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April 27, 2012

"Prosecutors and Bargaining in Weak Cases: A Comparative View"

The title of this post is the title of this interesting new piece available via SSRN authored by Professor Jenia Iontcheva Turner.   Here is the abstract:

One of the most controversial uses of prosecutorial discretion in plea bargaining concerns cases involving weak evidence of guilt.  When a prosecutor bargains about the charges or even the facts in a case with weak evidence, at least three problems may arise.  First, if the charge bargain is generous, it may coerce an innocent defendant to plead guilty. Second, such a bargain may let a guilty defendant off too easily, thus disserving the public and victim’s interests. Third, if the parties bargain about the facts, the result may distort the truth of the case.

In this book chapter, I examine how three major legal systems -- those of the United States, Germany, and Japan -- approach these potential problems.  To do so, I discuss how prosecutors in these systems would resolve a hypothetical criminal case involving weak evidence.  I have chosen to compare the United States, Germany, and Japan because of their distinct approaches to both plea bargaining and prosecutorial discretion.  In the United States, prosecutors have largely unfettered discretion in both charging and plea bargaining.  Germany allows a form of sentence bargaining that involves both the prosecutor and the judge, but sharply limits prosecutorial discretion with respect to charging and prohibits charge and fact bargaining.  Japan does not allow any explicit bargaining, but gives prosecutors broad discretion to refrain from filing charges.

After describing the relevant differences in the prosecutors’ role in these countries, I raise several questions about the proper approach for prosecutors in evidentially weak cases. While none of the systems I discuss has a perfect solution to the problem of factually weak cases, the comparison may encourage us to rethink three key features of American-style plea bargaining: our practice of aggressive charge bargaining, particularly in cases where the evidence is weak; the lack of limits on plea discounts; and the limited external and internal review of prosecutorial charge bargaining decisions.

April 27, 2012 at 11:46 AM | Permalink

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Comments

Do judges in some states more than others take an active part in overseeing plea bargaining?

Anyway, these cross-jurisdictional comparisons are interesting. It is useful to remember our way is not the only way.

Posted by: Joe | Apr 27, 2012 2:21:31 PM

Here's what you do if in fact you're innocent and (far from coincidentally) the prosecutor has a weak case:

"Hey Mr. Prosecutor, you go right ahead and go to trial with that crock o' nothing you're calling a case. Waiting for me to plead? Well, my friend, you'll be waiting a long time. In the unlikely event you get past my motion for a directed verdict and we have to go all the way to an acquittal, don't worry. I'll write your boss every year in time for your annual evaluation to remind him of how you embarrassed his office by proceeding with this loser. See you in court, buddy!"

What so many ideologues on this site seem not to realize is that a prosecutor, unlike a privately retained lawyer, is on a salary, and doesn't make money by the case. What people also seem not to realize is the huge number of easily prosecutable cases get left on the editing room floor because there are just not sufficient resources to do them all. With all the low-hanging fruit out there, what actually happens with weak cases is that they get deep-sixed.

Posted by: Bill Otis | Apr 27, 2012 4:04:05 PM

You and I both know that this is never the case. In the U.S. the State or prosecutor do not care if you are innocent. They are looking for a conviction regardless. I cannot speak for Germany or Japan, but this is fact about the U.S.

Posted by: Mark Hough | Apr 27, 2012 7:25:02 PM

Mark Hough --

"In the U.S. the State or prosecutor do not care if you are innocent. They are looking for a conviction regardless. I cannot speak for Germany or Japan, but this is fact about the U.S."

A complete and utter falsehood. Of course if you have proof, the entire board would like to see it.

Where is it?

Posted by: Bill Otis | Apr 27, 2012 9:53:04 PM

There is an exoneration for every 5 executions. That is a rough estimate of the false positive rate in the cases with the ultimate care and expense is taken. Among the exonerations, a quarter included a false confession. These error rates are unbearable.

Because of the absolute immunities of these careless lawyers and judges, all out violence against them has full justification in ethics, policy, and justice. If they falsely executed an innocent defendant, they should be kidnapped, tortured and killed themselves, until tort immunity ends. Then they should be sued for a wrongful death, with strict liability criteria applying, because of the inherent dangerousness of their profession.

Posted by: Supremacy Claus | Apr 28, 2012 12:12:13 AM

Good morning , Mr. Otis,

I believe Mr. Hough's hyperbole overreaches by implying that all prosecutors care not about innocence and are looking for a conviction .

To me , your position that Hough's statement is a "complete and utter falsehood" also exaggerates .

Surely you must have been exposed to publicity of a prosecutor who knowingly used perjured testimony to obtain a conviction and after a slow forward of several years , the prisoner is released for the simple reason that he was innocent.

Summary execution of such a prosecutor , though effective , is not permissible under our system of law .
(It was not permissible re R. Heydrich , but it worked ☺)

DJB , JAG (Just Another Guy)

Hate/L♥ve email→[email protected]

Snail Mail→PO Box 91018 C-bus OH 43209-7018
(no bombs , ricin or other nasty , please)☺
2012.04.28.Sa.T0540 EDT

--

Mark Hough --
"In the U.S. the State or prosecutor do not care if you are innocent. They are looking for a conviction regardless. … but this is fact about the U.S."

Bill Otis --
"A complete and utter falsehood. Of course if you have proof, the entire board would like to see it.

Where is it?"
Bill Otis ∙ 27 Apr 2012 at 21:53:04 EDT

Posted by: Docile Jim Brady ¦ Nemo Me Impune Lacessit | Apr 28, 2012 5:41:46 AM

There is an exoneration for every 5 executions. That is a rough estimate of the false positive rate in the cases with the ultimate care and expense taken. Among the exonerations, a quarter included a false confession. This rate is unbearable.

Because of the absolute immunities of these careless lawyers and judges, all out violence against them has full justification in ethics, policy, and justice. If they falsely executed an innocent defendant, they should be kidnapped, tortured and killed themselves, until tort immunity ends. Then they should be sued for a wrongful death, with strict liability criteria applying, because of the inherent dangerousness of their profession.

I would like to see any justification for the current self-dealt immunity of these awful incompetents.

Posted by: Supremacy Claus | Apr 28, 2012 7:14:50 AM

Docile --

"Surely you must have been exposed to publicity of a prosecutor who knowingly used perjured testimony to obtain a conviction and after a slow forward of several years , the prisoner is released for the simple reason that he was innocent."

I don't know that I've been "exposed" to such, but I've read about them, sure. I've also read about defense lawyers assisting the violent escape of prisoners, and defense lawyers who facilitate the transmission to outside confederates of terrorist-abetting information (Lynne Stewart). If, on account of these exceptional cases, I wrote categorically that, "the defense lawyer does not care about assisting violence," it would be a complete and utter falsehood, as was Mr. Hough's statement that, in the USA, the "prosecutor do[es] not care if you are innocent."

It would be a truthful statement, however, to say that, in this country, "the defense lawyer does not care if you are guilty." Indeed, under the canons of ethics, he's pretty much required not to care.

Personally, I DO care if guilty and dangerous people go free -- as should every citizen -- which is one of the main reasons I never became a defense lawyer.

Posted by: Bill Otis | Apr 28, 2012 10:42:08 AM

Bill Otis, greetings from Portland, Oregon!!

Your proposed course of action for innocent clients, regretfully, doesn't work. Michael Morton tried the same thing in Texas. But the prosecutor withheld exculpatory evidence. So an innocent Morton ended up serving 25 years while the reall killer was able to kill again. The problem lies with the mindset of certain prosecutors who are not properly trained and who justify winning at any cost.

Just today the following related article appeared:

"Prosecutors agree: Murder conviction of D.C. man should be overturned
By Spencer S. Hsu, Friday, April 27, 7:33 PM
Federal prosecutors on Friday acknowledged errors in the scientific evidence that helped send a Washington man to prison for 28 years for murder and took the extraordinary step of agreeing to have his conviction overturned.
U.S. Attorney Ronald C. Machen Jr. cited DNA evidence in also agreeing to drop the murder charge against Santae A. Tribble and never try him again. But even as the prosecutor said the evidence that convicted Tribble was flawed, Machen stopped short of declaring him innocent.
Tribble, 51, was found guilty of murdering a District taxi driver in an early morning robbery on July 26, 1978. His case was featured in articles last week in which The Washington Post reported that Justice Department officials have known for years that flawed forensic work might have led to convictions of potentially innocent people.
In Tribble’s case, prosecutors and the FBI laboratory were incorrect in linking a hair found near the murder scene to Tribble, according to recent DNA test results.
As the U.S. attorney’s office filed court papers late Friday, three former senior FBI lab experts and a national civil liberties group joined calls for the bureau and the Justice Department to review testimony in all convictions nationwide that depended on FBI hair evidence before 1996. Such a review would determine whether the evidence should be retested using DNA.
The Post reported last week that the Justice Department never reviewed thousands of cases that relied on potentially flawed hair comparisons, resulting in men like Tribble staying in prison. In many of the cases that the agency did review and found to have problems, prosecutors never notified defendants or their lawyers of the issues uncovered.
Machen has agreed to review all District convictions obtained with hair evidence and will ask the Mid-Atlantic Innocence Project to assess whether any old evidence should be retested with modern DNA techniques. Justice Department and FBI officials said they still were considering a similar review nationwide.
Rep. Frank R. Wolf (R-Va.) this week urged the Justice Department to review its handling of about 250 questionable convictions identified by The Post, most of which relied on hair comparisons.
Join with other professional prosecutors to improve training and professionalism to root out the bad apples."

I welcome your thoughts on how to prevent tragedies like the Morton and Tribble cases from happening again.

Best regards

Posted by: Michael R. Levine | Apr 28, 2012 11:07:11 AM

Hi Michael --

The approach I suggested for an innocent defendant facing a prosecutor with a weak case will of course not work every single time, as no course of action for ANYTHING works every single time. But having been in a prosecutor's office for about two decades, I know what prosecutors do with weak cases and defendants willing if not eager to go to trial. What they do is move on to the low-hanging fruit, of which there is a ton.

No system on earth will rid the world of the occasional corrupt or venal prosecutor, just as no system will rid the defense bar of the occasional sleaze who looks the other way (or worse) at client perjury or, in the worst cases, witness assassination (see the amazing case of Paul Bergrin, http://nymag.com/news/features/paul-bergrin-2011-6/index2.html).

Your list of cases of prosecutorial misconduct is impressive standing by itself. It looks different, however, standing next to the list of hundreds and hundreds of thousands of cases that are tried clean.

There are going to be unjust convictions and unjust acquittals -- the former, on account of the DJC, being the only outcomes that can be reviewed in the legal system. Society has to eat the latter. That's the system we have chosen, and with good reason, but unjust acquittals are still unjust, and dangerous people freed by stupidity, mistake or corruption are still dangerous.

The best remedy I can think of is for there to be sterner standards of honesty written into the canons of ethics, and stricter accountability for violating them. Thus, as I have said here before, the canons should require all counsel to be fully truthful, candid and forthcoming with the tribunal and each other, and should punish serious, intentional violations with disbarment, plus referral to a special prosecutor if there is a reasonable basis to believe that a crime (e.g., obstruction of justice) has been committed.

Hope things are going well for you in Portland. Here in Northern Virginia, spring has long since sprung. Cheers!

Posted by: Bill Otis | Apr 28, 2012 4:07:25 PM

as your own example states! "defense lawyers who facilitate the transmission to outside confederates of terrorist-abetting information (Lynne Stewart)."

Of cousrse when the shoe is on the other foot! everyone from the local DA to the damn UNITED STATES SUPREME COURT is there to guard the govt lawyers!

so you tell me? Which ones should we worry about more. The ones with little or no power in the actualy system....I.E. Defense Lawyers....or the DA's who control most of it!?

Posted by: rodsmith | Apr 28, 2012 11:14:09 PM

Good point, rodsmith.

Read Turner's piece, Bill. Our system looks reckless and unaccountable next to the German and the Japanese systems.

Posted by: John K | Apr 29, 2012 8:35:15 AM

rodsmith --

"so you tell me? Which ones should we worry about more. The ones with little or no power in the actualy system....I.E. Defense Lawyers....or the DA's who control most of it!?"

We should worry about those who employ their power to facilitate terrorists, murderers and thugs. Power is not the problem per se; it's the end for which the power gets used that counts.

Posted by: Bill Otis | Apr 29, 2012 9:59:31 AM

John K --

Germany and Japan would seem to be an unfortunate pair to hold up as models, given the history of the Twentieth Century.

Posted by: Bill Otis | Apr 29, 2012 4:42:16 PM

LOL shame on you bill!

"We should worry about those who employ their power to facilitate terrorists, murderers and thugs. Power is not the problem per se; it's the end for which the power gets used that counts."

You have to stop proving my case for me!

because again we come right back to the UNITED STATES GOVT!


remember cuba! castro? supported by the united states at the beginning
Shaw of Iran....supported for decades by united states
libya....original recognized and supported by the united states
the list is endless

so if you go by the numbers the biggest SUPPORTER of terrorism would be the UNITED STATES!

now the big question is that happening because of ideals or just PLAIN STUPIDITY! now me considering the evidence around us in our own country i vote for STUPIDITY!

but it is still happening.

so again we are right back where we started...WHO is the bigger threat to the peace....the private attorney looking in from the outside of the 1,000's of govt officals who run the system!

Posted by: rodsmith | Apr 30, 2012 1:26:44 PM

Otis: The approach I suggested for an innocent defendant facing a prosecutor with a weak case will of course not work every single time, as no course of action for ANYTHING works every single time.

Response: That's true, of course, but fails to address the fact that we really don't do anything about prosecutors who violate Brady or some other duty. When there is not incentive to play by the rules, you will get a lot less playing by the rules.

Otis: Paul Bergrin

Response: Bergrin lost his license and is facing a multi-count indictment for his actions. On the contrary, whatever happened to Michael Morton's prosecutor? To John Thompson's prosecutor?

Otis: Your list of cases of prosecutorial misconduct is impressive standing by itself. It looks different, however, standing next to the list of hundreds and hundreds of thousands of cases that are tried clean.

Response: Tried clean, so far as we know. There is only a very limited type of case where prosecutor misconduct can be determined after the fact - usually involving cases with DNA evidence and the number of exonerations, often after the entire productive life has been wrongfully taken is deeply disturbing. That said, I do agree that the great majority of prosecutors are true professionals who honor the system they serve. The problem is the absolute lack of any incentive to keep the marginal prosecutors on the right side of the law and the absolute absence of disincentive to prevent, as much as possible, the bad apples from abusing their power to obtain false convictions.

Otis: Thus, as I have said here before, the canons should require all counsel to be fully truthful, candid and forthcoming with the tribunal and each other, and should punish serious, intentional violations with disbarment, plus referral to a special prosecutor if there is a reasonable basis to believe that a crime (e.g., obstruction of justice) has been committed.

Response: That sounds very familiar - not much unlike Brady. What's that gotten us?

Posted by: C | Apr 30, 2012 6:39:12 PM

Obviously the first concerns me most, an innocent person being bullied and coherced into accepting a guilty plea because they do not have the money to defend themselves, or the person being under pressure to be the patsy allowing much more serious players In a multiple case such as corporate fraud, getting off free. (human rights activist)

Posted by: Xan Tok | Feb 11, 2013 3:33:11 AM

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