Plea Bargaining Hurts Both Guilty and Innocent Kids

(Part 2) 

It is a case of mistaken identity, and unfortunately you happen to be in the wrong place at the wrong time, which circumstantially lends credence to the eyewitness account that you committed the crime.

Pause — yes, this could really happen to you.

It happens more than you think. One study showed that 99.5% of all convictions are correct, but the 0.5% wrongfully convicted totaled approximately 11,000 people. The percentage of wrongful convictions may be low, but the raw numbers are astronomical.

Ironically, while drafting this essay I watched with incredulity a news story of a young man wrongfully arrested and jailed merely because he had the same name as the offender, but the accuser gave the wrong date of birth, which matched that of the person wrongfully accused. And so, it turned into a case of the po-po doing a no-no and an innocent man going to jail. It wasn’t until he got into the courtroom that the accuser said, “This isn’t him,” but not until after he spent a month in jail that cost him his job.

Back to you.

After several months in jail (unless you can afford bail, if you’re granted a bail amount, that is), your attorney informs you that the prosecutor is “offering,” which is a kinder and gentler word for “threatening,” to reduce the charge and cut the length of prison time in half if you enter a guilty plea knowing full well that if you reject it the state’s recommendation at sentencing is the maximum penalty, or close to it.

“But I didn’t do it. They have the wrong guy,” you shout.

“I understand that,” says your lawyer, “but you look guilty. They have an eyewitness and you were near the scene.”

In disbelief you angrily say to your lawyer, “So you’re telling me that if I don’t take the plea, the jury is likely going to find me guilty?”

“That pretty much sums it up,” says your lawyer.

Been there, done that as a criminal defense lawyer.

The dynamics of plea bargaining

This scenario typically plays out on the eve of trial. Most courts schedule pretrial conferences the week before trial to establish the case is ready for trial and to motivate defendants to enter a guilty plea. In my day of practicing law, it was on Fridays. The defense attorneys sat in the courtroom waiting for the bailiff to bring us back to the judge’s chamber, and as you turn the corner and enter the chambers, there they are, the judge and prosecutor, lying in wait. 

I don’t mean to make the entire ordeal sound like a conspiracy when it’s not, but to those attorneys who are representing one of those 11,000 innocent folks who need a shot at a jury to convince them of their innocence, plea bargaining isn’t a blessing, it’s a curse.

It’s within that context of representing the innocent that walking into the judge’s chamber makes me a bit uneasy with this set-up, and sometimes it does feel like a set-up. In most other cases when representing a guilty client and the evidence is beyond a reasonable doubt and there are no legal objections like unreasonable searches and seizures and inadmissible confessions, plea bargaining can be a friend to everyone, including my client. But when you know you have one of those few and far between innocent clients, plea bargaining is no longer a friend, but your enemy. And in those cases, the judge and prosecutor look like co-conspirators.

They don’t mean to look that way, but the plea-bargaining game makes it look that way. The object of the game for the most part is to lighten the docket and move cases, and because most defendants are guilty, they all look guilty. If they all look guilty, they need to take advantage of the state’s gracious recommendation to lay off the harshest punishment and enter what we call a “negotiated plea.” 

In my state of Georgia, and in the federal system, judicial participation in the plea negotiation process is prohibited, and for good reason. The U.S. Supreme Court in Boykin v. Alabama held that a guilty plea must be knowingly and voluntarily entered. This requires the judge to make inquiries of the defendant to determine if he or she understands the nature of the charge, the rights being waived and the consequences of the plea. Prohibiting judicial involvement in plea negotiations removes the risk that the defendant may rely on a comment made by the judge that could induce the defendant to enter the guilty plea.

An example of judicial participation gone awry occurred in a death penalty case in a neighboring county of mine involving a seasoned and veteran judge whom I have tried cases before on numerous occasions. The judge told the prosecutor and defense counsel in the presence of the defendant that he most likely would not impose the death penalty if he were doing the sentencing. The defendant withdrew his not guilty plea and waived his right to a jury for the sentencing phase. Apparently, the judge changed his mind and sentenced the defendant to death. Our state supreme court unanimously reversed.

That wasn’t a tough call.

The court explained that “Due to the force and majesty of the judiciary, a trial court's participation in the plea negotiation may skew the defendant's decision-making and render the plea involuntary because a defendant may disregard proper considerations and waive rights based solely on the trial court's stated inclination as to sentence.”

No doubt prohibiting judicial participation is a good thing, but it is understood in the system that entering a guilty plea will be rewarded. The judge may not be directly involved in the negotiation process, but he or she is a tacit partner in the process, waiting in the wings for the negotiated plea to be delivered for sanctioning.

Judges play role in guilty pleas

Our Georgia rules for sentencing expressly allow judges to be lenient to those defendants who enter a guilty plea. Judges can’t participate in the negotiation, but they are allowed (and the overburdened dockets encourage them) to sanction lighter sentences, which fuels plea bargaining. You can’t negotiate pleas if you don’t have a system that invites judges to accept what was negotiated.

No matter how many rules and court opinions are issued limiting the direct participation of judges in the negotiation process, they do play a role that encourages defendants to enter a guilty plea. And I am not saying that is a bad thing. For the most part it is a good thing. I play this role out when I am taking pleas in adult court. But what is an innocent but guilty-looking defendant to do in a system that rewards those who enter a guilty plea with a lighter sentence and punishes the others who go to trial?

And I also wonder if any of those defendants entering a guilty plea in front of me were innocent.

A lawyer once said, “There is no client as scary as an innocent man.”

That is true, and to a judge there is no defendant as scary as an innocent one.

There is no way for a judge to determine for sure that the defendant standing before him or her entering a negotiated plea is guilty. While plea negotiations are taking place in the halls of the courthouse, us judges are sitting on the bench looking “fat, dumb, and happy,” passively awaiting the next plea to walk into the courtroom. All we can do is ask the statutory and constitutional questions of the defendant: if he is entering his guilty plea freely and voluntarily after first explaining his right to a trial, the state’s burden of proof, his right against self-incrimination and so on. So long as the defendant understands their rights and acknowledges that their plea is freely and voluntarily made, the judge has no choice but to accept it. We will never know those attorney-client conversations.

I think comedian Lenny Bruce aptly described our criminal justice system when he said, “In the halls of justice, the only justice is in the halls,” especially considering the fact that most criminal cases are disposed of by negotiated pleas worked out in the halls of courthouses.

It doesn’t take long once you start practicing criminal defense to discover there is no guarantee that when you come across the innocent client that the jury will believe they are innocent. After all, the burden on the state isn’t to prove that the defendant is guilty beyond all doubt, but beyond a reasonable doubt. Stated another way, and to place this in perspective, the state doesn’t have to prove that you are guilty, only that you look guilty enough for a jury not to have reasonable doubt.

There is room for error in our system of criminal justice, and that degree of error can send people to prison for life, or to their grave.

Take, for example, how many people have been wrongfully convicted on eyewitness testimony, sent to prison and later exonerated on DNA evidence. The Innocence Project has used DNA evidence to exonerate 358 defendants. These are people who fell through the margin of error crack in our criminal justice system. Imagine the thoughts and feelings these 358 people endured as they sat in jail awaiting trial and sentencing knowing they were innocent of the crime they were accused of. Many opted to plead guilty because they were threatened with a sentence they couldn’t bear if they opted to go to trial. 

Innocent mother pleaded guilty

I recently presided over a dependency case involving a mother accused by her daughter of physical abuse. The police arrived and arrested the mother for felony cruelty to children. The state’s attorney presented a certified copy of the mother’s sentence to five years’ probation, a sentence she pled guilty to. In dependency court the standard of proof is clear and convincing evidence, which is less than the highest standard used in criminal cases — beyond a reasonable doubt. The mother’s guilty plea was enough to support a finding of dependency in juvenile court.

But I want to know more because I want to know why. I can’t fix the problem unless I know why people did what brought them before me. If we don’t ask why, our responses to fixing the problem will always be limited to the symptoms and not the reasons that manifest the symptoms.

By asking why, I learned additional undisputed facts that created a legal justification for the mother to use force to restrain her daughter. It turned out the daughter was running away to an adult male to have sex. Mom had called the police twice that day to find her and bring her home. They did, but once the police left, the mother caught the daughter sneaking out for a third time and so she did what any concerned and loving parent would do, she blocked her daughter from leaving. The daughter wasn’t about to let anyone, including her mother, keep her away from the man she loved.

Poor girl, she was afflicted by that age-old adolescent syndrome called puppy love, but had no clue that the adult man had other things in mind with her, and romance, love and affection was not part of that repertoire of things. So the daughter attacked her mother, but in the mother’s attempt to restrain her they fell to the ground and a physical struggle ensued, causing scratches to the daughter.

During the struggle it was the mother who directed her son to call 911, and he did. When the police arrived, they arrested the mother because of the marks on the daughter. In Georgia, reasonable discipline is an affirmative defense to a crime alleging battery or something similar, and using reasonable force to restrain one’s child from running away into the bedroom of an adult male would constitute reasonable discipline or force.  

I asked the mother why she entered a guilty plea after having been told by her attorney that she could argue to the jury that she was justified to restrain her daughter from running away again.

“I can’t afford to take that chance and end up in prison for one year,” she replied as she was holding back tears. “I wanted to go home and that was important to me at the time.”

I dismissed the dependency case against her, concluding the evidence was not enough to meet the clear and convincing standard. If it wasn’t enough to convict her in my court, it wasn’t enough in criminal court. But what is an innocent defendant to do when threatened with prison if she doesn’t accept the plea and there is no guarantee that a jury will return a verdict of not guilty?

There is something devilish about a system that relies on rewards, threats and coercion to operate a system that in theory promotes justice, a concept in American jurisprudence that we give a lot of lip service to. Not all outcomes match what comes from our lips.

Mariah Charles: Principle over convenience

This “devilish” sentiment about plea bargaining brings me full circle to Mariah Charles, who I referenced in my previous column]  to begin this discussion on the inherent evils of plea bargaining, especially in the juvenile court. Mariah was walking to school with her friend when they were stopped by two police officers with the New York Police Department. They asked the two girls where they were going and Mariah pointed to her school a half-block away and said, “To school.”

Apparently, the fact that they were walking in the direction of a school that was visible a half-block away, and that they were carrying book bags, was not enough to convince the officers that the girls were walking to school.

So the officers asked for identification, which Mariah didn’t have (and state law doesn’t require she possess an ID). Mariah explained she didn’t have identification but told them they could accompany them to the school, whereupon she proceeded to walk toward the school.

Mariah was willing to offer them the best evidence to show her intent to walk to school and that she and her friend were not truants, which the officers would later claim was their purpose in stopping them. But having a legitimate purpose to stop a person on the street becomes irrelevant when the direct evidence, obvious to the officers, reveals no crime has occurred or is about to occur (i.e. walking with book bags in direction of school that is in plain sight).

And in what way was Mariah’s offer for them to follow her half a block to the school unreasonable?

It wasn’t, and it’s decisions like this made by just enough officers that has created the problem facing police today — lack of legitimacy.

To make it worse, one of the officers grabbed Mariah by the arm and forcibly stopped her in her tracks. Mariah again told them she was walking to school and that they could follow her. She continued to walk toward the school.

How dare a teenage girl tell the police what is best, so they both grabbed her, physically restrained her, took her to the ground and threw her in the back of the patrol car.

The irony of Mariah’s situation is that she can resist arrest when the arrest is not authorized. States vary on when a person can resist arrest, but New York Penal Code § 205.30 states that “A person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person.” 

In other words, for a person to be guilty of resisting arrest, the police must have reasonable suspicion that the person committed a crime. The appellate courts in New York have set forth a “... well established principle that whether the police have reasonable suspicion depends on the entire circumstances of each case.” These same courts in New York have held that the fact a person is seen leaving or even fleeing from a scene is by itself not enough to create reasonable suspicion.

There must be more.

Mariah was arrested for resisting arrest, but not for any underlying crime that would create the reasonable suspicion required to arrest Mariah. No crime, no reasonable suspicion.

It begs the question of why Mariah was arrested for merely walking away from the officers. Unlike the facts in the appellate cases cited above in which people ran from the police and the arrests were still found unlawful, Mariah was polite and asked the officers to follow her to the school.

In other words, the prosecutor didn’t have a case in the first place that allowed them to offer any recommendation of any kind to Mariah, but they did so anyway. They offered the lightest punishment under the law: An Adjournment in Contemplation of Dismissal, or commonly referred to as an ACD in New York. It’s a deferred prosecution program, also called a diversion. In New York it means that if you keep your nose clean for six months after pleading guilty, the charge is dismissed.

This didn’t smell right to Mariah. I can imagine Mariah thinking to herself upon hearing the prosecutor’s offer, “Sure, it may sound great, and it may look a lot better than probation or jail, but I am not guilty.”

 I think of my own daughter in Mariah’s shoes. As a father my response would be a bit unpolished —  “Hey, don’t piss on my shoes and tell me it’s raining.” I would likely throw into the mix of my inflammatory commentary, “My daughter already has a case against the officers for violating her civil rights pursuant to 42 US Code §1983. Keep pushing it and she’ll have another one against you [prosecutor] for malicious prosecution.”

But that is part of the problem with plea bargaining. The accused usually don’t have legal training and they don’t have fathers like me who were trial attorneys who specialized in civil rights cases (I did work for our Attorney General’s Office representing state employees in Section 1983 lawsuits). They are scared, and if they are innocent, they are frightened, and when they are frightened, they freeze and give in to the threats of the prosecutor. 

Mariah may be youthful and without legal skills, but what she does have is an incorruptible and principled character. That style of character is a source that delivers courage, which she displayed by rejecting the “sweet” deal and risking a stiffer penalty and a criminal record.

Fortunately for Mariah, the prosecutor blinked and dismissed the charge. But not all prosecutors are wise enough to always recognize when their zealousness becomes too zealous and blinds them. When this occurs, they can’t separate the forest from the trees, or in the case of prosecutors, they can’t separate the justice from the injustice.

Where do we go from here?

What does it say about how we do justice in the hallways of our courthouses knowing that about 11,000 people are wrongfully accused each year? It begs the question of whether there is a better way of doing plea negotiations.

But knowing that innocent folks are pleading guilty to crimes they didn’t do — because they are afraid of what will happen to them if they exercise their Sixth Amendment right to a jury trial — what does that say to those of us in juvenile justice where systems still employ a traditional plea-bargaining process? It’s one thing to do this to adults, but to allow it to happen to kids should be intolerable.

And I don’t want to hear the excuse that the impact is not harmful because the juvenile justice system is rehabilitative and we don’t punish. That’s hogwash!

Try explaining that to a kid who is told by his attorney that the state will not recommend commitment to state custody if he enters an admission to the burglary, but will instead recommend probation and he can stay at home. If he one of those 11,000 innocent souls, what he hears instead is this: “If I say I am guilty to something I didn’t do, you won't rip me away from my family, friends, and school and send me to some far-off place with strangers.”

There is nothing rehabilitative about this scenario regardless how much we repeat to ourselves that the system is rehabilitative. No innocent person, young or old, should be removed from their home for a crime they didn’t do. We can’t rehabilitate someone who doesn’t need rehabilitation because they’re innocent in the first place.

But it’s more than ripping away an innocent kid from the arms of his family. It’s also about the kids who are guilty and restoring them to a healthy existence. Plea bargaining deprives those who are guilty from receiving the best rehabilitative services. It is impossible to negotiate what works for any given youthful offender, which is explained in the next column.