Discretion?

"How can they just lie like that? And how can you let them?" So I was asked about ten years ago by a law librarian who'd spent the better part of her life around the courts and lawyers. She was asking about pleas. How can a factually guilty defendant, she wondered, plead not guilty.

I tried to explain that a not guilty plea wasn't, legally, an assertion of innocence. Rather, it was a refusal to admit guilt, something like a challenge to the state: Prove it.

In fact, and based on my remarkably narrow knowledge of British law, in Scotland, and at least at some time in the past (and maybe still today) in England, one entered a plea of "Not proven" which makes the point clearly and with less seeming dishonesty. [Obama and members of the Judiciary Committee can decide for themselves whether my limited knowledge of international law coupled with my willingness to say that it sometimes makes a whole lot of sense, makes me a prime candidate for the next opening on SCOTUS or disqualifies me completely.]

In this country though, and depending on how you count and exactly where you are, there are three choices:

• Not Guilty
• No Contest
• Guilty

Of course, because it's the law, it isn't that simple.

Take "Not Guilty." It comes in at least two flavors. There's straight "Not Guilty." (That's the "I'm not admitting anything, you have to prove it.") And there's "Not Guilty by Reason of Insanity." That's an admission of factual guilty but a denial of legal guilt. Or something like that; the details of just what it means, how it works in practice (i.e., who has to prove what), and what happens if the jury buys it vary dramatically from jurisdiction to jurisdiction.

Guilty, too, and it's hard to think of what might be simpler, has variety. On the one hand, what could be simpler than the basic admission, "I did it, I'm guilty." But what if you're pleading guilty as part of a plea bargain because you're trying to cut your losses, but you insist you didn't do it?

There's actually a plea for that. It's called an "Alford plea," and was authorized by (and gets its name from) North Carolina v. Alford, a 1970 decision in which the Supreme Court said that the a defendant can plead guilty while insisting that he's innocent. As long as the prosecutor says there's evidence of guilt, and the plea is entered as part of a deal for a lesser penalty to avoid the risk of a greater (death in Alford's case), the Constitution is happy.

Not all States allow Alford pleas; not all judges will accept them; and not all prosecutors will offer a deal if that would be the plea. And if there are sentencing ranges for the judge to pick, it's hard to claim, let alone demonstrate, remorse and rehabilitation while you're denying guilt. Like I say, there are problems.

There are other options, too. In Delaware, for instance, there's something they call a "Robinson plea" which is a plea of guilty while neither admitting nor denying guilt. The plea was first approved in 1972 in Robinson v. Delaware (I can't find a free version, sorry). Robinson thought it in his best interest to enter the plea, but had amnesia and simply didn't know whether he was factually guilty. So, it's "I'm pleading guilty, but don't remember."

All of this is by way of preliminary to what I want to discuss: Plea bargains. They're the ugly stepchild of the criminal justice system. In theory, it works like this.

Since nobody really knows what will happen at a trial, everyone has some risk. From the government's point of view, there's always a chance that the jury will reject even the strongest proof and find the defendant innocent. From the point of view of the defendant, it's just possible that the jury will find guilt. Some risk all around. Maybe it's better to cut everyone's losses.

So the deal is that you plead guilty to less than all the charges or to a lesser charge or in exchange for a promised sentence or a promise that the rest of your family won't be prosecuted, and there's certainty. There's a conviction, but things could have been worse - or better.

There's something distasteful about plea bargains. From the point of view of the government, they let people get away with crimes. That's why prosecutors will, from time to time, run for office on a platform of refusing to plea bargain. Once in office, they have to reneg because, frankly, there's no alternative. There aren't the resources to try every case.

Defendants don't always like them, either. I've spent many hours trying to convince clients to take a deal. I've worked with their families, with other lawyers, with repeat sit downs. We've gone over evidence and risk and . . . . But I want my day in court. I want to tell my story. God wants me to go to trial. I can't admit it. The deal sucks. You name it, I've heard it.

Still, and depending on the jurisdiction, as many as 95% of all criminal cases end in pleas.

There's a third party to the deal, too. While the mechanics vary from place to place, judge generally have to sign off on plea deals. And sometimes, well, judges like to have things their way.

Consider Judge Alfred Mackey of Ashtabula County, Ohio. He had before him the case of James Irish, charged with domestic violence, a fourth degree felony. Mackey set a plea cut off date of April 4, 2008. Either a plea bargain would be entered by that day or the case would go to trial. The state offered a deal, Irish didn't accept it by April 4. Trial would happen May 13.

However, on May 12, the state offered a better deal, a plea to a misdemeanor. The next morning, Mackey tried to take it. The judge said he couldn't. It was too late.

And we discussed this and the fact that if these plea cutoff dates are going to mean anything, we have to hold with what the recommendation was.

Got that? It's the court's rules that matter. The hell with what the parties want.

Irish appealed. The 11th District Court of Appeals affirmed. In State v. Irish, the court said that Irish knew he only had until April 4 to accept a deal.

As noted, the trial court expressed, on the record, its reasoning in refusing to accept the plea bargain. Irish was aware that the trial court imposed an April 4, 2008
deadline for accepting a plea. Certainly, plea bargains should not be discouraged;
however, there is nothing in the record to justify the inability of the state and Irish to
arrive at an agreement by the deadline imposed by the court. It is a well-established
principle that a trial court has wide discretion in control of its docket.

Judge Grendell, in dissent (and again voting for the defendant - this is becoming an alarming trend) says what's obvious. Judge Mackey put his own inflexible rule over his obligation to consider the facts and circumstances. Anyway, you can't blame Irish for not accepting, on April 4, a deal he wasn't offered until May 12. Except, of course, that the court did.

The real problem here isn't that Judge Mackey is inflexible, it's a system that's so deferential to the trial courts that good sense is rendered almost wholly irrelevant. The standard by which a court of appeals reviews a trial court's decision to reject a plea bargain is "abuse of discretion." A judge doesn't abuse her discretion by being wrong - only by being altogether arbitrary and irrational. That's a mighty hurdle.

Grendell actually got it right on that score, too, in this case though. By mindlessly following a rule he created, without considering whether the plea made sense under the circumstances, Judge Mackey was refusing to exercise discretion. And the refusal to exercise discretion is (and cases clearly support this) itself an abuse of discretion.

So Mackey was wrong yet is right because the court of appeals says so. Grendell is right yet is wrong because a majority of her panel disagreed with her.

And Irish has a felony instead of a misdemeanor.