Monday, December 29, 2014

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.


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.


  1. I think it's worth considering the problem from a slightly different angle:
    Assuming that a person is not factually guilty of the particular offense for which they are charged, but also assuming that they have committed several relatively similar crimes in the past for which they were never charged, what is the scope of the problem of a conviction in such a situation?

    I'm not putting forward an opinion at this point, just a question.

    1. If you believe in the Rule of Law rather than the Rule of You'll Get Yours Someday, the fact that someone is factually guilty of some other crime for which he was never convicted is wholly irrelevant to the utter wrongfulness of his conviction for a crime he did not commit.

  2. Also, in your defense practice, how many of your clients who've been convicted do you believe were actually guilty of either that exact crime, or totally innocent?

    In about 350 cases as a defense attorney, after talking with my clients and reviewing evidence, I had two clients whom I believed were totally innocent (both acquitted), and two whom I believed were "innocent enough" in view of vague statutes (both also acquitted). I didn't have any clients whom I believed weren't at least probably guilty to that or a very similar crime who wound up pleading. Other attorneys I talk to have had similar rates and outcomes.

    There's no denying that there are horrendous abuses out there, and any are too many, but I wonder how big the scope of this is.

    1. If you're going to use your personal experience and expect it to mean anything, you would have to use your real name and provide some background to assess the value of your experience. You can't conceal who you are and then expect anyone to find your personal experience meaningful.

  3. Sorry, but as an assistant state-level prosecutor, I'm not an elected official in my own right. As such, I prefer to use a pseudonym when commenting online so that no one mistakes my words for the policy of my boss. You can give me as much or as little credibility as you like as a result.

    You're also free to consider what I've stated about my experience to be mere surplusage to the question I asked our host about his experience. His (and yours) may be very different from mine and those I know, and I'd be interested to know if that's the case. If it's not, and even very experienced defense attorneys (especially public defenders) find that 1) they believe that less than 2% of their clients are factually innocent, and 2) that the courts have acquitted those factually innocent clients, then that's worth knowing.

    1. We're always free to disregard a comment on a blog. That's not the point. If you feel strongly enough that it's worth posting an assertion based on personal knowledge and experience, then have the fortitude to provide the basis upon which someone who reads it can assess it's value.

      As for me (and, as we all know, my background is transparent), based on my more than 30 years practicing criminal defense and the thousands of criminal defense lawyers I know, from PDs to private to white collar, I would offer these observations:

      On low-level offenses, about a third are factually innocent or overcharged.
      On state felonies, about 25% are factually innocent or overcharged.
      On federal felonies, about 10% are factually innocent, and 50% are overcharged.

      My experience is that the vast majority of defendants, whether guilty, innocent or overcharged, believe that they stand no chance of prevailing at trial, and plead to cut their losses, and that the problem of innocent or overcharged defendants pleading guilty is at epidemic proportions.

      But that's only my view based on my experience and what I know from speaking with thousands of other criminal defense lawyers.

  4. Hell, I'm an employee. Disclaimers all over the place. I speak only for me. But ain't no secret who I am.

  5. Thanks for all your thoughtful posts in 2014, Jeff. Don't often comment, but I read them regularly.

    Scott Taylor