding a strong line against conflicts. More than one person has emailed us to "follow the money" a la Deep Throat's advice in Watergate. Any thoughts?

PLEAS.

We've been traveling the country wrapping up cases, handling new ones, and spending lots of time reading the Wall Street Journal and plotting our path to financial independence. Picking up 2000 shares of Goldman Sachs over the course of last December when the world was seemingly ending, at an average price of $71.50 has been a pretty good call. GS closed at 163 and change on Friday.

Anyway, we saw this article in the WSJ on a plea bargain gone bad, and we commend it to you:

By JOHN R. EMSHWILLER and NATHAN KOPPEL
Wall Street Journal
December 19, 2009

A surprise twist in the criminal case against Broadcom Corp. co-founder Henry Samueli again raises questions about plea bargains, one of the most important and controversial aspects of the justice system.

In a Santa Ana, Calif., court last week, federal Judge Cormac Carney dismissed the criminal complaint charging Mr. Samueli with lying to the Securities and Exchange Commission in its investigation of whether Broadcom misstated its earnings by improperly accounting for executive stock options. Judge Carney's dismissal came even though Mr. Samueli had stood before him in 2008 and pleaded guilty to that very crime.

Mr. Samueli did what lawyers and legal scholars fear a disturbing number of other people have done: pleaded guilty to a crime they didn't commit or at least believed they didn't commit. These defendants often end up choosing that route because they feel trapped in a corner, or fear getting stuck with a long prison sentence if they go to trial and lose.

The evolution of the criminal-justice system in recent decades has put many defendants "under all but impossible pressure to plead guilty, even if they're not," said Yale law Prof. John Langbein, a critic of the plea-bargain system.

The dismissal came immediately after Mr. Samueli testified before Judge Carney as a defense witness in the criminal trial of former Broadcom Chief Financial Officer William Ruehle, who was charged with fraud in the options-granting activities. Judge Carney then called him before the bench and said he was setting aside Mr. Samueli's guilty plea and dismissing the case against him.

The judge said he had concluded that while Mr. Samueli's answer to the SEC was "ambiguous, evasive and arguably nonresponsive," it wasn't materially false. Judge Carney later dismissed the charges against Mr. Ruehle.

Mr. Samueli signed the plea agreement believing he may have violated the law, but that belief was based on the prosecutors' distortion of the evidence, said his attorney, Gordon Greenberg. "The government put incredible pressure on" Mr. Samueli, he said. The U.S attorney's office declined to comment.

...

One reason for false pleas is that potential prison sentences, particularly on the federal level, have increased for many crimes. This has helped put more power into the hands of prosecutors, who decide what charges and how many counts to levy against a defendant. ...

In the Enron scandal, for example, former Chairman Kenneth Lay, former President Jeffrey Skilling and former Chief Accounting Officer Richard Causey were charged with fraud and conspiracy and set for trial together in early 2006. Shortly before the trial, Mr. Causey reached a deal with prosecutors, pleading guilty to one count of securities fraud, and was sentenced to 5 1/2 years. At trial, Mr. Skilling was convicted on 19 counts and received a more than 24-year sentence. (Mr. Lay was convicted on 10 counts but died shortly after the trial.)

Few plea bargains are ever seriously challenged. The Innocence Project at the Benjamin N. Cardozo School of Law specializes in using DNA evidence to find prisoners who have been wrongly convicted of murder or other serious crimes. The project has represented 17 defendants who pleaded guilty even though DNA evidence later proved their innocence, said co-director Peter Neufeld. "Our clients plead guilty, because if they go to trial and lose they could get a death sentence," he said. "They plead guilty to save their lives."

...


The government doesn't have the means to bring every defendant to trial.

"If every defendant in every county jail got off the chow line this morning and decided he or she wanted a jury trial, the system would implode," said Brice Wice, a Houston criminal-defense lawyer who specializes in handling appeals. Often, he said, it is defense lawyers, rather than prosecutors, who exert pressure to sign guilty pleas. "They tell their clients, take this or you'll get life," Mr. Wice said.



26 comments:

rick freedman said...

Dan Tibbitt & Peter Sauter, I can't believe it ended the way it did. Sorry you guys got knocked out. I was hoping all three of us could run this thing thru week 17 and make it to the playoffs.

Great job by Tibbitt and Sauter. I was amazed to see the Broncos lose and while they were my first choice this week, I was looking ahead to the final week and realized that they were my only sure bet for week 17. So I went with the Texans instead. Can't believe Jamarcus Russell & the Raiders knocked you guys out and that it is finally over.

For my final two weeks I was looking at the Cardinals and Broncos.

Rumpole, great year. Good luck on your Gints pick tonight.

Can't wait to play again in 2010. Happy holidays to all.

Rick

Anonymous said...

Plea bargains aren't perfect, but they routinely work the defendant's benefit (ie. the defendant gets a far lower sentence than what the case is really worth). Regardless of whether you believe that or not, don't just whine about the system. Tell us how to improve it. How you replace plea bargains?

BTDT

Anonymous said...

Don't just cram this down the throat of prosecutors. Many defense attorneys pled out the client to move on to other PAYING clients. Many defense attorneys are as dumb as a box of rocks and know it. Many defense attorneys make a living out of making deals with prosecutors early on for quick cash in turn a innocent man becomes a guilty man.

Does Broward actually have the solution? Seitz says let the Jury decide, no plea deals? Maybe he is covering his ass?

The Judges have to step up to the plate. Start to deny plea deals that seem odd. Stop the trial tax on cases that are just not clear cut on the facts and evidence presented at trial. If a case goes to trial and a reasonable mind could have gone either way, but the jury results in a guilty verdict, why not just sentence to the original plea offer?

Anonymous said...

only way to follow the money is for you to do a public records request for the list of employee salaries.

the jac represents the a problem for the pd and his cronies because the legislature will see that pd work can be accomplished for a much cheaper price. Follow the money and you will see that c. david weed makes 235k per year doing hybrid eru work.

Anonymous said...

the PDO's office in Miami is a joke. The ethos back in the day was go to trial or loose your job. Back then, defendants were treated fairly. Today, if you are a prolific trial lawyer you are view as reckless!

Anonymous said...

Two comments Rump.

First, as a line PD, I hate to conflict off cases unless real and legitimate conflicts can arise from representation. This is because I fear the job that RCA will do in representing my clients. (conflicting because our office represented the victim in a prior petit theft is bullshit) I am aware we have some shitty PDs, but for the most part, I feel like our clients are better off with the PD than RCA any day of the week. I think our clients are better off with the PD than most privates for that matter.

To your second post Rump, I couldn't agree more. It is the trial tax. We see it from our ASAs here in Miami and we see it across the country. Defendants often faced ridiculously long jail sentences and are usually offered some plea agreement that is really about money. It sickens me. I see defendants taking pleas all the time because they rather just pay and get it over with. Defense attorneys should be trying more cases. Easy for us to say, we go home no matter the verdict.

Anonymous said...

The problem is with the prosecutors. They should not be offering pleas which are not just resolutions.

Eye on Shumie Time said...

AP. Cambridge Massachusetts.

"SHUMIE PARADOX" solved? A team of MIT mathematicians have announced a partial solution to the so called Shumie Paradox. The paradox is as follows: If you can make more money working less, as the Shumie Time adherents have proven, then you should be able make the most money not working at all. But of course this is not possible.

Vitmar Shamaresh, who holds a PHD in applied Mathematics at MIT said " much like the approach of limits in simple calculus, the big mistake in prior attempts to solve the Shumie Paradox was assuming that time of work, represented as T had to consistently rise as money earned M rose. Thus is could be said and proved that as T approached zero, M approached infinity.
The key to solving this alleged paradox is not trying to prove that when T IS zero that M IS infinity. it is simply acceptable to prove that as T APPROACHES zero that M APPROACHES infinity. So long as you do that, the paradox is solved."

The solution has been submitted for publication in MIT's Journal Of Applied Mathematics for February 2010

Anonymous said...

Monday, December 21, 2009 11:16:00 AM

You speak TRUTH!!!!

Also a line PD.

Friend of Peter Sautter said...

Dear Rick and anyone else who's writing about my friend please take note that Peter Sautter spells his last name with two t's not one - let's spell his name correctly. Thank you very much. And no, I am NOT Peter Sautter, just an interested friend.

Anonymous said...

The comments about plea bargains and trials does not take into account a number of considerations, other than the trial tax. If there is more than one count, one could get convicted of the more serious one, while one could have plead to the less serious count, thereby avoiding a more serious sentence. Of course, if one is not guilty, I say he shouldn't plead at all. Also, some clients can only get out of jail by pleaing, and avoid lengthy jail stays despite innocence. There are many situations in Florida whare judges can pounish the innocent, and often do, without trial or hearing, such as VOPs and arrests after being on bond. One can spend 60 days to a year or more awaiting a trial or a hearing, even on non-violent, bullshit crimes and Vops based on non-payment of fines or restitution. I agree, we should try and push to hearing all cases, but the clients are the ones that suffer, not the judges, the prosecutors, other citizens, or the government. I simply wish the government, the judges, and the prosecutors were more interested in justice than simply convictions and clearing dockets.

Two T's Fan Club (so mia chp) said...

The South Miami chapter of the "Two T's" Peter Sautter fan club will hold it's next monthly meeting on Tuesday December 29 at 7:30 at Fox's Sheron Inn on US 1 in South Miami. Newcomers welcome!!!!

An Ex BlackJack Dealer said...

To the folks who say defense attorneys should take more cases to trial my reply is "it just depends..." All of us have had cases we think we can win and the case goes away because the State offers our clients a real sweet plea. Sometimes PTI, sometimes a withold and court cost ect... It is hard to tell your client to take a shot when these kind of plea offers are extended. I like to gamble but not with my clients freedom or with having a criminal conviction which last the client the rest of their lives. This means that sometimes you take a deal that is in your clients "Best interest".

9:28, what your saying may have a ring of truth to it but most lawyers who last in the criminal arena are pretty straight with their clients and most lawyers work to get reasonable offers for their clients. That's how we get more clients. The lawyers that you see over and over again are generally the ones that give a good effort for their clients.

Finally, to the person or persons with the Shumie jokes. Give it a rest , telling the same type jokes over and over and over again is not funny , it's just boring. Shumies an excellent lawyer but the jokes have run their course.

Anonymous said...

Thanks for the correction "friend" of Sautter........ I'm sure Peter is devastated by the fact Rick misspelled his name. Let's make a Federal case out of it.............

Anonymous said...

Why is it referred to as a "trial tax."? Isn't it at least as accurate to say that people who plead are given a "plea discount"?

I mean, seriously, does anyone want the State's offer to be controlling as the "right sentence" from the point it is first made through sentencing?

You "tough guys and gals" who think you'll prove something by trying cases which should be worked out? Ask the Bar whether that's EVER appropriate-- even in civil cases. Easy to gamble with someone else's stake.

Anonymous said...

Transparency re the trial tax would induce more accused going to trial. Let the accused know what they WILL get if they lose. A gambler knows what they are going to lose when they put down a bet, why should the accused be subject to not knowing the potential actual loss. Make it something reasonable based on priors, seveity, and involvement, not just a knee jerk reaction to the max. Judges know the facts of the case before the trial because they ex-parte with the State all the time re the cases. Judges must be willing to give people trials even if it means working more than 20 hours a week. Anyone who scores NSPS and goes to trial and loses and is sentenced to state prison must be granted immediate non mometary superceedaus bond and have their sentence immediately reviewed and reversed for vindictive sentencing. There should be more sentences immediately appealed and reversed per North Carolina v. Pearce for vindictiveness. There should also be a database with the judges sentencing for the last 3 years after trial. It would include the accussed's name, private or PD representation, guidelines, statutory max, ultimate sentence. Not to hard. Most judges will probably try about 20 cases a year. Judges should try one trial a week. Give the people trials. Judges sentencing records should also be published and reviewed for fundamental fairness (PD v. Private) (Trial tax, ect.) Any Judge who is abusive is banished to Dependency forever.

Anonymous said...

"The problem is with the prosecutors. They should not be offering pleas which are not just resolutions."

This is the kind of useless comment that makes resolution of any issues so difficult. The problems are that there some arrests shouldn't be made, some prosecutors don't know what their doing, some defense attorneys just want to get paid and some judges are clueless (there are more, but that should suffice). You can't blame anyone one group for the problem. There's good and bad everywhere.

The reason nothing changes is that we can't have an intelligent conversation (let alone implement any fresh ideas) about anything. The folks who give a damn are blocked by the whiners and attackers. And, that's unfortunate.

BTDT

Anonymous said...

Was that the most embarrassing display of football. And that final play of the first half was a joke. Hey dan snyder get a new coach or fire the owner.

Anonymous said...

is the trialmaster jack denaro?

Anonymous said...

It's Shumie time for Shumie jokes.

Anonymous said...

"I mean, seriously, does anyone want the State's offer to be controlling as the 'right sentence.'?"

I mean seriously, does anyone want the lawyers for the State to try and do justice? In court? Like justice is to be had in that sewer.

Anonymous said...

7:55 pm - you are the perfect example of a trial sissy.

Your "logic" is flawed and results in the accused pleading guilty because they don't have faith in their lawyer who they understand is scared....

Anonymous said...

7:59.........I think you missed his point. He doesn't sound scared of trial to me. He sounds like he's rationally considering the pro's and con's. It's easy to gamble when you go home regardless of the verdict. The fact is that it's in the defendant and state's best interests to close the vast majority of these cases. That's why only a tiny percent go to trial. Sorry, but I don't buy that cavalier attitude you're projecting here. I bet you, like everyone else, pleas most of your cases.

BTDT

Anonymous said...

rump: have you seen the TRIALMASTER UP THERE? I HEAR THAT HE HAS A PLACE IN HEAVENLY....

unjustlyjustice said...

The problem is with the prosecutors. They should not be offering pleas which are not just resolutions.

How true this is! Look around you. How many cases have we seen which should never, ever have been filed? Where was the probable cause? Where was any actual evidence and not just assumptions, gossip or evidence which can barely be called? I'll tell you where all those things were: in the mind of the detective who did a half assed investigation. It was in the mind of some young buck prosecutor who wanted to make a name for herself or himself by filing a case.

What we should be asking is where did that prosecutor's ethical duty of not filling cases they know they can't prove go? What happened to actually doing your job of reviewing actual evidence and making a fair legal determination of whether you actually can file a case?

So many Defendants get plea deals which are not just ridiculous but insulting. They have no semblance of a "just plea". These pleas are nothing more than "victims" (who are often little better than the Defendants) legally exacting revenge. And guess what?! Their ally: Prosecutors who have chips on their shoulders or see themselves as John Wayne

Anonymous said...

I am an out of town attorney. What is the scoop on Judge Stacy Glick? Is she fair to defs and does she know what she is doing. all input would be appreciated. thanks