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June 22, 2012

Clemens' counsel says client was offered plea deal for probation term

This new AP article, headlined "Clemens risked prison when he rejected plea offer," confirm my suspicion that the feds offered Roger Clemens a plea deal which would have taken any prison term off the table.  Here are the basics:

Roger Clemens rejected a plea deal that would have spared him prison time, and instead took his chances by going to trial.  Clemens lawyer Rusty Hardin said in a telephone interview Thursday that prosecutors offered to let the former pitcher plead guilty to one count of lying to Congress when he denied using human growth hormone.  In exchange, Clemens would have received probation.

The seven-time Cy Young Award winner was indicted in August 2010 on six counts for allegedly lying to Congress for denying he used HGH as well as steroids.  At the time, Hardin revealed that his client had rejected a plea offer, but the lawyer declined to provide the details.  In the interview Thursday, Hardin said his client was offered the deal in December 2009 and immediately rejected it.

"His reason was, 'I didn't lie to Congress,'" Hardin said.  On Monday, a jury in Washington acquitted Clemens on all counts.

This story provides some further support for my fear that often only the most confident, strong and wealthy of defendants can reasonably be expected to put the federal government to its burden of proof.  If Clemens had any personal doubt about his innocence or had reason to worry about the reputational and economic impact of putting up a trial defense, it would have been extra hard for him to turn down a plea deal that would ensure he would not face any prison time.  (Indeed, I continue to wonder just how much Clemens' acquittal has "cost" him in terms of attorneys' fees.)

June 22, 2012 at 11:52 AM | Permalink

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"This story provides some further support for my fear that often only the most confident, strong and wealthy of defendants can reasonably be expected to put the federal government to its burden of proof."

The story provides further support for my oft-repeated advice that if you're innocent, you should say so -- rather than lie -- and put the government to its proof.

No matter how many times it gets said, the claim that people plead guilty principally because they're overmatched is false. They plead guilty because they are guilty and know the government has the evidence to prove it. Virtually everyone who has practiced criminal law for any time at all knows this.

Posted by: Bill Otis | Jun 22, 2012 2:06:42 PM

I think this post is important. The financial side of this is largely ignored and I think those who focus solely on "indigent defense" are making a mistake: ALMOST NO ONE can afford a trial. I think Clemens was guilty but just dug in. But in a case like John Edwards's, which was a total reach by the government, most people would have had to plead guilty to avoid the millions in trial costs. And had he pled, the government would have successfully stretched the law. If you are a middle income or upper middle income individual, you simply can't afford a trial. I fought the government - unlike Edwards, I was retried - and lost. But even had I won, I would still have more than $2 million in legal debt. I didn't have the most expensive lawyers. I had many friends who believed completely in my innocence suggest I should take a plea deal and save the money. I know that view is well-intentioned and I have heard other express it about other defendants in situations like mine, but I find it incredibly chilling nonetheless.

Posted by: Thinkaboutit | Jun 22, 2012 2:15:35 PM

Bill Otis: If you truly believe that, you are ridiculously naiive or hopelessly stupid.

Posted by: anon | Jun 22, 2012 3:04:34 PM

Lots of different sides to this coin. In run of the mill state cases. One pleads guilty because they get a huge plea deal...OWI, domestic abuse, assault...( Most are guilty as hell )

In federal court most plead guilty ( drug cases are the bulk ) cause they get a 3 level drop. Most drug users have their Crim History padded well, cat 4 to cat 6. A 3 level drop is years, in a system where there is no parole.. Drug users, gun bumps, there is no way these guys are getting off... I could convict them with bottle of ripple in one hand and a jack D in the other.. They are guilty as hell.

Next you have white collar and misc garbage cases like Bonds, clemens, Martha Baby...Not only do they have money, but they are smart and aggressive... They know it is harder for the feds to prove them guilty.

Madoff....Anyones 5 yr would of nailed him.....

So with Federal, it has a lot to do with the type of case it is and the financial well being.
Me...I would be sitting it out in the pen somewhere if the feds nabbed me..
There statues are so broad and sweeping...They could convict me of killing a dinosaur retro-actively
when I mow my grass in the back....As ridiculous as that is, its not just too far from it.

So whats the rule, if your guilty or if you have big bucks...

It depends on the factors mentioned above....Most dudes in federal court
( bite my tonuge are guilty ) but if its a crime that is somewhat difficult to prove and the person
has access to money, he will go to trial..

Drug cases that are facing a long sentence will most always go to trial.Why not, its your only chance.
If your going away for 30-40 yrs, your gonna fight like a wolverine...Likely to wiggle outof something.

This is what I've noticed...

I'm super glad Clemens got off, scott free. Well sort of, his name and bank acct got battered.
Why do we waste dollars on this.. I could care less...Must be like a day off at the movies
for Congress... Yes I do believe he lied to me... Hang'em, hang'em high... ( good old Clint )
Marion Jones...Wow, I could care less, she beat the Russians....Leave these folks alone..
Federal is supposed to be for things that the local boys have trouble handling. Crossing statelines,
to get the info and agencies to cooperate. Huge drug deals not garden variety, with neighbor hood
boys smoking it up...The feds make way to big a deal about most everything..
They couldn't organize a 3 car parade, get it done on time and within budget.

They have no budget nor any time constraints.. Enough said..But yes, we do need to place
a monetary factor on the cases that the feds prosecute...Remember NO PAROLE...we pay for it.

I'm amiss here, did Barry Bonds get off or his case still in Limbo? Thanks.

Posted by: Abe | Jun 22, 2012 3:46:49 PM

The right answer is probably somewhere in between.

I agree with Bill Otis that most defendants who plead guilty, are guilty. That doesn’t mean they would all be found guilty beyond a reasonable doubt, if they put the government to its proof and could afford the representation Clemens enjoyed. But acquittal and innocence are not synonymous. I would be surprised if there are very many entirely innocent people pleading guilty. (I am sure Bill would agree that even one is too many.)

Now, there are cases where the government has a variety of charging options available to it, and the defendant may not actually consider himself guilty of the precise charge that the government brings. In such a case, if the government offer is good enough, I’m sure some defendants take a tactical guilty plea, without really being convinced that they did all the things the government said.

Then you’ve got an extreme case like Edwards, where no one had ever been charged under the government’s theory, and no one knew what evidentiary rulings the court would make, nor what jury instructions would be given. Since there was no dispute that money had changed hands, the case was really one of interpretation. Frankly, I have no idea whether Edwards was guilty, even if all of the government’s evidence is accepted as true. You could easily imagine a less affluent defendant pleading out in a case like that, to minimize his risk, while having no idea whether he committed a crime or not.

I mean, if I faced a 10-year sentence if convicted but were offered probation in exchange for a guilty plea, I would have to seriously consider pleading guilty to a crime I did not commit. Wouldn’t you?

Posted by: Marc Shepherd | Jun 22, 2012 3:56:00 PM

I pretty much agree with you Marc...Good post.

Posted by: Abe | Jun 22, 2012 4:06:53 PM

I personally have plead guilty to a crime I did not commit.

OK. It was a misdemeanor traffic violation but it was easier to pay the hundred dollar fine than waste my time in the court system.

My own opinion is that people who are innocent plead guilty more often than prosecutors would like to infer but not as often as the defense bar would imply.

Posted by: Daniel | Jun 22, 2012 4:54:07 PM

Look at the Innocence Project files: The wrongful convictions are not all based on jury trials.

People confess to crimes they did not commit. See, e.g., the West Memphis Three case (Jessie Miskelly, Jr.'s false confession), the Norfolk Four case (involving false confessions by members of the Navy), etc.

Just as people confess to crimes they did not commit, people plead guilty to crimes they did not commit.

Posted by: Calif. Capital Defense Counsel | Jun 22, 2012 6:02:58 PM

anon --

"Bill Otis: If you truly believe that, you are ridiculously naiive or hopelessly stupid."

I have 18 years in the business, as a courtroom lawyer in federal court, and I will happily repeat what I said under oath, using my real name (which you might try, Mr. Anonymous Hot Shot).

I repeat: If you're a defendant, don't lie. Don't lie falsely to inculpate yourself, and don't lie falsely to exculpate yourself (which is actually what happens, as you surely know).

It's just astounding that I should have to tell adults what they ought to have learned when they were five.

Posted by: Bill Otis | Jun 22, 2012 6:04:17 PM

CCDC --

Please give the name of a single client of yours who pled guilty but was innocent.

Posted by: Bill Otis | Jun 22, 2012 6:18:20 PM

I will agree that there are lies going on in criminal cases, but, as today's Blog of the Legal Times reports, it's not inculpatory lying, and -- I concede -- it's not by the defendant, or not exactly by the defendant.

http://legaltimes.typepad.com/blt/2012/06/longtime-defense-lawyer-in-dc-found-guilty-in-fake-evidence-scheme-.html

Posted by: Bill Otis | Jun 22, 2012 6:30:57 PM

Bill, I think you are right that people shouldn't lie, and it pains me that people I know have pleaded guilty to avoid trials. Everyone should tell the truth. But if that is so, then why should cooperating witnesses get substantial reductions in sentences for simply telling the truth? I understand credit for accepting responsibility, but don't you think you create real risks when people who admit to crimes have one way to substantially reduce their sentences? Again, if everyone is expected to tell the truth under oath, why does the government hold off sentencing cooperators until after it sees what they say on the witness stand in the trials of others? You have to know what that breeds with human nature being what it is.

Posted by: Thinkaboutit | Jun 22, 2012 7:11:07 PM

The entire criminal justice system is a rapid money making machine. One pleads guilty to fictitious chrages in 95% of cases, with a high rate of innocence because 1) the costs and interference with jobs are too high; 2) thugs with hands on tasers surround you in court if you keep arguing; 3) the judge is hopelessly biased in favor of his paymaster, the government (or if a maverick, is soon out of his judge job, crushed, destroyed no matter how powerful, rich and intelligent). No one crosses the hierarchy. There is no legal recourse.

That fully justifies a violent remedy against the criminal cult hierarchy. It would preferably be state sponsored eradication of these cult criminals, as was done after the French Revolution to the Inquisition hierarchy. The business model is that of the Inquisition. The fremedy must involve beheading 1000's of internal traitors.

In a rational, less violent world, Clemens should sue the prosecutors and judge that allowed this case to proceed for all costs from their personal assets, not from the taxpayer. Let them buy liability insurance to compensate the victims of their carelessness.

Posted by: Supremacy Claus | Jun 22, 2012 7:35:42 PM

Thinkaboutit --

"Everyone should tell the truth. But if that is so, then why should cooperating witnesses get substantial reductions in sentences for simply telling the truth?"

Because the sort of people who wind up being cooperating witnesses often fall short in the character department, and need an additional incentive to do what they should have learned to do as children.

"I understand credit for accepting responsibility, but don't you think you create real risks when people who admit to crimes have one way to substantially reduce their sentences?"

Yes, it does create risks, which are pointed out in full in cross examination, as they should be. But you have to put on witnesses who actually know something about what was going on, and often these are people who were in cahoots with the defendant.

"Again, if everyone is expected to tell the truth under oath, why does the government hold off sentencing cooperators until after it sees what they say on the witness stand in the trials of others?"

Because if you don't, they'll back out or change their story after having had a midnight visit with one of the defendant's gang members, or simply to screw the prosecution, for which they have no great affection to start with.

"You have to know what that breeds with human nature being what it is."

It is precisely because human nature is what it is that people do not falsely inculpate themselves.

Posted by: Bill Otis | Jun 22, 2012 8:25:06 PM

Bill, when you say people do not falsely inculpate themselves and I personally know some who have, I guess we have to agree to disagree. And that's my personal knowledge. It doesn't include people like this guy who I imagine you will say really was guilty even though he says he knew he never was. Again, if you think it doesn't happen, I suppose nothing will change your mind. http://www.lodinews.com/news/article_766012c2-d45e-561c-a13a-16a322c2e8a8.html

Posted by: Thinkaboutit | Jun 22, 2012 11:12:49 PM

The Norfolk Four case is a well-known case. http://www.norfolkfour.com/

Innocent members of the United States Navy falsely confessed and pleaded guilty to a brutal rape/murder they had nothing to do with.

It, and other cases like it, debunk Bill Otis' fanciful notion that innocent people don't plead guilty due to inappropriate governmental/prosecutorial conduct.

Posted by: Calif. Capital Defense Counsel | Jun 22, 2012 11:53:04 PM

Bill:

I realize that you were a prosecutor. I also realize that you may be an exception in the government's prosecutorial role in that you are not a glory-hound; or you do not seek to just add a feather in your cap, regardless of the cost; or you do not have a vendetta (for whatever reason) against a particular defendant; or you do not lie; or you do not fabricate evidence; or you do not perjure yourself; or you do not suborn pejury; you do not railroad defendants; you do not seek to make a mountain out of a molehill of an offense; etc. (I have personally seen these cases, much to my chagrin!) Whether or not you agree, the fact is that everyone commits felonies. Most felonies just are not caught. A good read is: "Three felonies a day." Our country is fast becoming a felonious nation, no thanks to the gazillion laws on the books.

However, there is merit to both your arguments and Thinkaboutit's and CCDC's. I think that Marc Shepard captured the essence of the status quo. My question to you is: Have you ever served as a defense counsel? Yes, most defendants lie about the facts, primarily because they feel that even their own defense counsel do not believe them and "judge" them. (There is a grain of truth to this.) In defense of defendant's such behavior, I can candidly tell you that legal profession has become a mass-production/assembly-line business, whereby defendants are forced to plea-bargain, without realizing not only the enormous costs of penalties, but also of the long-lasting collateral effects of a conviction that practically ruin a defendant's life. (Really!) That is why I am a very strong proponent of getting rid of the plea-bargaining system. Let all the defendants go to trial. This way, the government will be forced to do its homework; pick and choose nonfrivolus cases; and put to the test; and finally, do its job for which it is being paid (by none other the defendant-taxpayers). The plea-bargaining system just engenders a culture of false convictions; terribly substandard service by defense counse; and the like. Also, vast majority of defense counsel - individually - cannot handle more than 4-5 cases simultaneously; but they do take on so many cases at the same time that they end up doing a woefully shoddy job. As you well know, litigating a case takes significant effort and time. Defense counsel have their own personal obligations, and they forget about their cases as soon as they get home. That is why I believe that defense counsel should ask their clients to be very actively involved in their defense; I would like defendants to learn law - specific to their cases - and ask their counsel all the questions (just like medical patients do with their physicians). (I realize that this a double-edged sword, but it is worth the trouble!) At bottom, nowadays, winning a case has become a crap shoot, at best.

Do you support litigating every criminal case before a jury; i. e., no more plea-bargaining for any reason? (Just to let you know of my position, I am personally all game for that one.) This way, nobody can say :"Oh, I pleaded guilty, because the government is an all-too-powerful juggernaut. I do not have the resources to fight the government." Government should pay for the defense; and I do not mean like it does now. That will be the true test of the government's willingness to prosecute every Tom, Dick, and Harry for even seeming minor, inconsequential offenses.

Lastly, people do inculpate themselves to save aggravation ... so they think (without realizing that it will come back to haunt them big-time, down the road). (Just ask any psychologist about human nature, under tremendous psychological and emotional stress.)

Posted by: John Marshall | Jun 23, 2012 5:02:34 AM

Thinkaboutit -

Two things struck me about the story you linked. First, the article recounts this:

"Sawyer was working as the interim head of the Governor's Office of Criminal Justice Planning, and doesn't deny he was trying to help the company — and make some money in the process. He said he checked with the appropriate officials to make sure he was following all the rules.

"I disclosed it to everybody I was supposed to disclose it to," he said. "A lot of people knew (the allegation) was false ... (they said), 'I'm reading in the paper on a big headline that you're hiding this, and this is a secret hidden deal, and you told everybody and their brother.'" ###

OK, if he told about his potential conflict of interest "to everybody and their brother," then, as he must certainly have known, he could not have been convicted under the Honest Services Statute even as it was then interpreted. After he put on the stand, say, the first three people he revealed it to, and the government had no answer, he would have moved for, and received, a directed acquittal. The Honest Services Statute, even prior to Skilling, did not criminalize conflicts of interest; it criminalized only undisclosed conflicts of interest.

Q: So why didn't he go to trial?

A: Because this completely one-sided, years-later story can't be the whole truth. It just makes no sense to plead guilty and go to jail when you have in your back pocket the dynamite that explodes the government's case. Does this sound a little fishy to you?

The second thing that makes this story smelly is that it does not show, or even claim, innocence in the sense in which any normal person understands that word. Normal people understand "innocent" to mean "didn't do it." But that is not what's going on here.

He admits he had a conflict of interest and even admits he intended to make money from it. Thus, it wasn't that he didn't do it -- he admits he DID do it. He "became innocent," to use a very odd phrase, only when, years later, the Supreme Court re-interpreted the statute.

Or, in sum, his story as revealed in the article is self-contradictory and therefore very suspect. But, even if taken at face value, it does not show that an "innocent" person, as that term is ordinarily understood, railroaded himself by falsely pleading guilty.

P.S. I would love to see what his factual admissions were in the written plea agreement, which, conspicuously, is not quoted at all in the article.

Posted by: Bill Otis | Jun 23, 2012 7:36:16 AM

CCDC --

Since you refused to answer, I'll ask again: Please give the name of a single client of yours, in all your years of practice, who pled guilty but was innocent.

Posted by: Bill Otis | Jun 23, 2012 7:38:45 AM

Bill, about a quarter of DNA exonerees either confessed and/or pled guilty and the fact of false confessions is well documented (one case here in Austin, the "Yogurt Shop murders" saw more than 50 false confessions after crime scene details leaked). Your stance is just not credible, and you're trying so hard it makes me think even you don't really believe it and are trying to convince yourself.

Oh, and whether CCDC can give you an example of someone "who pled guilty but was innocent," here's one.

Posted by: Gritsforbreakfast | Jun 23, 2012 8:22:35 AM

I had one -- although the plea was no contest as the defendant was adamant about his innocence and refused to say he was guilty. http://articles.petoskeynews.com/2001-08-06/prosecution_24064867

Posted by: Tim Holloway | Jun 23, 2012 9:31:17 AM

Ah, Bill, ever the poster boy for sanctimony and smugness.

Yes, Bill was a prosecutor for 18 years (and proud of it). Yet it's obvious he never spent even 18 seconds consoling a loved one bewildered and terrified by a relentless, predatory government intent on destroying them on the flimsiest of pretexts.

The wisdom here is in Doug's comments at the end of his post, Abe's observation that mowing the lawn might well be a federal offense if the feds want it to be, and John Marshall's opening remarks.

Bill will want to shift the talk at this point to Sandusky and Madoff and possibly even Manson and Dahmer as well. But the fact is that many ordinary folks who encounter the system as defendants emerge from the experience embittered and disillusioned...struck by the spectacular emptiness of lofty slogans about truth and justice that get bandied about.

One of the first shocks is the price of seeking justice. In the cases I'm familiar with the fee starts in the ballpark of $40,000. For that money, defendants are typically advised to bargain because:

1. Any co-defendants will offered progressively better deals to help convict those who insist on proclaiming innocence. The more effectively damning the testimony they can offer, the less time they spend in prison. But that's not bribery or extortion or obstruction. Really. It's not. Just ask Bill.

2. The number and seriousness of pending charges will be ratcheted up until the consequences of losing become all but unthinkable...even for the innocent and wrongly accused.

3. A trial on complex charges will cost upwards of $250,000. To get an idea about the burden that cost imposes visit a white-collar-crime law practice website or two. Typically the sites ask prospective clients to list home equity and liquid assets of their parents and grandparents as well as their own. Bear in mind that asset forfeiture (before any finding of guilt) reduces or eliminates what many defendants have left pay for representation.

4. The odds against winning are huge in part because (a) jurors have been inculcated from early TV programming on with the absurd notion Bill likes to foster...that innocent defendant is an oxymoron. Or (b) in federal court the charges are so sweeping, vague or inscrutable jurors might just as easily default in favor of the government.

In fact, I once covered a trial in which the jury halted deliberations to ask the judge if it were "possible" to acquit on the conspiracy charge. After having listened with the jury to the judge's instructions on the vague, sweeping statute I understood their confusion on that point. Who amongst us ISN'T guilty of conspiracy?

Yes, of course, Bill. I mean besides you.

So for many/most defendants, including the innocent and wrongly accused, it boils down to a high-stakes craps shoot. Are they willing to trust a panel of strangers to set aside its authoritarian leanings and childhood illusions to give them a fair shake? Are they prepared to go to prison for decades if the dice don't fall their way? Are they willing to risk their family's wealth in the process?

All in all Clemens probably should consider himself lucky that all he lost was his reputation and a small fortune.

Posted by: John K | Jun 23, 2012 10:17:26 AM

Grits --

If you were a lawyer, you might know what you were talking about (as Tim Holloway does).

What you say is, "Oh, and whether CCDC can give you an example of someone 'who pled guilty but was innocent,' here's one [giving a link]."

As is typical of you, the claim is false. The fellow in the story, one Cook, did not plead guilty; he pled "no contest." You have to read all the way through the third paragraph of the linked story to see this: "Cook pleaded no contest instead of not guilty."

A plea of no contest is NOT AN ADMISSION OF GUILT. It is explicitly the refusal of such an admission, while acknowledging that the state has sufficient evidence to convict you at trial.

If you won't read your own linked stories, next time don't expect me to.

Posted by: Bill Otis | Jun 23, 2012 11:07:15 AM

Again, as a person who went through a complex three week white collar Federal trial, and was ACQUITTED of all charges...I knew that I could NOT plead guilty to the charges against me. Besides the fact that I KNEW I was NOT guilty, I had to consider the consequences if I did NOT fight the charges: I would be a convicted felon, minor children could be left parentless (I was accused with my spouse), I would lose all of my assets through forfeiture, including my residence and my substantial life savings, and I faced significant jail time.

I was NEVER offered an "official" plea bargain. The closest my attorney (who continually begged the prosecutor to drop the charges against me) got was: testify against spouse, he would "consider" recommending probation, and for me to give up all rights to the seized assets. I NEVER waivered from wanting to go to trial, even after becoming aware of the fact that: 90% of people plead guilty, a significant portion of people who go to trial are found guilty, sentencing can appear to be harsh BECAUSE you choose to go to trial, etc.

I am EXTREMELY grateful that 1. I was able to retain counsel of my choosing, who got behind me 100% and 2. That I had had faith that the truth of the matter would prevail, despite the overwhelming odds. I know that I am VERY VERY LUCKY to have been able to retain counsel, who worked below the dollar numbers quoted above, but was still pretty expensive (I'm STILL paying)

As one of the very rare individuals who has defeated Federal charges, I cheer ANYONE who takes on a trial. The general public (and my friends and family) were certainly not aware of the fact that me going to trial was a VERY rare event. People are lulled by the headline trials, and watching television and movies that "most" people who are accused of crimes go to trial. They were shocked when I produced research that this is just not true.

Finally, I was also appalled at how sweeping and vague many of our laws are. The money laundering laws allow perfectly innocent conduct to be viewed as criminal. Buying a boat becomes "concealment money laundering"--having several bank accounts is "evidence of concealment", and heaven forbid if you use 2 or 3 different accounts to round up the money for the downpayment on the boat! It doesn't matter that there are perfectly logical explanations for why you used several accounts (well, I opened this one to get the free toaster, etc.), the fact that you used them, can be inferred as "evidence" of money laundering.
"Look at all the layers, and how complex it is!" says the prosecutor--the same prosecutor who asked the financial expert "would you consider this complex?" and of course the Government's witness says "Yes". I thank the jury every day for NOT buying it.

Yes, I'm grateful I went to trial and was acquitted, but as with several other cases that are quoted, I chafe against the decision to indict me in the first place. I google and see the LIES the Government has put out in the media about me...and there is nothing I can do about that. I will be forever tarnished--and nothing will ever really put that right. Not to mention that nearly 4 years after the Government seized my assets, I am still fighting.
Forfeiture puts a whole new wrinkle on decisions to go to trial.

Posted by: folly | Jun 23, 2012 11:25:32 AM

John K --

"Ah, Bill, ever the poster boy for sanctimony and smugness."

Ah, John, ever the poster boy for complacency and excuse-making.

Really, John, I know you can do better than that.

Many commenters here model themselves after Sandusky's lawyer -- everything for the client (including demonizing child sex abuse victims), the truth be damned. Hey, ya know, as long as the fee is high enough, or the ideological brownie points rewarding enough.

It's quite true that I took another path. If you're waiting for me to apologize for putting meth dealers, swindlers and strong-arm artists in the slammer, you'll be waiting a long time.

If these guys were, as you put it, " embittered and disillusioned," that's just too bad. They had the option of changing their behavior and getting an honest job like the rest of the world.

Posted by: Bill Otis | Jun 23, 2012 1:09:02 PM

Folly: I went to a party to elect Obama. Many Harvard Law grads from the East Coast. Every single one was doing white collar defense. In one pleasant and funny conversation, I changed the subject. I asked why defense lawyers never directly attacked prosecutors, personally. For example, do total forensic e-discovery on their personal, and work computers. I guarantee some child porn will be found, I said. Refer it to the FBI, as is your duty. The discovery is justified by the search for an improper motive and to support prosecutorial disqualification to break up any momentum. This was the reply all of a sudden, "We do not have any client lawyer relationship. What you propose is totally unethical. Even if you succeed, you will be getting a superior to the prosecutor, who will be much harder to deal with." Then he literally ran away from me, before I could my mouth open, to say, "But,..."

Posted by: Supremacy Claus | Jun 23, 2012 1:43:44 PM

Bill - A plea of no contest is treated by the courts as the same thing as a guilty plea. While no contest pleas are exceedingly rare in federal court (I don't recall ever seeing one), they are very common in state court; I see more no contest pleas than guilty pleas here in California. Calif. State prosecutors don't care whether a defendant pleads guily or no contest; they view the pleas as functional equivalents.

A no contest plea is not like an Alford plea (sometimes known as a West plea in California). With an Alford plea, a defendant pleads guilty or no contest, but maintains his/her innocence. With a no contest plea, a defendant declines to contest the charge(s) being resolved, but does not maintain his/her innocence.

So, your smug remarks to Grits are way off base.

I've had clients enter Alford pleas. I've had clients state, during Rule 11 plea colloquies, that the written factual basis for the plea is true, even though it wasn't. I had a client quickly plead guilty to a crime he did not commit so that his fiancée, who was being improperly detained by your fellow drug warriors, could get out of custody. (Filing and threatening to file bogus charges against the family members of suspected drug traffickers is a lovely, and increasingly common tactic of your fellow drug warriors.)

Again, the well-known Norfolk Four case involved false confessions and guilty pleas by innocent men. Yet, you prattle and blather as though the case did not happen.

The obviously innocent West Memphis Three were only released (after decades of imprisonment) after cowardly Arkansas prosecutors conditioned the agreement for their release on Alford pleas. You're aware of the case, yet, again, you persist in blurting out swill that you know is refuted by the empirical reality of cases such as this.

What is wrong with you?

Posted by: Calif. Capital Defense Counsel | Jun 23, 2012 2:55:56 PM

CCDC:

Yes, you are correct; prosecutors tend to overcharge (and not to mention, falsely charge others, who are near and dear), just to get the defendants to "fold." The fundamental issue with today's "typical" prosecutor is that he/she is a demigod and that one can get away with anything, because they have what is eseentially unfettered charging discretion. When people tell me: "Oh, no, there is a grand jury that acts as a "firewall"!" I say: "Bullshit!" Grand juries are nothing more than marionettes in their masters' hands. Further, persons serving on the grand jury, for the most part, are really afraid of the "law." A classic case in regard to prosecutorial hubris is Bewrger vs. United States, 295 US 78 (1935) - read the footnotes (on the "margin"). To make matters worse, they do not even know the Constitution and what it stands for! At botttom, they are dumb suckers. One thing that I have noticed is that during the voir dire process, prosecution (and defense, to some extent) does not want educated, savvy people, at any cost. Engineers, scientists, mathematicians, et al (in some instances, even literature majors). The reasons for that, as you well know, include that they - for the most part (and there are exceptions) - are rational, analytical, and "questioning" type.

Look, while I do not agree with Bill on the crux of this post, I must say this: He may be one of the exceptions to what I have seen, time and again, in prosecutors. That is why I try not to make my comments personal. That serves no purpose. It is just unfortunate that he believes "all" prosecutors are beyond reproach and that they are all selfless (and doing the "government" service). That premise is simply not true.

As for the far-reaching tentacles of the law, I believe that it was Justice Jackson (who was once the USAG) who said that conspiracy was the most elastic statute. Nowadays, we have many more (and much more lethal) statutes ensnaring ordinary, run-of-the-mill offenders (and "legally-innocent" persons). My own personal saying is this: "If you look for shit, then you are going to find it even up God's ass. So, it is best not to look for shit, unless you REALLY have to." (The corollary of this is: Is there anybody without "shit"?)

Posted by: John Marshall | Jun 23, 2012 4:31:04 PM

CCDC --

You really need to get the elemental stuff right.

Grits said that Cook pled guilty. That is flat-out false. He did not plead guilty; he pled no contest. A no contest plea IS NOT THE DEFENDANT'S ADMISSION OF GUILT; indeed the whole purpose of that plea is so that the defendant can AVOID admitting guilt. You don't know this??? Grit's contention that he was supplying a case in which an innocent man pled guilty is false both nominally and in substance.

If you ever put down the bong, read some law.

"I've had clients state, during Rule 11 plea colloquies, that the written factual basis for the plea is true, even though it wasn't."

You just stood there while your client lied to the court, and you knew it??!! Is that what the canons of ethics say you should do?

No wonder you insist on remaining anonymous.

Posted by: Bill Otis | Jun 23, 2012 6:26:27 PM

SC --

You need to start going to better parties.

Posted by: Bill Otis | Jun 23, 2012 7:21:37 PM

28 people who pleaded guilty to crimes they didn't commit: http://www.innocenceproject.org/Content/When_the_Innocent_Plead_Guilty.php

Posted by: C.E. | Jun 24, 2012 12:21:19 AM

C.E. --

"28 people who pleaded guilty to crimes they didn't commit."

Out of how many hundreds of thousands of convictions?

Right. Treating an infinitesimal flyspeck as if it were anything approaching a significant part of the system -- much less as if it should drive policy -- is too silly to argue about.

Posted by: Bill Otis | Jun 24, 2012 12:54:45 AM

Blathering Bill:

28 cases of definitive exonerations.

The Innocence Network exoneration cases thus far have been almost all DNA cases.

How many more pleaded guilty to crimes they did not commit in non-DNA cases? Hundreds? Thousands? It is simply a matter of statistics and logic: there are many more innocents sitting in prison who cannot be exonerated on the basis of DNA, because there is no DNA evidence in their cases. (Is your "brain" able to process that?)

One innocent in prison is too many. Unlike you, I'm unwilling to tolerate a single one.

Posted by: Calif. Capital Defense Counsel | Jun 24, 2012 12:27:58 PM

CCDC --

"One innocent in prison is too many. Unlike you, I'm unwilling to tolerate a single one."

If you are not ready to tolerate the inevitability of error in the criminal justice system -- ours or any other ever devised -- you are not ready for adult life.

Breast-beating, absolutist, True Believerism is fine, if you're in middle school.

Posted by: Bill Otis | Jun 24, 2012 2:12:29 PM

CCCP stated: "One innocent in prison is too many. Unlike you, I'm unwilling to tolerate a single one."

Plain and simply, this is a call for anarchy. There is no system that is or ever will be perfect. You are calling for no criminal justice system at all.

In order to achieve what you feel is tolerable, every current (and future) murder, rapist, and thief will have to be released from prison immediately. You have entered straightjacket territory. Even the Che tee-shirt wearing crowd in here has to think you are a blithering idiot.

Posted by: TarlsQtr | Jun 24, 2012 2:55:05 PM

TarlsQtr --

It's hard to tell whether CCDC is more dishonest or more rude. The principal item of dishonesty he's pushing is that there are legions of people in prison who are innocent but pleaded guilty. If in fact he's a lawyer, which I increasingly doubt, he knows perfectly well that this is false. The actual problem with plea bargains is that prosecutors are willing to trim out so much just to get a deal.

As to rudeness: He has recently said that I'm more of a menace than Jerry Sandusky. This is the sort of tantrum we have come to expect from him. The disappointing thing is that none of the defense types who present themselves as more civil, and are quick to demand civility from conservatives, have uttered a word of criticism.

Posted by: Bill Otis | Jun 24, 2012 3:39:33 PM

Hi Bill,

I am not certain why we should have to choose whether he is more dishonest or rude. He epitomizes both.

The defense types do not criticize his actions because they agree with it on some level. In their view, you are evil and the extremist even though your viewpoint on almost every issue discussed here is not only in the mainstream but in the overwhelming majority. This brings us to some of the major pillars of progressive ideals. 1) Redefine words. "Extremist" has come to mean anyone who disagrees with them just as "spending cuts" means INCREASING expenditures by less than the previous year's rate or "croneyism" is investment. 2) Lies are fine, as long as the lies support the "right" side of the issue. 3) Never criticize your own (see Newark, NJ mayor for a perfect example). Saying that you are more of a menace than Sandusky is one of the most irresponsible statements one could make. Their silence speaks volumes about their outlook.

CCCP is just one of those pathetic internet bullies, too small of a man to ever say these things in person. IF he is a lawyer, want to bet that he never says these things to the sitting judge or prosecuting attorney in the courtroom?

As I said in another thread, I am pretty certain that Will Rogers never met CCCP.

Posted by: TarlsQtr | Jun 24, 2012 5:14:19 PM

Somebody left the gate open at Townhall.com

Posted by: John K | Jun 24, 2012 11:44:16 PM

Wow... Bill Otis comes off as such a jerk in these comments. He is an example of a "good" former prosecutor? I can believe it. They aren't ALL bad necessarily, but many of them are supremely arrogant and they don't care about justice one bit: they care about looking good and getting promoted. In service of their own selfish life goals, they conveniently embrace many of the fallacies that Otis espouses. Things like all defendants being guilty, heck, even if the defendant is not guilty of the crime THEY charged, he is probably guilty of something! Amirite?!

There are many cases where a prosecutor should be lenient because the evidence is weak, or because there is significant mitigation, but yet they don't care at all. In their mind, all they care about is not looking weak to their boss. When I see a good plea deal come down, it isn't because the prosecutor says "hey, you know, this guy isn't really that bad", even if that is, in fact, the case. The reason is because if they can't demonize the defendant, they are afraid of jury nullification, or at least a jury bias against the prosecutor that will make a conviction difficult.

This site has showed research that the massive prison problem in this county is almost solely because prosecutors have ramped up their charges. Yes, many prosecutors overcharge, despite it being unethical. Many prosecutors are vindictive, so defense counsel is afraid to attack the weak charges at preliminary hearings or on motions because it will piss the prosecutor off and make it impossible to get a plea deal. Another really really nasty reason prosecutors overcharge is that overcharges prevent the defense from going over their head to the judge and making a plea to the court. After all, if you are charged with 8 counts and you're only guilty of 2, it is very hard for a judge to give you a good deal since he has to sentence you on all 8, only the prosecutor can drop the bogus 6 and offer a deal on the 2 real charges.

And yes, prosecutors play all kinds of games to get weak charges past preliminary, and cops will say more or less anything to protect flimsy charges as well. Judges don't like throwing out charges unless they are clearly completely bogus, so there is no procedure to stop or mitigate overcharging.

And yes, in some cases, when prosecutors are being very unreasonable, a judge taking a court plea will give a BETTER deal to all charges, then the prosecutor is willing to give to the real charges. So of course a defendant will lie and plea guilty to all charges if it means less jail/prison time. Sadly those "extra" charges often carry hidden penalties that defense attorneys don't fully advise their clients about. It is a messed up catch 22.

Yes, the vast majority of crimes never get caught, but that is no excuse to putting the screws to everyone who does. Not everyone who gets caught is equally bad. Some are career criminals, likely recidivists, and predators. Others are good people who simply did something stupid and have paid many times over for it.

I used to drink deeply of the kool-aid that defense attorneys were bad, all defendants were guilty and just trying to get off on technicalities, and prosecutors were heroes of the people. Then I saw how it really works 1st hand, and it is an ugly, ugly system. There are so many perverse incentives. Cops lie at the drop of a hat (another thing that shocked the hell out of me, I was so naive), and prosecutors are generally very ambitious people who don't care one bit about whose lives they destroy, they just lie to themselves and delude themselves into thinking every defendant is a monster so they can feel good about themselves.

Posted by: lawguy | Jun 25, 2012 4:21:13 PM

lawguy --

I don't think you missed a single shibboleth in the Prosecutors Are Satan Manual. Did you write it, or do you just do the annotations?

P.S. If you can come up with a single complaint against me for professional misconduct from either the bench or bar in the almost two decades I was an AUSA, let's see it. Of course you have my name so you can do the research. Is there some reason you decline to give us yours?

Posted by: Bill Otis | Jun 25, 2012 5:13:36 PM

Bill,

What was that thing you did with the boilerplate language in plea agreements? Didn't you craft and lobby for a standard waiver barring defendants from appealing sentences more severe than what they expected when they signed the agreements?

I'm fuzzy on the details now, and I concede it probably doesn't fall under the heading of "professional misconduct"...probably closer to abuse of power. Anyway, it struck me as heavy-handed, unfair, sinister, diabolical.

Whatever you call it, it made it that much more difficult for defendants to get an even break from a system that already enjoyed virtually every advantage over citizens accused of crimes.

Posted by: John K | Jun 26, 2012 8:46:59 AM

John K,
Are you talking about appeal-waiver clauses in plea agreements? I just sent out a petition for certiorari on that issue. Although I know it is difficult to get the Court to grant certiorari (especially when I file the petition), I think we could use some guidance from the big guys on these things. Plus, there is a split.

Tim Holloway

Posted by: Tim Holloway | Jun 26, 2012 1:44:18 PM

Yes, Tim. Unless memory fails, the plea-waiver clause was Bill's baby.

Posted by: John K | Jun 26, 2012 2:51:57 PM

Bill and TarlsQtr:

Bill Otis stated:
"CCDC --

"One innocent in prison is too many. Unlike you, I'm unwilling to tolerate a single one."

If you are not ready to tolerate the inevitability of error in the criminal justice system -- ours or any other ever devised -- you are not ready for adult life.

Breast-beating, absolutist, True Believerism is fine, if you're in middle school."

TarlsQtr stated:

"I am not certain why we should have to choose whether he is more dishonest or rude. He epitomizes both.

The defense types do not criticize his actions because they agree with it on some level. In their view, you are evil and the extremist even though your viewpoint on almost every issue discussed here is not only in the mainstream but in the overwhelming majority. This brings us to some of the major pillars of progressive ideals. 1) Redefine words. "Extremist" has come to mean anyone who disagrees with them just as "spending cuts" means INCREASING expenditures by less than the previous year's rate or "croneyism" is investment. 2) Lies are fine, as long as the lies support the "right" side of the issue. 3) Never criticize your own (see Newark, NJ mayor for a perfect example). Saying that you are more of a menace than Sandusky is one of the most irresponsible statements one could make. Their silence speaks volumes about their outlook.

CCCP is just one of those pathetic internet bullies, too small of a man to ever say these things in person. IF he is a lawyer, want to bet that he never says these things to the sitting judge or prosecuting attorney in the courtroom?"

I believe that it was Thomas Jefferson who said that he would let hundred guilty men go free before he hanged one innocent person.

Yes, I do realize that our justice system is not foolproof (or error-proof), but if we SHOULD err, then we MUST err on the side of caution by not hanging innocent people. (The same goes for incarcerating defendants - needlessly - based on flimsy evidence, etc.) Perhaps, you will never understand it, because you have not experienced the agony of going through the wringer called unjust, malicious (based on whims and fancies of a lone prosecutor with the "discretion to charge". I realize that there are SUPPOSED to be "checks and balances" within the prosecutors' office, but unfortunately, they simply are meaningless. As you well know, even the USAG cannot "tell" a US Attorney's ofice to "drop" the charges.) You may recall many politicians have the "holier-than-thou" attitude until they are convicted, sentenced, and go to prison. Then, they all become "reformed" persons. (In prison, they, as do most defendants, a la deus ex machina, find God and remorse.) I do not think that I have to cite specific examples of such cases as they are all over the internet, nowadays!

Bill:
Also, I do not think that anyone is questioning your personal presecutorial integrity (I might have missed something, but I can tell you that I prsonally have not). With that said, I do not think that you should defend all the prosecutors, which is what many of the "dissenters" (with your opinion) are stating. The arguments that both you and your opponents have made do have merits, but in the end, we should be reminded of Thomas Jefferson's statement.

Speaking of plea-waiver clauses, most US Attorneys' Offices simply use the boilerplate language, because they are just lazy. The same goes for the indictments and informations, also. (Just see the US Attorneys' Manuals on the DOJ website. It is a farce, really.) Even then, they do not even try to understand what these manuals say; they just blindly copy them literatim. What they do not realize that these boilerplate clauses are just a can of worms.

At bottom, not all prosecutors are evil, bad persons. However, there are quite a few bad apples, and it is the prosecutors' job to weed them out, pronto. In addition, a significant number of defense attorneys are in cahoots with the prosecutors; they do not want challenge the "system," lest they be branded "pariahs"; and they, too, are greedy and lazy. (Come on, a decent law school costs $100,000 just to get a meaningless JD! Obviously, these lawyers have massive debts to pay off; and the sucker-defendants just happen to be easy pickings!)

So, let us not resort to personal attacks; instead, we should seek to address the root-causes of the problems.

Posted by: John Marshall | Jun 26, 2012 3:35:13 PM

prosecutors do unethical things all the time, but there is no accountability for it. what was that case where the prosecutor knowingly concealed evidence of innocence (a blood test) and the guy finally gets out after rotting in prison for a very long time, then he sues the prosecutor and it got thrown out because the court found that prosecutors have absolute immunity, which cops don't even get?

so yeah, no one is looking over the prosecutors shoulders. they have tons of power and no responsibility or accountability.

so, Bill Otis, I couldn't care less that you don't have any official records of discipline. There are a lot of shady civil lawyers out there with clean records, so I don't think those records mean anything, much less so with prosecutors.

I didn't say prosecutors were all bad. Some can be very reasonable at times, but that tends to be the exception to the rule these days. Most good defense attorneys sweet talk and kiss up to prosecutors anyway, because if you fight them (unless youre backed into a corner and they force you to) theyll just get vindictive and do things like refile the case with more serious charges.

Oh, did you see the news story that just came out where a guy got charged with assault with a deadly weapon for throwing FRENCH FRIES? Yeah... what is deadly about french fries, the cholesterol?

Posted by: lawguy | Jun 26, 2012 9:35:58 PM

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