One of the big questions that emerged last week is why do innocent people plead guilty? We noted the discussion of the Alford Plea, so named because Henry Alford was accused of murder and faced the death penalty, where enough evidence existed that could possibly have been enough to cause a jury to convict him.
As Yolo County Public Defender Tracie Olson noted, “The evidence was strong but Henry said he was innocent. Henry, however, pled guilty to a charge of 2nd degree murder in order to avoid the death penalty.”
“Of course, I don’t know as I stand here today whether or not Henry was actually innocent,” she said. “However, I’ve been a criminal defense attorney in Yolo County since 1998, and I truly believe that innocent people have taken pleas because they felt they were in a situation like Henry’s.”
Retired Judge Lee Sarokin weighed in on the issue yesterday on the Huffington Post.
“Prison is Hell for the guilty; it is difficult to envision what it must be like for the innocent. Brian Banks is yet another story of a person not only wrongfully imprisoned, but imprisoned based upon his own ‘voluntary’ act,” he writes.
Last week, of course, Mr. Banks was exonerated after serving five years for a rape he did not commit.
How and why do innocent people confess or plead guilty to crimes that they did not commit?
Judge Sarokin writes, “Roughly 20 percent of those that have been exonerated confessed to the crimes with which they were charged and convicted. Most of those involved persons who had actually gone to trial, but we have no way of knowing how many there are who merely entered guilty pleas through bargains and never appealed as a result.”
“Although we hear and read about criminal trials, the reality is that only about 5 percent actually go to trial and the balance are resolved by plea agreements,” he notes.
The judge continues, “When pleading guilty a defendant is required to ‘allocate’ before the judge — admit the crime and furnish sufficient details to satisfy the court that he is indeed guilty.”
In practice, we see in county court the attorneys of defendants stipulate to a factual basis for the crime based either on the accusations put forward by the District Attorney or the preliminary hearing. But what is actually being elucidated is actually only probable cause, not facts.
Judge Sarokin adds, “That is not always the requirement in ‘no contest’ pleas, and I do not know what transpired in the Banks case. If he had pled guilty he would have been required to admit the rape and testify to the details.”
I have not observed such a distinction, but it is probably irrelevant. Generally speaking, they are acknowledging either their guilt or sufficient evidence to potentially prove guilt in a trial.
Judge Sarokin continues: “What apparently happened here (based upon his version) is all too typical of what happens in the criminal justice system. I call it the ‘Ins of Court’ — intimidation by the prosecution and incompetence by the defense. The defendant, frightened, most often poor, uneducated, a minority member, is advised that a trial is likely to end with a conviction and a long sentence, whereas a plea will guarantee a much shorter sentence.”
He adds, “Despite his protestations of innocence, the defendant seeks guidance frequently from an over-worked, underpaid defense lawyer who would much prefer a quick deal rather than a long drawn out trial. Of course, not all defense counsel fit that description. Many do not, but even the best and most devoted are required to put this draconian choice to their clients — a guaranteed short sentence versus a potentially long one — possibly life in prison.”
In fact, the attorney in the Banks case does not fit this description at all. And I have seen reputable attorneys advise their clients to take a plea agreement when the exposure is great. In this case, he served five years in prison, he faced 41 to life if convicted. We do not want to acknowledge this fact, but the heavy penalty that he faced likely weighed heavily on the decision to avoid that kind of exposure.
The judge continues: “The problem is further complicated by the fact that it is more difficult to set aside a guilty plea than a conviction after trial. Once a person has admitted guilt and spelled out the details of the crime sufficient for the court to accept the plea, the chances of reversing such convictions are very slight if not nil. Most do not try.”
He adds, “Mr. Banks had the fortitude to continue his fight even after he had been paroled and was fortunate in eliciting a recantation from the complaining witness. Such instances are very rare. Thanks to the tenacity of the California Innocence Project, it happened here.”
Judge Sarokin acknowledges the unpleasant truth: “The reality is that without plea bargains the entire criminal justice system would come to a halt. Charges would be tried ten years after they were made. The only solution is vigilance by all those involved. The prosecutor, defense counsel and the court must be satisfied of the defendant’s guilt before urging or accepting a plea.”
He concludes, “I recognize that there is no avenue to absolute certainty because the knowledge of guilt or innocence lies with the defendant, but all involved must strive not to imprison the innocent — even those who profess to be guilty.”
Unfortunately, the judge’s analysis is problematic. He fails to acknowledge the possibility that the evidence was sufficient to convict Mr. Banks. He fails to acknowledge that, in fact, he may have avoided a long prison sentence.
The fact that he was out in five years rather than still in bars is something that the judge does not even consider.
We don’t like it, but sometimes in this system, pleading guilty to a crime you did not commit might be your best chance at a normal life.
That is something we need to consider more fully.
—David M. Greenwald reporting
“The reality is that without plea bargains the entire criminal justice system would come to a halt.”
” but sometimes in this system pleading to a crime you did not commit, might be your best chance at a normal life.”
To me, these two statements represent a huge indictment of our adversarial system of justice. Ir appears to me that instead of the system working as a means to discover the truth and establish a.just outcome, what we have constructed is a high stakes ( for the accused) game of poker.
“We don’t like it, but sometimes in this system, pleading guilty to a crime you did not commit might be your best chance at a normal life.”
If this is true, which I believe it is after witnessing what happened to Ajay Dev.
Then it is a crime to call our courts a justice system!
[quote]He adds, “Despite his protestations of innocence, the defendant seeks guidance frequently from an over-worked, underpaid defense lawyer who would much prefer a quick deal rather than a long drawn out trial. [/quote]
A built in conflict of interest of a public defender IMO. I would strongly advocate that there be some way (not sure how) of bifurcating the system and separating the public defender from plea bargains…
[quote]We don’t like it, but sometimes in this system, pleading guilty to a crime you did not commit might be your best chance at a normal life.[/quote]
You should not have to plead guilty to a crime you did not commit as the best chance at a normal life. Those who are innocent of any crime are the very “people” the DA is charged to protect.
Another point is being lost here. There should be more of a concerted effort to teach our young men that there are very real dangers in partaking of sex freely and without reservation…
“I would strongly advocate that there be some way (not sure how) of bifurcating the system and separating the public defender from plea bargains…”
I don’t see a conflict of interest and I don’t see that as a viable solution. The bigger problem is the lack of funding for indigent defense, but to me the even bigger problem is that we have now made penalties so ridiculously high that it is actually irresponsible to turn down a five year sentence when the defendant is facing 41 to life.
[quote]I don’t see a conflict of interest and I don’t see that as a viable solution. The bigger problem is the lack of funding for indigent defense, but to me the even bigger problem is that we have now made penalties so ridiculously high that it is actually irresponsible to turn down a five year sentence when the defendant is facing 41 to life.[/quote]
I’m surprised you don’t see the blatant conflict of interest. I’ll spell it out for you. The Public Defender has a conflict of interest in urging an innocent client to plea bargain because for the defendant to take the plea will result in 1) saving $$$ for the Public Defender’s Office; 2) a lighter case load for the Public Defender’s Office.
See: [url]http://www.myduiattorney.org/dui-tips/public-defender-vs-private-attorney.html[/url]
[quote]Because PDs get a fixed salary regardless of success rates, it may be in a public defender’s interest to encourage a lopsided plea-deal which doesn’t necessarily have their defendant’s best interest at heart in order to resolve a case expeditiously, rather than go to trial, which means a lot more time and preparation for the PD but no extra pay[/quote]
Also see, particularly around p 2482: [url]http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/bargain.pdf[/url]
“The Public Defender has a conflict of interest in urging an innocent client to plea bargain because for the defendant to take the plea will result in 1) saving $$$ for the Public Defender’s Office; 2) a lighter case load for the Public Defender’s Office.”
They also get fixed salaries regardless of case load and the only costs would be for investigations.
I agree however there are potential problems:
1. An attorney should never pressure a client to do anything
2. Counties that lack resources have a larger problem
I don’t agree that it’s necessarily a conflict of interests, I also see no way to resolve it other than the ethical requirements and budget fixes.
The person in the best position to assess the case and make a determination is the defense attorney. Having two attorneys complicates this. Moreover, most plea agreements happen as things play out over time – you may get an initial offer, but not always. You have the preliminary hearing.
Perhaps what you might suggest is a second attorney reviews the case and signs off.
I agree Medwoman… sadly…
Fight Against Injustice: I was at a recent meeting in Fresno to evaluate the County’s use of restorative justice practices (victim/offender conferencing) for non-violent/non-sex offense juvenile cases. The police chief of Fresno (a HUGE supporter of the restorative justice approach) said this:
“We do not have a justice system. We have a legal system. They are not the same.”
No Justice in our system, in fact the truth is a distance second in most trials. There are lots of cases where the Judge knows the truth but is not allowed to say it, things like suppression of evidence, suppression of statements due to hearsay or questionably obtained, or spousal privileged or attorney privileged or doctor privileged or religious, lots of reason why the truth is withheld. In a true justice system the truth would be priority above all else.
The other major problem is the Prosecution’s ability to cut deals with other crooks or felons to make their cases better. This is absurd, can you imagine if the defense could promise shorter terms in prison in order to get a witness to help their client? How can anyone think our system has anything to do with truth or justice.
Then you top it off with a huge advantage when it comes to power, resources, money, and authority that is given to the State or DA and then add the little fact of politics and the DA’s ambition to win and get re-elected and then add the human factor of ethical or morale values and you have a sure fire recipe for NO justice. IMHO.
[quote]Perhaps what you might suggest is a second attorney reviews the case and signs off. [/quote]
I’m not sure what I am suggesting, other than there is most definitely a conflict of interest for the public defender in urging clients to take plea deals. It just seems as if an independent third party who has no skin in the game should be giving the defendent some advice whether to take a plea deal or not. Secondly, improvement of evidence gathering might help cut down on the number of innocent people getting caught up in our criminal justice system. Just food for thought…
Perhaps it is me being overly cynical, but it seems to me that both the prosecution and the defense might have a vested interest in getting the accused to accept a plea bargain. The defense might benefit for reasons already stated. The prosecution also would seem to benefit.
If the accused accepts a plea bargain, the prosecution has ” won” in the sense of having “solved the case” and appearing “tough on crime”
without having to build a strong and convincing case and taking the chance that a jury may not buy their ” version” of events.
I would be all for Elaine’s idea of an independent third party reviewing and advising. I would go further and recommend doing without plea bargaining altogether. Afterall, if the goal is justice, and if all sides would ultimately agree to a lesser penalty, then why make the threat of a stiffer penalty to begin with. It seems clear to me that this device is used in the interest of intimidation, not justice.
[quote]The prosecution also would seem to benefit. [/quote]
Of course the prosecution would benefit – but the prosecution does not have a built in conflict of interest bc it is on the opposite side…
[quote]I would be all for Elaine’s idea of an independent third party reviewing and advising. I would go further and recommend doing without plea bargaining altogether.[/quote]
As a practical matter, plea bargaining cannot be done away with, or the justice system as we know it would come to a screeching halt. I think I have my statistics correct when I say that 95% of all cases end up in a plea bargain…
So about all we can seem to do is nibble around the edges of the problem with some fixes, such as better evidence gathering, third party advice to the defendant on whether to take a plea deal, etc….
And I would argue we need some form of punishment for DA’s that do not act ethically…
It’s most definitely a conundrum…
Elaine
“As a practical matter, plea bargaining cannot be done away with, or the justice system as we know it would come to a screeching halt. I think I have my statistics correct when I say that 95% of all cases end up in a plea bargain… “
At the risk of sounding like Jeff Bone with regard to the education system, I have to say that I consider our legal system as so injustice as to warrant a complete revamping. The very fact that you make the statement that there is no conflict of interest for the prosecution because “they are on the opposite side” illustrates just how much our legal system has become a contest with ” the win” as the goal rather than justice which most of us have been brought up to believe is the goal. I do not want “punishment” for DAs that do not act ethically. I want a system in which the incentive is for everyone involved to act ethically. I do not be,I’ve that this will ever be the case in an adversarial system where careers are made or broken on the ” number of wins”.
To medwoman: The rationale behind the adversarial system is to test the strength of the evidence. The problem is:
1) The system is only as good as the people in it;
2) No system is perfect;
3) Inadvertent mistakes are made all the time;
4) There are built in conflicts of interest everywhere in our legal system;
5) The lack of funding also gets in the way of truth finding;
6) There is virtually no punishment for those DA’s who act unethically;
7) Etc., etc., etc.
However, what system can you suggest that currently exists, that is “better” than our adversarial system? I’m not convinced throwing the baby out w the bath water is the answer. I would much rather work w what we have, and make it better. One huge step that needs to be taken is to guarantee better evidence gathering at the initial stages. But even that is never a guarantee against mistakes. Think about it – you yourself have admitted no doctor is free from having made mistakes over his/her career during their lifetimes. Perfection is never possible…