I've noticed something disturbing in federal plea agreements in the past year: No matter what the crime to which a client pleads, a part and parcel of any guilty plea requires the defendant to waive the right to have any physical evidence in the government's possession subjected to DNA testing as part of an effort to prove his innocence.
Title 18 Section 3600 of the United States Code permits a person convicted of a crime to petition the court for DNA testing of physical evidence if the convicted person asserts that he is actually innocent and the items to be tested were gathered in connection with an investigation of the crime of conviction. This statute was enacted in 2004 as part of the Innocence Protection Act of 2004.
The act permits a defendant to waive this right to DNA testing. Thus the now boilerplate language in plea offers requiring the waiver.
In the cases to which clients of mine have entered pleas, DNA testing has not been, and could not conceivably be, an issue. So although I have fussed some during plea canvasses about whether the Justice Department should be in the business of protecting guilty pleas at all costs, I have yet to make an issue of this. That could well change depending on the nature of the offense.
I enjoy being a criminal defense lawyer in part because I am relieved of the responsibility to do justice. Bounded only by a duty of candor toward the tribunal and a duty of zealous advocacy, court is joyful combat. But I thought prosecutors had an additional duty, the duty to do justice? Where is the justice in requiring a defendant to waive the means of proving his innocence?
Federal pleas are frustrating. There are no Alford pleas typically, and defendants are expected to waive the right to bring a habeas claim. Now add the waiver of the right to DNA testing. A very real danger exists that a defendant represented by ineffective counsel might be held to the terms of a plea agreement and be deprived the right to prove his or her innocence.
Where's the justice in that?
"Where is the justice in requiring a defendant to waive the means of proving his innocence?"
For Christ's sake, get a grip. Where's the justice in "requiring" a defendant to plead guilty to a crime he maintains he didn't commit? I'm aware of the tactical reasons an innocent man may wish to do so, but it's hardly unreasonable for the state to insist that its time not be wasted on bullshit backup pleas. If you're innocent and you can prove it, DO SO. Don't plea and then insist the state run tests to prove you lied about having committed the crime.
Posted by: Dylan | May 19, 2006 at 07:39 AM
If you're innocent and you can prove it, DO SO.
If you're guilty and the State can prove it, why not require them to do so?
Posted by: mythago | May 19, 2006 at 02:52 PM
Bad phrasing on my point. That is, of course, what I really mean: if you're innocent and you know the state can't prove otherwise, then don't take a plea and make them try and fail to convict you.
Posted by: Dylan | May 20, 2006 at 08:56 AM
If you're innocent, how much faith are you going to have that the government is going to be fair in trying to convict you? They've already wrongly decided you're guilty. Who's to say they won't persuade a jury to agree? Or cheat, if they have to?
Posted by: mythago | May 20, 2006 at 09:59 AM
Dylan, it's the classic problem of plea bargaining. Here's a recent example. Mr. Jones was charged with one count of criminal sexual assault. If convicted, he would have faced several years in prison and lifetime registration as a sex offender. He was offered a a misdemeanor plea deal that would have kept him from serving any jail time, and would not have been required to register as a sex offender.
Innocent or not, would you have turned down that deal?
Posted by: Mike | May 20, 2006 at 10:40 AM
Especially when the alternative is "...and if you turn down this deal, we'll come down on you like a ton of bricks." A person who is very, very confident that the trial will go in their favor and the overall result would be worse than the plea bargain might turn down the deal. Otherwise...
Posted by: mythago | May 20, 2006 at 06:04 PM
"Dylan, it's the classic problem of plea bargaining."
Exactly. It's classic and inherent to plea bargaining. Norm's is shocked, shocked to find plea bargaining going on here as the ADA brings him another client's plea to sign.
No, I wouldn't have turned down that deal. But if you're the state would you offer that deal if there's DNA evidence that might get tested anyway and undermine that plea? Hell, what if the test supports guilt? Now his boss is going to wonder why he let your client off with suck a wrist slap.
Can you imagine any lawyer to a civil settlement leaving open the possibility of throwing that settlement out later? This isn't really different. If you're going to settle it, then it should be a final disposition. "I agree to pay you $10k unless I find a new box of documents that can support my $1M counterclaim" is the kind of deal that gets no takers.
Posted by: Dylan | May 22, 2006 at 09:15 AM
Wow, I need coffee. And an editor.
Posted by: Dylan | May 22, 2006 at 09:16 AM
Well, aside from the extremely tough criminal penalties in federal court that almost guarantee a plea agreement (pretty much every drug case I do has a nasty "conspiracy" charge tacked on that could easily net an additional 20 years, depending on how many convicts testify to getting drugs from the defendnat), theres the issue of evidence that hasn't been discovered yet. i.e. Nobody knows of the evidence at this point in time. By waiving the right to DNA testing, theres no way to test for evidence that is discovered after the plea.
Nobody but God is omniscient. Not the UADA, not the defense attorney, and not the judge. Why the rush then to foreclose an avenue of truth-finding? If the defendant is in fact innocent, but pleads guilty because of the likelihood of conviction coupled with a staggering sentence, who has any interest in preventing proof of innocence from being discovered? All that does is prevent the real guilty party from being convicted, and allows said criminal to remain free to commit more crimes.
On a related note, all these waivers in the plea agreements sometimes lead to no plea. The FedPD in this district is well known for having clients plead guilty without a plea, then fighting things out at sentencing, just in order to preserve appeal rights.
Posted by: Anthony LeRose | May 22, 2006 at 10:53 AM
I am interested i nknowing the following question. If your client committed a crime and tells you he did it, what do you do. If your client tells you about a serious crime that will be committed next week. If your client tells you if you lose the case he will harm you ar your family. The client cannot pay you nothing for representing them. Your client wans to testify even though you do not think they should do that.
If you cannot help me with these question is their a web site that can. Thanks
Posted by: Lovette Blackshire | June 06, 2006 at 10:10 AM
any reference to the questions above
Posted by: trish | March 01, 2007 at 08:08 AM
What can you do if attorney did not tell you what your accuser statements said nor told you that the evidence proved your innocence and then advised the client to take a plea bargain? I can't believe the Judge let the client enter into a plea agreement, knowing the evidence proved innocence.
Posted by: Gloria E. | December 14, 2008 at 12:16 PM