Monday, November 03, 2014


NOTE: We took this from DOM's blog. But this is just too damn important to pass up. 

Judge Jed S Rakoff wrote this brilliant piece in the NY Review Of Books. 

How prevalent is the phenomenon of innocent people pleading guilty? The few criminologists who have thus far investigated the phenomenon estimate that the overall rate for convicted felons as a whole is between 2 percent and 8 percent. The size of that range suggests the imperfection of the data; but let us suppose that it is even lower, say, no more than 1 percent. When you recall that, of the 2.2 million Americans in prison, over 2 million are there because of plea bargains, we are then talking about an estimated 20,000 persons, or more, who are in prison for crimes to which they pleaded guilty but did not in fact commit.

Every Judge and Prosecutor should be required to read this. 

More from the article:

One thing that did become quickly apparent, however, was that these guidelines, along with mandatory minimums, were causing the virtual extinction of jury trials in federal criminal cases. Thus, whereas in 1980, 19 percent of all federal defendants went to trial, by 2000 the number had decreased to less than 6 percent and by 2010 to less than 3 percent, where it has remained ever since.
The reason for this is that the guidelines, like the mandatory minimums, provide prosecutors with weapons to bludgeon defendants into effectively coerced plea bargains. In the majority of criminal cases, a defense lawyer only meets her client when or shortly after the client is arrested, so that, at the outset, she is at a considerable informational disadvantage to the prosecutor. If, as is very often the case (despite the constitutional prohibition of “excessive bail”), bail is set so high that the client is detained, the defense lawyer has only modest opportunities, within the limited visiting hours and other arduous restrictions imposed by most jails, to interview her client and find out his version of the facts.
The prosecutor, by contrast, will typically have a full police report, complete with witness interviews and other evidence, shortly followed by grand jury testimony, forensic test reports, and follow-up investigations. 
Against this background, the information-deprived defense lawyer, typically within a few days after the arrest, meets with the overconfident prosecutor, who makes clear that, unless the case can be promptly resolved by a plea bargain, he intends to charge the defendant with the most severe offenses he can prove. Indeed, until late last year, federal prosecutors were under orders from a series of attorney generals to charge the defendant with the most serious charges that could be proved—unless, of course, the defendant was willing to enter into a plea bargain. If, however, the defendant wants to plead guilty, the prosecutor will offer him a considerably reduced charge—but only if the plea is agreed to promptly (thus saving the prosecutor valuable resources). Otherwise, he will charge the maximum, and, while he will not close the door to any later plea bargain, it will be to a higher-level offense than the one offered at the outset of the case.

Third, and possibly the gravest objection of all, the prosecutor-dictated plea bargain system, by creating such inordinate pressures to enter into plea bargains, appears to have led a significant number of defendants to plead guilty to crimes they never actually committed. For example, of the approximately three hundred people that the Innocence Project and its affiliated lawyers have proven were wrongfully convicted of crimes of rape or murder that they did not in fact commit, at least thirty, or about 10 percent, pleaded guilty to those crimes. Presumably they did so because, even though they were innocent, they faced the likelihood of being convicted of capital offenses and sought to avoid the death penalty, even at the price of life imprisonment. But other publicized cases, arising with disturbing frequency, suggest that this self-protective psychology operates in noncapital cases as well, and recent studies suggest that this is a widespread problem. For example, the National Registry of Exonerations (a joint project of Michigan Law School and Northwestern Law School) records that of 1,428 legally acknowledged exonerations that have occurred since 1989 involving the full range of felony charges, 151 (or, again, about 10 percent) involved false guilty pleas.

 Research indicates that young, unintelligent, or risk-averse defendants will often provide false confessions just because they cannot “take the heat” of an interrogation. Although research into false guilty pleas is far less developed, it may be hypothesized that similar pressures, less immediate but more prolonged, may be in effect when a defendant is told, often by his own lawyer, that there is a strong case against him, that his likelihood of acquittal is low, and that he faces a mandatory minimum of five or ten years in prison if convicted and a guidelines range of considerably more—but that, if he acts swiftly, he can get a plea bargain to a lesser offense that will reduce his prison time by many years.
Rumpole says:  Just don't tell us that we have the greatest legal system in the world. We don't. 

See you in court, where we are one of the 3% that goes to trial. 


Anonymous said...

Sometimes a guilty plea is the only control you have over a situation to mitigate it's effect.

Anonymous said...

How interesting this post came this week. Perfect timeing!

Last week, I plead out a truly very innocent man to Agg Child Abuse, 1 year CC, 10 years probation that started as a 25 min mand L&L. Initial Arthur Hearing with other lawyer who did a good job but, didn't have enough time to prepare for the hearing resulted in no bond hold. I got the case and begged to reopen. When I showed the judge "the rest of the story," he set $500,000.00 bond and total lock down at home. He couldn't work for a year.
1. No scientific evidence he fondled the 7 year old girl. No controlled calls. Just kid's word against 64 year old man never been arrested or accused before.
2. The whole thing was concocted by the father of the client. Father of child had long grudge against my client and put her up to saying it.
3. Father said he saw it but, at Arthur hearing changed story and couldn't have seen it from the kitchen. This was not reported to the police for many days!!!!
4. Kid was overheard being yelled at by her father by an aunt later for not making up the story... coached.
5. Client passed my poly and MDPD poly. Metro poly guy told client to expect charges to be dropped. (How do you explain that to the client a month later when the plea offer is now 10 years CC???
6. Client waived all Miranda rights and denied it.
7. We offered police and ASA to let us make controlled calls to the "other side." ASA told me they don't have to help us show innocence.
8. Father of child has 2 domestic injunctions and about 10 arrests. Was out on bond at time this happened. Father has long history of drug and alcohol problems and arrests.
9. I appealed all the way up the chain of command and all said that as long as the ASA believes the kid, they go forward.
10. When client was in jail for many months before the second Arthur hearing, his cell mates all kept in touch. A few later told him they got the 25 min mand and told him not to roll any dice. Boy did that scare the client.

So, over my objection, client took the plea. I respect him but, I wanted to demand speedy to get a 2 minute not guilty. I told the client that I don't do the time so the decision was his to make and he was far more interested in being home, going to work and supporting his wife, who has cancer. He's a good husband.

Congratulations, criminal justice system, you used your 25 year min mand to railroad an innocent man to become a convicted felon.

Anonymous said...

Honest to goodness, the bars weren't open this morning
They must have been voting for a new governor of something
Do you have a quarter?
I said, "Yes", because I did, honest to goodness
The tears have been falling all over this country's face

It was better before, before they voted for 'What's his name'
This is suppose to be the new world
It was better before, before they voted for 'What's his name'
This is suppose to be the new world

Read more: X - The New World Lyrics | MetroLyrics

Anonymous said...

Love the Ronald Regan bashing. Good to see John Doe call out that murderous bastard on election day.

"As every cell in Chile will tell
The cries of the tortured men
Remember Allende and the days before
Before the army came
Please remember Victor Jara, in the Santiago stadium
Es verdad, those Washington bullets again."

Anonymous said...

7:43, what's the name of the ASA who did not want to do the controlled calls becuase they don't have to help you show innocence? Obviously, that's an ASA intersted in convictions and not on getting justice and finding the truth and we all can benefit by knowing who that is.

Jackson Browne said...

They sell us the president the same way
They sell us our clothes and our cars
They sell us everything from youth to religion
The same time they sell us our wars

I want to know who the men in the shadows are
I want to hear somebody asking them why
They can't be counted on to tell us who our enemies are
But they're never the ones to fight or to die

Anonymous said...

Call Mike Catalano to find out about the ASA.

Anonymous said...

7:43 and 12:25........let me offer the flip sides of doing controlled calls to the victim:

1. If the ASA had any real doubts about the case, he or she should have dropped it without the necessity of a controlled call or calls. Period.

2. There would have been no harm in doing the calls you say? Not true. The call would undermine the relationship between the victim's family and the police/SAO.

I don't know enough about the case to know what I would have done when I was a prosecutor, but it's not as black and white as you make it seem.

Further, I'm curious about the following:

1. 7:43........who did you want to do the proposed call? The defendant?

2. What efforts did you make to depose the child? What experts did you hire to question her credibility and consider issues such as coaching?


PS---I'm not judging you, 743. It sounds like your a committed and passionate advocate and have nothing but the highest respect for you as a result.

PS2---I'm not saying that innocent people never take pleas and, like anyone with a conscience, hate that some of them do. The reality is that if someone is convicted of L&L at trial they're going to prison for a long, long time. So ending min mins won't really solve the problem completely. What do you suggest?

Anonymous said...

I always enjoy reading this blog and the author of this post makes very important and factual points. But, as a former prosecutor, criminal defense lawyer and now judge there is one unmentioned variable that is most important. That is, the innocent defendant's mistrust of the jury.

A guilty defendant often has much more courage to roll the dice. An innocent is faced with wondering whether the jurors are possessed of common sense and truly care.

Lawyers often ask jurors, "Did you leave your common sense at the door?" The juror's answer is uniformly "No." But who is to say what their common sense is? Do the jurors really believe law enforcement more? Do they really need to hear from the defendant? Do they really think Charlie Crist will still be a Democrat if he wins and Jeb becomes President?

Common sense has been leaving us for decades. Yet its the one tool we consistently ask jurors to use. That thought alone, in my opinion, would make many an innocent person plead guilty.

Anonymous said...

So they brainwashed a kid to make a false allegation. I wish I could brainwash my kid to clean his room.
Why do you think the ASA believed the kid?

Anonymous said...

753..........you bring up a good point........getting a kid to do anything consistently can be very difficult as any parent could attest.

I'd like to think that the prosecutor spent enough time with the child to reach a reasonable conclusion, but, really, none of us can possibly know if that was the case (again, I wasn't judging by my earlier post. I was just saying that the issue is not so black and white. In this situation, we've only heard one side of the story from an apparently very strong advocate).

I said it before and I'll say it again..........prosecutors who are true believers think its more important to exonerate the innocent (not just drop their charges, but make an affirmative statement) than convict the guilty. If a prosecutor is not damn sure the defendant is guilty, he or she should drop the charges. Period. Those that don't understand that are in the wrong job.


Anonymous said...

After years in REG, I don't buy that the ASA's who handle kiddie sex crimes cases do so to convict the innocent. 7:43 (gotta be Catalano) sounds like he's just having a tantrum because he didn't get his way.

Anonymous said...

Some prosecutors, specially those with little life experience or with high ambitions, will give the benefit of the doubt to the accuser in an L&L on a child case. They just play it politically safe.

I had a case years ago where there was nothing but the word of the child's parents, yet, the state was ready to go forward on that because of the seriousness of the allegations until I showed him conclusively that my client could not be the molester because he was not even there when the crime was alleged to have happened and the state then no-actioned the case.

Seth Sklarey said...

Will someone please explain equal protection of the law to me. If a defendant pleads out and gets a reuced sentence why should a defendant be penalized for going to trial by getting a harsher sentence? Doesn't sound equal to me.