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Plea Bargaining: Freeing the Guilty and Convicting the Innocent

Norm's post below reminded me why I loathe plea bargaining.  Plea bargaining convicts the innocent and frees the guilty.

How does it free the guilty?  As Norm noted, his client was charged with rape and kidnapping.  These are very serious offenses, and if Norm's client had indeed committed these crimes, he should have spent a lot of time in prison.  He should not have walked home with a misdemeanor non-slap on the wrist. 

How does it convict the innocent?  It the prosecutor was willing to reduce rape and kidnapping charges to misdemeanor assault, what does that say about the prosecutor's case?  It sure seems like the prosecutor was not very confident that he could meet his constitutional obligation to prove his case beyond a reasonable doubt.  Given that I'm privy to the details of the case, it's my opinion the prosecutor could not have proved his case by a preponderance of the evidence.

Although Norm's client was innocent, he prudently pleaded guilty.  Then why would an innocent person plead guilty?  That's easy.

If Norm's client had gone to trial and lost, he would have been sent to prison for several years and placed on a sex offender registry for the rest of his life.  If Norm's client had won, what would have have gained?  Nothing.

Sure, the client could have claimed he was vindicated, but that isn't worth the paper the jury's verdict is printing on.  Insiders will know that a misdemeanor plea to rape and kidnapping charges is vindication.  Outsiders will always say, even of an acquitted man, "Well, he must have gotten off on some technicality."

When it comes to plea bargaining, an innocent defendant has nothing to gain and everything to lose.  It's a disgusting part of criminal justice system that leads to more wrongful convictions than any crooked cop or incompetently-run crime laboratory.

I Shouldn't Have Said That

Plea bargaining is the pits. You wait years for trial, prepare a defense, put on your war paint, walk into court, and then you are offered a deal so sweet you cannot refuse.

Consider the case of X. He was charged with kidnapping and multiple counts of rape. A conviction would yield mandatory time, and plenty of it. But he unwaveringly declares his innocence.

It all started with two adults well past their prime "hooking up" on line. She appeared at X's home, arriving so eager for play that she was not even wearing shoes. Accounts of what happened that evening vary.

When she was stopped by a police officer for eratic driving later in the evening, she cried rape. X gave a statement that she arrived ready, willing, able, and even hot to trot. There was some give and take about the boundaries of this libidinal encoutner. X said she left abruptly after an encounter with, well, er ... a sex toy.

So we are ready for trial. Consent is the defense. The judge urges a deal and the state relents. A suspended sentence, a misdemeanor charge, no sex offender registry, no sex offender treatment, not even a plea to a sex offense. The next best thing to an acquittal.

The client balks. He is innocent. But X is also cautious and knows not to gamble with what he cannot afford to lose -- his liberty.

The court conducts a plea canvas. Has anyone forced you, the judge asks? X stumbles. He feels extorted all right. Extorted by a lie. The canvas continues and the plea is accepted.

The court finally enters orders as to seized property. Computers go back to my client. Clothing, destroyed. And what of the dildo?

"We donate it the victim for use as she sees fit," I say. Both court and prosecutor show me scorn and order it destroyed.

I know, I know, I shouldn't have said that. But my client needed something to make the plea feel like a victory.

Summary Judgment is Unconstitutional

A few months ago I was writing a brief asking the appellate court to reverse the trial court's grant of the defendant's motion for summary judgment.  During my research, I came across this line from a California case: "The summary judgment procedure, inasmuch as it denies the right of the adverse party of a trial, is drastic and should be used with caution."  Mann v. Cracchiolo (1985) 38 Cal.3d. 18, 34.  I had one of those moments where you think: "Gee, I never thought of it that way.  I wonder if summary judgment is unconstitutional."  I had less than 48 hours to finish the brief, and so I couldn't give the question further thought.

It was thus very exciting to learn (via Howard) that someone has written an article conclusively proving that summary judgment is unconstitutional.  From the abstract:

Summary judgment is a significant reason for the dramatic decline in the number of jury trials in civil cases in federal court. Judges extensively use the device to clear the federal docket of cases deemed meritless. Recent scholarship even has called for the mandatory use of summary judgment prior to settlement. While other scholars question the use of summary judgment in certain types of cases (e.g., civil rights), all scholars and judges assume away a critical question: whether summary judgment is constitutional. The conventional wisdom is that the Supreme Court settled the issue a century ago in Fidelity & Deposit Company v. United States. But a review of that case reveals that the conventional wisdom is wrong: the constitutionality of summary judgment has never been resolved by the Supreme Court. This Article is the first to examine the question and takes the seemingly heretical position that summary judgment is unconstitutional. The question is governed by the Seventh Amendment which provides that “[i]n Suits at common law, . . . the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” The Supreme Court has held that “common law” in the Seventh Amendment refers to the English common law in 1791. This Article demonstrates that no procedure similar to summary judgment existed under the English common law and also reveals that summary judgment violates the core principles of the English common law. The Article concludes that despite the perceived necessity and uniform acceptance of the device, summary judgment is unconstitutional. The Article also responds to likely objections and explores the far-ranging ramifications of this conclusion.

You can - and should - read the full article here.

The Spin Is The Thing

You're in your sixties and you fall in love with a woman young enough to be your daughter. Thence comes a divorce of your wife of many years, sealed, of course, to keep it from public view. You marry the femme fatale.

You are a trial lawyer.

What do you do with this unflattering set of facts? Declare victory, of course, and stage some friendly press. Read about how it's done in Connecticut. A Happy Couple

First Ken Lay...

And now Lewis "Scooter" Libby has had a website created where he can proclaim his innocence to the world.  I wonder if this is part of a broader trend to prevent the pro-prosecution press from controlling information the public learns about pending criminal matters.  In voir dire, will prosecutors need to start asking whether the venirepersons have read a given defendant's website?  Will that just drive the venireperson home to read the site?  Jurors are instructed not to do any outside research, but with the prelevance of Google, you have to wonder how many jurors scratch the itch.

3,000 6,000

That how many people, at last count, had arrived to Crime & Federalism after Googling "Dianna Abdala," "William Korman," or some variation of those search phrases.  Although C&F is on the first page of Google's search results for that term, there are five or six blogs listed ahead of us.  Likely thousands of more people searched for more information regarding the brouhaha, but landed on a blog listed first in the search results.

Is it a bad thing for Abdala's career that people know she's a trust-fund baby who can't spell or write well?  Dan Solove, blogging at Concurring Opinions, notes that one commentator thinks the e-mail exchange might be a good thing for Abdala's career.