The Bestest System Around

I started to write this as a comment at Hercules and the Umpire, the blog of Judge Richard Kopf.  But it was getting long and circuitous, discursive and digressive and I figured the hell with it.  I'd just make it a post here.

It's a response to the Judge's response to pieces by Judges Rakoff and Kane on plea bargaining and the innocent and how federal judges should take a more active role in plea bargaining to assure that innocent people don't just plead guilty.  Here's the heart of what Judge Kopf has to say.

1. Rakoff and Kane both claim that studies show that somewhere between 2 and 8 percent of people convicted of crimes are factually innocent.  Although they don't cite their sources, so it's impossible to know where those figures come from or what they're based on, they don't apply to federal courts because in federal courts innocent people never get convicted.
2. In our very effective adversary system judges should be eforcing the rules but staying out of the adversarial process, which includes plea bargaining.

Maybe. 

Let's start by acknowledging that Kopf actually has no idea what percentage of factually innocent people end up getting convicted in federal court.  Not in federal court generally.  Not in his court.  He may know how few convictions are overturned based on factual innocence, but that doesn't answer the question since factual innocence is rarely a meaningful avenue of post-trial litigation regardless of whether it's real.  He may know that people who plead guilty acknowledge that they are guilty, but that doesn't mean they actually are.  He may know that when people plead guilty, the government has significant evidence against them, but that doesn't mean it's all true.  He may know that when juries return guilty verdicts, it's because they were convinced beyond a reasonable doubt by the evidence. But we know that the evidence is only as good as what's presented and what the jury ends up believing.  Prosecutors, even federal ones, hide evidence sometimes.  They rely on unreliable evidence claiming it's iron clad.  Defense counsel are sometimes inept, sometimes without adequate resources, sometimes just wrongheaded.  And juries can just get it wrong.

Judge Kopf doesn't know.  Neither do I.  Neither do you.

People plead guilty because the risk of trial is too great.  They plead guilty because they have a lawyer who hasn't the balls to go to trial.  They plead guilty because they've been told that if they don't, the government's going to go after someone they care about enough to protect.  They plead guilty because their scared or they're misinformed about what might happen at trial or they just want to get it over with.

And yes, sometimes they plead guilty because they are in fact guilty and want to take responsibility for what they did.

And all that is true in federal court where the FBI and the DEA and the NSA and the SEC fed the evidence to the AUSA and they're all noble and brave and true and . . . .

Excuse me.  

There is, often, a greater degree of professionalism and competence in federal court than in state court.  But bullshit is bullshit and there ain't no guarantees.  Just ask Ted Stevens. 

And, as I've suggested before here, there's guilt and there's guilt (just as there's innocence and there's innocence).  And if Harvey Silverglate is right and everyone commits three federal felonies a day, then there's a sense in which (a) there are no innocents, except maybe of the particular offense at issue, and (b) many of the folks who are factually guilty are by any fair measure innocent of any wrongdoing.  Which would completely fuck up the numbers if we actually knew what the numbers were.

That much said, I'm going to venture a guess.  There's a significant percentage of factually innocent people who are convicted of crimes.  Sometimes by juries.  Sometimes at bench trials.  Sometimes by plea.  Whatever that percentage, it's too high.  It's higher in some courts than others.  It's higher for some offenses than others.  

My gut, my experience, and the data I've seen all suggest to me that the innocent-convicted fall at the ends of the spectrum.

Relatively minor offenses draw guilty pleas because they end things quickly and there's just not enough at stake (and not enough financial incentive for lawyers) to try the cases.  Defendants in custody want to get out rather than sit in the local hoosegow waiting for a trial.  Defendants out on bond want to get it over with rather than waste more and more time showing up in court for pre-trial hearings where all that happens is that they're told to come back another time.  Enough! they say.  Let me plead and get it over with.  Truth be damned.

At the other end, the risks of trial are so great (execution, LWOP, 500 years) that a plea to almost anything less is worth it.  Truth be damned.  And if the case goes to trial?  These are the cases where the cops make up evidence, where the confessions are false, where the evidence is hidden.  Because the press.  And the voters.  And by god something must be done and someone must pay.  As they said to Clarence Brandley down in Texas, "Since you're the nigger, you're elected."   

Which, of course, doesn't mean that the wrong guy is convicted (though Brandley was, and spent 9 years on death row).  Or executed (but Todd Willingham and Carlos deLuna and coming soon to a neighborhood near you).

And we know the errors in rape cases.  But of course there are rapes.

And judges are no better at knowing what evidence the prosecutor is hiding or the cops have planted than anyone else is.  If anything, they're typically more credulous than juries.

But what to do?

I'll offer some thoughts later this week.