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July 12, 2012

"The Unexonerated: Factually Innocent Defendants Who Plead Guilty"

The title of this post is the title of this new article now available via SSRN authored by John Blume and Rebecca Helm.  Here is the abstract:

Several recent high profile cases, including the case of the West Memphis Three, have revealed (again), that factually innocent defendants do plead guilty.  And, more disturbingly in many of the cases, the defendant’s innocence is known, or at least highly suspected at the time the plea is entered.  Innocent defendants plead guilty most often, but not always, in two sets of cases: first, low level offenses where a quick guilty plea provides the key to the cellblock door; and second, cases where defendants have been wrongfully convicted, prevail on appeal, and are then offered a plea bargain which will assure their immediate or imminent release.

There are three primary contributing factors leading a criminal justice system where significant numbers of innocent defendants plead guilty to crimes they did not commit. The first is the perceived need that all defendants must plead.  The second is the current draconian sentencing regime for criminal offenses.  And, the final contributing factor is that plea bargaining is, for the most part, an unregulated industry.  This article discusses cases in which innocent defendants plead guilty to obtain their release, thus joining the “unexonerated” and then propose several options the criminal justice system should embrace to avoid, or at least ameliorate the plight of innocent defendants who plead guilty.

July 12, 2012 at 08:20 AM | Permalink

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Comments

To call plea bargaining an "unregulated industry" is the height of silliness -- regulation (as in government control) is inherent to plea bargaining since the government is always one of the parties.

That said, the problem of innocent people pleasing guilty is a real one, and is worth addressing.

Posted by: A Modest Proposal | Jul 12, 2012 9:31:05 AM

It is also regulated in that all plea bargains must be approved by a court, and attorneys are subject to discipline for misconduct in connection with plea bargaining. (Yes, I know that attorney's are rarely disciplined even when they should be, but sloppiness in enforcing the rules does not mean that there are no rules.)

Of course, some of the summary contains semantically meaningless terms. For example, it complains that "false" plea bargains are the product of a draconian sentencing laws. An equally valid argument can be made that "false" plea bargains are the results of an overly lenient sentencing scheme. It is not the absolute severity of the punishment, but the wide difference between the most severe punishment and the least severe punishment that caused the differnce. If the only available options in plea negotitions were life without parole for thirty years and life without parole for thirty-five years, there would not be very few "false" pleas.

I would also disagree that there is a perceived need for "all" defendants to plead. I think there is a systematic need for a large number of defendants to plead. But as a prosecutor, I may have been suprised to see a first-time offender on a minor felony like a bad-check go to trial when I offered a probationary disposition, but I did not need that case to plead.

Posted by: TMM | Jul 12, 2012 10:28:54 AM

In the second paragraph, should be "creates the incentive to plead" not "caused the difference."

Posted by: TMM | Jul 12, 2012 10:30:31 AM

Bill Otis and his fact-averse ilk were recently denying the existence of this phenomenon. It does not comport with their narrative -- that the government wears a white hat in the criminal justice system.

Posted by: Calif. Capital Defense Counsel | Jul 12, 2012 10:31:18 AM

Here's a radical suggestion:

Don't lie in court.

If you do, expect bad things to happen.

It's just amazing that defendants, who complain relentlessly that no one believes them, now complain even more loudly when, lo and behold, they're taken at their word.

Posted by: Bill Otis | Jul 12, 2012 10:55:02 AM

Bill,

Sorry, but I do come down on the opposite side here, judges should in general be making a much more thorough examination of the materials presented before accepting a defendants word, even under oath, that they committed some particular crime. I would actually make this cut both ways; I believe such an examination would lead to many more proposed pleas being rejected because as Supremacy Clause says at that point the charges are a fiction, rather than leading to a great number of pleas being rejected because the judge is not convinced of the defendants guilt. But in either case I do think the judge should not just be a rubber stamp upon the prosecutor's handiwork.

Posted by: Soronel Haetir | Jul 12, 2012 11:25:36 AM

C’mon, Bill. You seem to be an honest fellow, but can’t you imagine a situation where a tactical guilty plea (i.e., a lie that secures your freedom) would be worthwhile? I sure can.

Posted by: Marc Shepherd | Jul 12, 2012 11:27:11 AM

Here's a fact reported by Professor Blume in his article:

"We now know, for example, due to the availability of DNA testing, that at least twenty-three individuals who pled guilty to crimes they did not commit served a combined total of more than one hundred years in prison before their exonerations."

Bill Otis will deny or avoid this fact. It does not fit within his narrative.

Posted by: Calif. Capital Defense Counsel | Jul 12, 2012 11:31:55 AM

Professor Blume also aptly describes the mentality with which Bill Otis and his ilk are afflicted in matters of this nature:

"Most prosecutors and law enforcement officers are hostile to all post- conviction claims of innocence.59 This has been described as a “conviction psychology” which leads prosecutors and police to resist claims of innocence in order to maintain the integrity of the criminal justice system (by not admitting that the system had got it wrong once), improve their own chances of promotion (by maintaining conviction rates) and avoid wasting time (as they believe defendants are guilty regardless of how persuasive the evidence of innocence is)."

[Footnote 59 - Daniel Medwed, The Zeal Deal: Prosecutorial Resistance To Post- Conviction Claims of Innocence, 84. B.U. L. Rev. 125(2010).]

Posted by: Calif. Capital Defense Counsel | Jul 12, 2012 11:40:05 AM

An compelling example discussed in the article:

"Sterling Spann was convicted of the murder of an elderly widow, Melva Neill, in 1981. The jury sentenced him to death.60 During the post- conviction investigation, a private investigator discovered that exactly sixty days before Ms. Neill was brutally murdered, another elderly white woman was killed in the same rural area pursuant to the same modus operandi (the victim was sexually assaulted, strangled, and left in the bathtub). The same investigator discovered that exactly sixty days after the Neill murder, a third elderly white female was sexually assaulted and strangled (she had no bathtub but fluid was poured on the body).61 Further investigation revealed that a paranoid schizophrenic, Johnny Hullett, was convicted of killing the third victim. When interviewed by members of Spann’s defense team, Hullett insisted Spann was innocent and acknowledged his own involvement in the murders. One of the leading forensic pathologists in the world, Werner Spitz, examined all three autopsy reports and concluded that given the unique nature of the strangulation in all three cases, the murders were committed by one person. Leading criminal profilers including the chief former FBI profiler, concluded that the crimes were committed by one person and that Hullett, not Spann, matched the profile.62 Furthermore, the fingerprint and serological evidence that led to Spann’s conviction at trial was tainted. Even the State’s fingerprint examiner conceded that the prosecution’s theory of how Spann’s prints were left at the scene was “impossible.” Given this new evidence of innocence, the South Carolina Supreme Court ordered a new trial.63

"Prior to the retrial, the prosecution offered to allow Spann to enter an Alford plea making him immediately eligible for parole; the prosecution also agreed that it would not oppose parole. Having spent twenty years on death row, Spann, who had been out on bond for more than a year prior to the scheduled trial, decided to take the deal. His sister, who had been his “rock” during the many years he was incarcerated, had recently been killed in an automobile accident. And, one of his best friends on death row, Richard Johnson, was executed, despite Johnson’s strong claim of factual innocence.64 Devastated by his sister’s death, and frightened by Johnson’s execution, Spann decided he needed to put the matter behind him, plead guilty and secure his freedom.65"

Posted by: Calif. Capital Defense Counsel | Jul 12, 2012 11:50:22 AM

it is criminal stupidity! like this that makes normal americans want to hang or shoot judges!

"Even the State’s fingerprint examiner conceded that the prosecution’s theory of how Spann’s prints were left at the scene was “impossible.” Given this new evidence of innocence, the South Carolina Supreme Court ordered a new trial.63"

ANY REAL judge when faced with evidence like this should not choke! this should have resulted in a RULING along these lines!

"Since based on this new uncovered evidence the police and DA involved in this conviction were IDIOTS! CASE IS DISMISSED in the interest of justice!"

No fucking retrial NO fucking chance to give the DA a way to cover said ASS! NOTHING BUT AN IMMEDIATE RELEASE! with a GREAT BIG CHECK WITH LOTS OF ZERO'S

Posted by: rodsmith | Jul 12, 2012 12:28:01 PM

Marc --

"...can’t you imagine a situation where a tactical guilty plea (i.e., a lie that secures your freedom) would be worthwhile? I sure can."

Sure I can imagine it. I can imagine numerous situations in life where lying (or cheating or stealing) would be "worthwhile," if "worthwhile" means you get something you want a lot out of it.

My parents taught me not to lie EVEN IF I could get what I really wanted by doing so. Indeed, they told me that, the greater the temptation to lie, the more important it is to resist.

This was the right advice when they gave it, and it's the right advice today. It is, moreover, unethical in addition to dishonest for an attorney knowingly to abet, much less to assist, lying to the court.

Posted by: Bill Otis | Jul 12, 2012 2:20:22 PM

It would seem to me that if confronted by people who are liars themselves (i.e., your false accusers), your own lie to get out of their clutches is a worthy exception to the usual rule your parents taught you.

Posted by: Marc Shepherd | Jul 12, 2012 2:28:23 PM

In negotiating a plea agreement is the inclusion of additional charges at the beginning of the process a lie, or is it a lie when they are omitted for the plea? In absolute terms, can omitting facts be considered a lie? Is exagerating the facts a lie? Since I seldom see things in this way, I was just wondering.

Posted by: beth | Jul 12, 2012 2:59:48 PM

Marc --

The best way to confront a false accusation is with the truth, not by lining up with the falsehood.

Posted by: Bill Otis | Jul 12, 2012 3:05:27 PM

beth --

"In negotiating a plea agreement is the inclusion of additional charges at the beginning of the process a lie..."

It is if they're false, it's not if they're true.

"...or is it a lie when they are omitted for the plea?"

Prosecutors all the time decide not to press forward with charges, indeed with entire cases, they could prove. If the prosecutor makes known to the court that he's dropping the charges to save the taxpayers money, and not because the charges are false, there is absolutely nothing wrong with what he's doing (don't I hear here all the time that government officials need to save taxpayer money?)

If, on the other hand, the defendant tells the court that the charges are true, when they aren't, he's doing plenty wrong. He's not omitting; he's affirmatively lying. That is dishonest for starters, and leading the court into a miscarriage of justice.

It is a standard part of the plea taking procedure in federal court for the judge to ask the defendant, with his lawyer standing right there, "Are you pleading guilty because you are in fact quilty?" If the defendant says, "No, I'm not guilty, I'm just doing this for tactical reasons," the plea will not be accepted in any federal courtroom in this country.

"In absolute terms, can omitting facts be considered a lie?"

It depends on whether the judge knows what's getting omitted and the reasons for its omission. If, for example, the prosecutor agrees to drop one of the drug sales in order to get a deal, and tells the judge, "We have agreed to drop the sale alleged in Count 1 in order to save the tax money that would be invested in a trial, but if the plea is not accepted, we will absolutely go forward with Count 1 at trial," I see no dishonesty in that, and neither would any judge I ever heard of.

"Is exagerating the facts a lie?

Yes.

Posted by: Bill Otis | Jul 12, 2012 3:26:42 PM

But that's the point, isn't it Bill? At the time of the plea these defendants aren't trying to "confront a false accusation." They're trying to save their lives or avoid incarceration. They can tell the truth and gamble on an acquittal, with disastrous consequences if they lose. Or they can can gain at least some of the benefits of an acquittal without the risk. I don't fault them for telling a lie, any more than I fault people who made false religious conversions in the Middle Ages in order to save their lives.

Posted by: arfarf | Jul 12, 2012 3:30:25 PM

I must say, it's a surreal experience -- and one you could only get on a defense-oriented blog -- to be put on a stool in the corner for recommending that people tell the truth, and hailed as a shrewd fellow if you give the green light to lying.

Is anyone still wondering why criminal defense lawyers have the reputation they do?

Posted by: Bill Otis | Jul 12, 2012 3:31:07 PM

Beth,

If the prosecutor had a good faith basis for believing that the original charge could be proven beyond reasonable doubt I would never call that a lie. Any charge the prosecutor knows will fall apart when put to a test more stringent than probable cause is a lie if that charge is used as some sort of negotiating lever.

I have seen at least one case on this site where the proposed plea bore so little resemblance to what the defendant was admitting to that the negotiated down charges could be called nothing other than a lie (in that case the judge did in fact reject the plea for thatr very reason).

I would not call omitting charges that can be proven a lie so long as there remains enough similarity between the underlying conduct for that act and the pled to charges for the combination to match a criminal offense.

An example of what I mean, not that I have a case this extreme handy, but it illustrates what I mean. Say you there is an offense that could be proven to match premeditated murder, weeks of planning, stalking, a called off attempt and then the kill. All of this well documented. Yet say when plea time comes around for some reason the prosecutor were willing to offer a charge of involuntary manslaughter. In a case like that where the conduct and proposed plea simply do not match, I would call that charge a lie. In such a case the conduct that occurred simply does not meet the definition of the agreed to offense, for instance in my example involuntary manslaughter requires as an element a lack of intent, and that element is simply missing from the facts.

Posted by: Soronel Haetir | Jul 12, 2012 3:45:09 PM

This is the mentality with which CCDC and his ilk are afflicted in matters of this nature:

"Most defense lawyers and their investigators are hostile to any pre- and post-conviction claims of guilt. This has been described as a “they're-all-innocent-and-if-you-don't-think-so-you're-a-Nazi psychology,” which leads defense lawyers to resist claims of guilt in order to maintain their high standing in the NACDL (by not admitting that the system gets it right the great majority of the time), improve their own chances of promotion in the PD's office (by maintaining I-really-fleeced-that-young-prosecutor-in-the-plea-deal meme) and avoid conserving time (as they believe, or at least snarl indignantly if they don't actually believe, that defendants are innocent regardless of how persuasive the evidence of guilt is)."

Posted by: Bill Otis | Jul 12, 2012 3:46:24 PM

Bill, I am afraid you asked for the ribbing because you have previously denied that innocent people plead guilty. They obviously do. I know a few. And since you know that someone who committed a crime will be tempted to lie to reduce his punishment, I don't know how you can think that prosecutors who delay sentencing for a cooperating witness until he has testified against others is doing anything but encouraging the most favorable testimony possible, which, due to human nature, will veer into embellishment (if not outright lies) at times. When cooperating witnesses are asked on direct what will happen if they don't tell the truth, they say (somehow with a straight face) that they can be prosecuted for perjury. Please. Who's going to prosecute a cooperator who makes the government's case? Don't you think that the incentives encourage lying? It's a human system and it can't be perfect, but this is a problem that can be fixed.

Posted by: Thinkaboutit | Jul 12, 2012 3:53:13 PM

Bill, I don't think they are putting you on a stool and making you sit in the corner --- at least not with a dunce cap on your head. I think they are just saying that there are going to be plenty of rational people who will cave into the pressures of a heavy weight hanging over their head and say whatever is necessary to take the plea. On the other hand, many people will not do that and go to trial. But if the differences in penalty are extreme, I bet that weighing of consequences would rule the day for many people.
Also, is this really a defense-oriented blog? The owner even wants to execute drunk drivers. That does not seem too defense-oriented. On the other hand, I think he does have views that indicate some laws are too harsh.
Finally, if this was a true defense-oriented blog, just remember the next time you try to give an example of one bad person as a defendant and try to say all defendants are bad, someone would utilize the wise words of Donny Osmond and remind you that "One bad apple doesn't spoil a whole bunch of crooks." Now that would be a defense-oriented blog!!!
http://www.youtube.com/watch?v=0kp_DgPmnuY

Posted by: Tim Holloway | Jul 12, 2012 3:58:13 PM

Thinkaboutit and Tim Holloway --

What is going on today is an attempt to portray convictions obtained by guilty pleas as presumptively suspect, if not presumptively invalid, because of the veritable epidemic of people who tell judges with a straight face, under oath, and with their lawyer standing right there, that they committed some serious crime they actually had nothing to do with.

Both of you are smart and honest and experienced enough to know that such an enterprise is a fraud. Care to say so?

Posted by: Bill Otis | Jul 12, 2012 4:09:05 PM

Bill, where did this quote come from? I think defense lawyers know that many defendants are guilty. We also know that there can be innocent defendants and overcharging.

BILL STATED:

This is the mentality with which CCDC and his ilk are afflicted in matters of this nature:

"Most defense lawyers and their investigators are hostile to any pre- and post-conviction claims of guilt. This has been described as a “they're-all-innocent-and-if-you-don't-think-so-you're-a-Nazi psychology,” which leads defense lawyers to resist claims of guilt in order to maintain their high standing in the NACDL (by not admitting that the system gets it right the great majority of the time), improve their own chances of promotion in the PD's office (by maintaining I-really-fleeced-that-young-prosecutor-in-the-plea-deal meme) and avoid conserving time (as they believe, or at least snarl indignantly if they don't actually believe, that defendants are innocent regardless of how persuasive the evidence of guilt is)."

Posted by: Tim Holloway | Jul 12, 2012 4:09:12 PM

Tim Holloway --

1. It's a parody of CCDC's quotation at Calif. Capital Defense Counsel | Jul 12, 2012 11:40:05 AM.

2. Your suggestion that this is anything other than a defense-oriented blog made my day, but Doug might make you go sit in the corner.

Posted by: Bill Otis | Jul 12, 2012 4:17:05 PM

I don't think most people who are writing or commenting on this subject are claiming that convictions obtained by guilty pleas are presumptively suspect or presumptively invalid. I think most people who give a guilty plea have done what they admit. I think people are pointing out that there are pleas where people are stating things that they did not do, so that they can receive a much less severe penalty. I don't think anyone is saying it is an epidemic.

Thinkaboutit and Tim Holloway --

What is going on today is an attempt to portray convictions obtained by guilty pleas as presumptively suspect, if not presumptively invalid, because of the veritable epidemic of people who tell judges with a straight face, under oath, and with their lawyer standing right there, that they committed some serious crime they actually had nothing to do with.

Both of you are smart and honest and experienced enough to know that such an enterprise is a fraud. Care to say so?

Posted by: Tim Holloway | Jul 12, 2012 4:21:06 PM

Otis can't be for real. So first he claims that an innocent defendant who takes a plea deal doesn't exist, and then when he has to face the truth that it happens all the time, he reacts by attacking the innocent victim of the government for "lying" by playing along with a corrupt prosecutor and allowing that prosecutor to save face?

Notice something about Bill Otis' comments? In his world, the prosecutor is never wrong. He completely glosses over the fact that the prosecutor victimized an innocent citizen and devastated that citizen's life worse than all-but-the-worst criminals could have. When faced with overwhelming evidence of factual innocence, the prosecutor did not do the right thing and drop the case, instead the prosecutor did a dishonest, underhanded thing by purposely trying to induce an innocent citizen to plead guilty in order to mitigate the damage the prosecution was doing to his life.

In a perfect world, I agree that every defendant who is innocent should fight and never plead guilty. However, we have a deeply flawed system where the personality of your prosecutor matters far too much. There need to be more checks on prosecutorial discretion, and judges, not prosecutors, should have the most power in any case (they don't at present). Prosecutors are not inherently any better or worse than defendants. They are flawed human beings like anyone else, who unfortunately have too much power and too little accountability, which makes for far worse results.

Posted by: lawguy | Jul 12, 2012 4:43:17 PM

Bill Otis certainly knows the law that confessions are thrown out if the police create a situation where an innocent person believes they would benefit from giving a false confession, yet this is exactly what the prosecutors are doing in many of these cases: "Just lie and say you are guilty, and I'll let you out of jail and give you a written guarantee that you won't serve another day, or you can refuse and not only continue to rot, but also face the continuing stress and burden of fighting with me, with the bonus that there is a slight chance I could fool a jury into thinking you really did it."

Bill Otis sees the above fact pattern, and calls the defendant a dirty liar for caving in to such coercion. He doesn't utter one word about the prosecutor's overwhelming role. It is a bit like criticizing a woman for letting herself get raped without violently resisting after the rapist stuck a gun in her face.

Posted by: lawguy | Jul 12, 2012 4:56:56 PM

Tim Holloway --

"I don't think anyone is saying it is an epidemic."

Perhaps you should talk to the immediately following commenter, lawguy, who took a full 22 minutes to take a rather, er, different approach.

Posted by: Bill Otis | Jul 12, 2012 5:04:16 PM

Yeah, I think Bill is getting a few things wrong.

I don’t think anyone has said guilty pleas are presumptively suspect or invalid. The point is that they are sometimes invalid, we ought to be troubled when that happens, even if it is rare. Bill wouldn’t hesitate to be incensed if a guilty person gets away; he ought to be equally incensed if an innocent person was convicted.

I also think that Bill underestimates the power of prosecutors to coerce guilty pleas. Most of the time, this process produces correct results, but not always.

I will assume that Bill was an honorable prosecutor. Surely he does not believe that everyone in his profession is honorable, since there is no field where that’s true. And generally, when the prosecutor is dishonorable, the defendant is the victim. You would like to think that there are checks and balances to protect the public from the dishonorable prosecutor, but they aren’t perfect.

I do agree with Bill that this is primarily a defense-oriented site.

Posted by: Marc Shepherd | Jul 12, 2012 5:09:56 PM

lawguy --

In this instance, I don't begrudge you your anonymity, since, my man, you are certifiable.

Posted by: Bill Otis | Jul 12, 2012 5:10:34 PM

First of all, let’s clear away the rhetoric:

Bill, A plea of “guilty” is not a “lie” or “true.” It is a legal position. You know that. It is NEVER perjury to plead guilty or not guilty (and they are not under oath, anyway).

Also, Bill, I am sure that you have never been in jail, but there is immense pressure for people to get out of jail, and they will often do whatever to get out. (Some are even facing loss of their children just by being in pretrial detention). And, while I appreciate the fact that you ideologically belive that people should stand up for the truth (even if it means time in jail), many people don’t have the energy that you expect others to have (but you do not have, yourself).

Next Bill, very often in a crtiminal trial, the defense simply does not have access to fact that would really exonerate someone. In the simplest example, where the defenant might have an alibi, but no witnesses will attest to that, there is little that the defendant can do. In more complicated examples, the defendant might have no memory at all of the events. I do like your ideological approach to fighting falsehoods with truth, but in realality, evidence is a scarce commodity.

Finally Bill, in my jurisdiction, the defense bar has the good rep., and the prosecutors are viewed as carpetbagging hacks (they are not elected). This probably varies by region.

Second of all, a lot of these issues require a knowledge of legal legal practices.

Most defense lawyers know full well that they have participate in plea agreemens where the defendant was not guilty of that charge. Someitmes this works to the benefit of the client. Quite frankly, where the prosecutor works in a legal climate where he can delay a felony trial, the incentive to plead to a misdomenor is very high.

Likewise, since there is generally an ethical obligation to convey an offer to a client, a client can accept an offer knowing he will be released. Should his own lawyer try and sabotosh the deal?

In point of fact, I have often made records which go like this:

1.My client is intelligent, rational, and knows what he is doing (insert some of his circumstances here);

2.Any defense lawyer that is half-awake and sober would secure an acquittal in under ten minutes.

3.I do not personally believe my client to be guilty based upon the state’s lack of evidence, but then again, I wasn’t there.

Somehow no judge has ever rejected such a deal, even after ten mintues of such record-making.

Judges generally don’t like to get involved in rejecting plea agreements on the grounds of “actual innocence.” Occasionally deals are rejected as being “too lienient” (as opposed to illegal). Ironically, in most places lawyers know that they can then judge shop and submit virtually the same deal within 24 hours and there is nothing that the judge can do about it.

Finally, in the federal system and in all states that I know of (but I might be wrong), a judge can’t second-guess a dismissal or reduction of charges (though some reductions might not be supported by PC).

Posted by: S.cotus | Jul 12, 2012 6:43:13 PM

Thinkaboutit and Marc --

It is true (or I'm willing to assume it's true) that I said innocent people do not plead guilty to serious crimes they didn't commit. I base that on 18 years in the USAO. What actually happens is that guilty people plead innocent to crimes they full well know they committed, but hope to jack the system around enough to get a windfall deal or, even, an acquittal (e.g., Casey Anthony).

I made that statement in the same way in which I will state right now that heavy metal objects do not fall out of the sky and kill people.

Now there may come the day when an academic will publish a study showing that there were 23 (or what have you) documented instances in which people were killed by loose cargo or airplane parts or disintegrating satellites or something or other that fell from the sky, and on that day, anyone who cares to can say HA HA, Bill Otis got it wrong!

You don't have to be in a USAO to know that what really goes on in life is that people cover up bad stuff they really did, rather than proclaim they did bad stuff they really didn't do.

What's going on today is just what I said: A few anomalous instances are being blown into a full scale attack on the reliability of the entire system. The system of course is not fully reliable (no system is), but it's better than this amazingly skewed attack lets on.

I did lots of cases over many years, so my career is reasonably representative. If there is a single case of mine in which I convicted a factually innocent (i.e., didn't do it) defendant, I welcome anyone here to post it.

Posted by: Bill Otis | Jul 12, 2012 6:56:06 PM

Another issue: people pleading guilty w/o lawyers at arraignments (allowed some places in misdos). They don't even know what the crime is, and usually they have no idea what a defense is. I don't have much sympathy for them, because they should know enough to ask for a lawyer.

Posted by: S.cotus | Jul 12, 2012 7:03:34 PM

In the article in the original post all the crimes were violent crimes where the person either did or did not "do it". In white collar crimes like the ones I was charged with, the decision to plead is much more nuanced. In white collar crimes there is usually some undisputed connection to the crime. In my case, the money laundering I was charged with (which can result in a very high sentence) turned on whether or not I knew I was dealing with criminal proceeds (18 USC 1956) because I absolutely Did do the financial transactions listed on the indictment.
The prosecutor seemed to believe he could get a jury to convict me just because I (innocently) used a number of bank accounts. I had two different defense attorneys Beg him to drop the charges against me--but I believe the prosecutor had too much incentive (outside of justice) to do so--I absolutely believe he was using me as a TOOL to get my spouse to plead (which I find abhorrent) and there was a very large financial incentive through forfeiture to convict me. The closest he came to a plea bargain was: plead, testify against spouse, and give up all rights to seized assets.
I will say that at times during my three+ years battle with the Government that there were times I was So tired. I was tired of reading Nasty Government motions and press releases saying what a horrible person I was. I was tired of coming into court and hearing lies come out of the prosecutors mouth. The financial toll to fight was draining--the sleepless nights of not knowing how it was going to end were exhausting. Yes, most of the time I was in fight mode, but there were also times like when you go to the edge of a balcony and think what it would be like to go over. You just want it to stop. People pleading guilty when they are innocent just allows some finality in their lives.
I don't think I am alone in this thought process. If you are being told to fight is hopeless--and here's what we're offering--you might just take it.
Only someone who has been on the receiving end of this can understand the unrelenting pressure.

Posted by: folly | Jul 12, 2012 8:02:47 PM


It’s a good idea to tell the truth in court , but bad things do not always happen ; especially if one is a prosecutor .

A then assistant PA was found to have lied in court , yet she received a free ride in the disciplinary system .

I’ll try to get some detail for Mr. Otis , et al.

BTW , off topic , but it would be kind were folks to refrain from referring to Mr. Otis as “ ilk ” ; and were Mr. Otis to refrain from referring to others as “ ilk ” ‼

Docile Jim Brady ♦ Columbus OH
Associate Member OACDL*
▼Love – Undecided – Hate mail▼
Docile_Jim_Brady@Safe-mail.net

* Opining & typing for myself ONLY and NOT the Ohio Association of Criminal Defense Lawyers

Nemo Me Impune Lacessit
○ ▬ ○ ▬ ○ ▬ ○ ▬ ○ ▬ ○

“ … ”

“ Don't lie in court.

“ If you do, expect bad things to happen.

“ … ”


Bill Otis ♣ 12 Jul 12 10:55:02 EDT

Posted by:  They call me ▬►Mister Blank◄▬ | Jul 12, 2012 8:28:45 PM

Bill Otis is a douche.

Posted by: Vince Wright | Jul 12, 2012 8:35:39 PM

Wow, this thread has a lot of people feeding a troll. I will attempt to make it productive.

Probably the most common instance of someone pleading guilty to a crime they did not commit is the person arrested for a misdemeanor facing a bail of a couple hundred dollars or some other modest amount they cannot post. The arraignment prosecutor offers the person a time served sentence if they plead. If they do not plead they will have to sit in jail for a couple months until trial, lose their job and their apartment, then have all the stuff in their apartment seized or abandoned by their landlord. How do we keep the innocent person in that situation from pleading guilty, when any rational person would plead?

And I do not blame the prosecutor here. The arraignment prosecutor almost certainly knows nothing about the case beyond the charge and the defendant's record. They do not know nearly enough about the case to judge if the defendant is guilty and do not have the time to do anything except assume the charge is valid.

Posted by: Paul | Jul 12, 2012 9:32:24 PM

Paul, Indeed, I think that situation does more harm to the US than the "big ticket" felony pleas. These people are essentially pressured into pleading guilty to a crime they don't understand, and very often don't understand the collateral consequences.

Posted by: S.cotus | Jul 12, 2012 11:39:07 PM

Docile Jim Brady --

"BTW , off topic , but it would be kind were folks to refrain from referring to Mr. Otis as “ ilk ”

How about "douche," as Vince Wright says seven minutes after your comment?

Posted by: Bill Otis | Jul 13, 2012 12:48:59 AM

Paul --

How and why are you so sure that the guilty-pleading defendant is innocent of the misdemeanor?

Posted by: Bill Otis | Jul 13, 2012 12:51:06 AM

Honesty is usually the best policy, but it's not the only correct policy. Otherwise, we would have to start prosecuting police officers for, say, pretending to be children seducing perverts online. Or for setting up sting operations to catch drug dealers. Or for lying to defendants about how much evidence they have to get a defendant to plead guilty. But we don't suppress or punish those lies; in fact, they are rewarded and praised as good police work. So I don't see any moral dilemma in an innocent defendant pleading guilty to avoid a harsher penalty.

Posted by: C.E. | Jul 13, 2012 1:16:06 AM

Look at the facts of the West Memphis Three (WM3) case. They are summarized in Professor Blume's article.

There can be no dispute that the WM3 are factually innocent. They spent decades in prison for a horrific crime that was committed by another person. As the case unraveled, Arkansas prosecutors did not pursue justice. Instead they endeavored to shield the government from liability: They did so by dangling in front of the WM3 an offer --- enter an Alford plea, and you will be released. So, those Arkansas prosecutors insisted that the WM3 "lie" in exchange for their freedom. (With their Alford plea, the WM3 admitted or did not contest their technical "guilt", while maintaining their innocence.)

The Alford plea entered by the WM3 presumably will shield Arkansas from liability for wrongfully imprisoning the WM3 for decades.

Why didn't the Arkansas prosecutors step up and do the right thing, rather than trying to cover Arkansas' ass? Why didn't the Arkansas prosecutors apologize to the WM3, express contrition for the wrongful deprivation of decades of their liberty, and simply let them go?

Does anybody defend what the Arkansas prosecutors did in the WM3 case?

Posted by: Calif. Capital Defense Counsel | Jul 13, 2012 1:51:56 AM

How about "douche," … seven minutes after your comment?
By Bill Otis ♦ 13 Jul 2012 Fri 00:48:59 EDT

It reflects on the writer rather than the target.

I would like to believe that you and I could disagree w/o name calling .

DJB, ARR/AWD , Columbus OH
Nemo Me Impune Lacessit

docile_jim_brady@Safe-mail.net

Posted by:  They call me ▬►Mister Blank◄▬ | Jul 13, 2012 5:22:13 AM

Yes, the name calling is coming from both sides of the fence. Bill, you stated the other day how good it was not to have that happen and to actually discuss the issues. In relation to the posts in this thread, I am referencing your statement that someone was "certifiable." It just throws more gas on the fire to do that. Someone calling you a "douche" did the same thing.

Posted by: Tim Holloway | Jul 13, 2012 9:50:46 AM

Mister Blank --

"It reflects on the writer rather than the target."

Nailed it.

"I would like to believe that you and I could disagree w/o name calling."

You and I can, and do. Ditto with any number of more-or-less-pro-defense commenters here -- Thinkaboutit, Tim Holloway, Mark R. Levine, rodsmith, beth, arfarf, and C.E. Also and especially Marc Shepherd, who is not necessarily pro-defense, and who has never, as far as I know, taken an ad hominem shot at me or anyone.

When so many exhibit normal adult manners, it's very unfortunate that Vince Wright and CCDC, and others here and there, spoil the thread with stuff like "douche." I have no idea why they think that language that would get you detention in sixth grade is appropriate in a forum about important legal questions.

Posted by: Bill Otis | Jul 13, 2012 10:00:53 AM

C.E. --

"Honesty is usually the best policy, but it's not the only correct policy."

It is most assuredly the only correct policy when you are speaking to a judge under oath.

"Otherwise, we would have to start prosecuting police officers for, say, pretending to be children seducing perverts online."

We can only prosecute people, policmen or anyone else, for stuff that's illegal.

Question: What case says it's illegal for police to participate in a pervert sting? Answer: None. (The cops can shoot people, too, in circumstances when a regular citizen couldn't).

Do you think it would have been illegal for the cops to give one of Sandusky's boys a hidden recorder to get his own words about what he was doing, even though such a tactic involves a police-engineered deception that Sandusky was speaking, as usual with these kids, in private?

"Or for setting up sting operations to catch drug dealers."

Same question, same answer.

"So I don't see any moral dilemma in an innocent defendant pleading guilty to avoid a harsher penalty."

Do you see any problem in a defendant who views himself as less culpable than the indictment protrays, goes to trial, and lies about his behavior on the witness stand "to avoid a harsher penalty?"

Posted by: Bill Otis | Jul 13, 2012 10:31:32 AM

Tim Holloway --

First, that commenter's utterly over-the-top rant did indeed suggest certifiability, and second, "certifiable" is hardly in the same league as "douche."

Sorry, there is no equivalence here. The stuff the Left uses is vastly more frequent and disgusting than what its opponents put up.

Posted by: Bill Otis | Jul 13, 2012 10:40:28 AM

Wow, "suggest certifiablity?" You are speaking about Lawguy's comments at 4:43 and 4:56? Bill, you are making yourself a lightning rod for the type of responses that you condemn.

Posted by: Tim Holloway | Jul 13, 2012 10:58:54 AM

Tim Holloway --

"Bill, you are making yourself a lightning rod for the type of responses that you condemn."

So your position is that calling someone a "douche" on account of his alleged "lightning rod" status is OK?

The reason for the numerous, bodily-function (and worse, like "Nazi") attacks on me (and Kent, among others) is simply that we have the audacity to take conservative positions in the face on the aggressive pro-defendant stance of most of the commenters. Indeed, Vince Wright said point-blank that the reason I should not be treated with respect is that I support keeping dangerous drugs illegal and keeping the death penalty. Thus he feels free to launch "douche." It won't be his first and, with that attitude, it won't be his last. CCDC is in the same league. These people simply do not believe in the legitimacy of opposing points of view. That's fine for Joe McCarthy, but it is not fine for a debate among adults, and there is no reason that you should indulge it or I should put up with it.

Posted by: Bill Otis | Jul 13, 2012 11:32:40 AM

But Bill Otis is a douche. It's not name calling to say that. It's just stating the facts.

Posted by: Vince Wright | Jul 13, 2012 11:35:05 AM

Bill, you stated: "So your position is that calling someone a "douche" on account of his alleged "lightning rod" status is OK?"

No, I think it should all stop, including comments like someone is "certifiable," especially given that the comments by Lawguy were not anything close to indicating he is "certifiable."

You also stated: "Indeed, Vince Wright said point-blank that the reason I should not be treated with respect is that I support keeping dangerous drugs illegal and keeping the death penalty."

At some point in my life, I thought they should legalize all drugs with no penalties, civil or criminal, whatsoever. I no longer think that and belief opposing viewpoints, along with having a clearer understanding of how bad some of this stuff is, changed that opinion. I present this only as an example that reasoned and informed discussion can be very valuable --- which obviously means I don't think that type of discussion deserves disrespect. However, I doubt that I will ever agree with you on the death penalty. Even if you agree with the proposition that it is okay for government to be involved with the taking of a life, there is far too much sloppy work and/or evidence in courts to belief that mistakes won't be made with these cases. Also, aside from the sloppy work where one cannot point to a single actor or actors as being at fault, there are just too many variables (like witnesses who lie) to allow it.
You also stated: "there is no reason that you should indulge it or I should put up with it." I don't think it is a fair comment to say that I "indulge it" based solely on the fact that I indicated you are attracting it by doing the same thing --- or something very similar to it, by saying someone is "certifiable."

Posted by: Tim Holloway | Jul 13, 2012 12:51:33 PM

Tim --

I'm not seeking your substantive agreement on those two issues. I'm less ambitious. I seek only your agreement that, for example, Vince Wright's most recent (and wonderfully timed) repeat "contribution" ought not be injected into this or any discussion among serious adults, and that there is no reason I should put up with it.

Posted by: Bill Otis | Jul 13, 2012 1:07:38 PM

Bill --- I was only giving my view on the drug issue to illustrate that the discussion in question does have value --- or at least similar discussion had value in relation to my viewpoint on the issue. I agree that the above comments from Vince Wright should not have been injected into the discussion. Your statements that this spoils the thread or lines of posts are correct. It seems like if any given person thinks there is an idea that is worthy or unworthy, that person should let the idea be aired if that person wants to convince other persons of the strength of that person's viewpoint. Name calling does not do that. At least I think that is true with mature people.

Posted by: Tim Holloway | Jul 13, 2012 1:48:03 PM

Tim Holloway --

Thank you, sir.

Posted by: Bill Otis | Jul 13, 2012 3:53:39 PM

I concede that, technically, telling a judge you are guilty when you are actually innocent, is a crime, although I eagerly await the instance when someone gets prosecuted for perjury for pleading guilty to a crime he did not commit. I'll be especially interested in seeing the government explain to the court that it accused the defendant of a crime, that its investigators were willing to present evidence of the defendant's guilt, that it took the case to the grand jury and got an indictment, but the defendant thwarted justice by agreeing with the government's position.

I will also concede that it is not usually a crime for police officers to lie about who they are or what they are doing or what their intent is, if the goal is to make an arrest. In fact, in many cases I don't even have a problem with their lies, although I have problems with the policy behind some of their lies.

Still, my comment was addressing the notion that lying is always "wrong," whether or not it's legal. Clearly, lying is sometimes the right thing to do, and that can apply to big lies and small lies. And I see no moral fault in an innocent defendant claiming to be guilty of one crime in order to escape a far more harsh penalty for another crime that he did not commit, even if it's technically a violation of the law. No lawyer could ever assure a client that juries always make the right decision, that sentences are always fair, and that the truth will out.

Of course, I would never knowingly advise a client to plead guilty to a crime he says he did not commit; for one thing, she would never make it through the plea colloquy. But my clients claim innocence all the time and then later admit that they really are guilty. It's a normal part of the process of working through the case. If they suddenly recant their earlier claim of innocence, I'm not going to fight with them and insist they go to trial, though I might explain whether I think they have a good chance at trial--but it's their decision, not mine.

Posted by: C.E. | Jul 14, 2012 1:23:40 AM

C.E. --

Thank you for your response.

I would be interested in your answer to the last question I asked, to wit, do you see any problem in a defendant who views himself as less culpable than the indictment protrays, goes to trial, and lies about his behavior on the witness stand "to avoid a harsher penalty?"

The answer you and others have given on this thread is generally, "Lying is a bad thing, but..." What follows the "but" is an explanation that lying is sometimes "needed" to assure a better outcome than the defendant might get at trial.

The reason I asked the question noted above is to illustrate what a slippery slope that sort of thinking creates.

People generally don't lie except when they think they can get something by doing it. The whole prohibition on lying your parents teach you is that you can't lie EVEN IF YOU CAN IMPROVE YOUR POSITION IF YOU DO. Indeed, the only time the prohibition against lying has any operative value is when the speaker is facing temptation.

It thus seems to me that it is no answer to say that the defendant "has to" lie in order to get something he really wants (the assurance of a light sentence). To adopt that view is to negate the whole purpose of the moral requirement to be truthful. It is, in other words, the exception that swallows the rule.

My question illustrates this. Once we approve the defendant's lying in order to save himself from the possibility of a disastrous outcome at trial -- namely that he'll be convicted of a greater offense even though "innocent" -- we have opened a door through which every lie out there will enter.

As you point out, many, many clients will at least SAY they're innocent; or (even more frequently) that they might technically have done it, but it was just an abberant, one-shot thing; or the system is over-reacting, or, between one thing and another, the whole thing is unfair and excessive.

This sort of self-justification is morally and psychologically indistinguishable from the rationale' you put forth as the heart of your answer. Once the defendant thinks lying is OK "to avoid a harsher penalty" than the one HE THINKS he deserves, any limit on perjury has just vanished.

A system that cares about just outcomes could not survive such a result. This is wonderfully illustrated by the very episode that started this thread: A conviction brought about by a perjurious guilty plea.

A system that demands the truth and permits no exceptions will not be infallible, as no human institution is infallible. But over the long haul, it will do a better job of providing justice -- indeed a vastly better job -- than a system that is willing to give a wink-and-a-nod to lying, first in the most wrenching cases, but, once the dam is breached, sooner or later in everything.

Posted by: Bill Otis | Jul 14, 2012 9:18:26 AM

hmm

"My question illustrates this. Once we approve the defendant's lying in order to save himself from the possibility of a disastrous outcome at trial -- namely that he'll be convicted of a greater offense even though "innocent" -- we have opened a door through which every lie out there will enter."

hate to break it to you bill but our own govt opened that door DECADES ago! Hell you could say they took a 130mm howitzer to it BLEW IT and the whole front of the house open!

So just why shouldn't it's citizens follow it's example!

After all our govt has said for decades it's ok for it's agents, to LIE, CHEAT, STEAL, commit fraud and perjury and out and out TREASON if that's what it takes to WIN!

Posted by: rodsmith | Jul 14, 2012 10:14:55 AM

Beyond the question of whether it is morally, legally or ethically proper to lie when giving a factual basis for a guilty plea, what do you do when: (a) you know that the defendant was absolutely innocent of all charges against him or her; (b) the defendant pleaded guilty; and (c) the defendant lied when giving the factual basis for the plea (by saying he did it) in order to receive a drastically reduced penalty? Do you say, tough you lied, you are stuck with it?
With regard to some of the incentives one can face, the client I mentioned in an earlier thread who pleaded NO CONTEST, took a plea to accessory after the fact and wound up with about a two year minimum (at which he would be subject to parole) and a five year maximum (release required even if never paroled). I think the minimum may have been part of the plea agreement. The maximum was all that was available and had to be imposed by law if an indeterminate sentence was imposed. He was paroled after about 2 years. If I recall correctly, the original charge was 1st degree murder with mandatory LWOP. Two other defendants had previously been convicted of 2nd degree murder in the matter and received very heavy sentences. Pretty big incentive, yes? On the other hand, he did not lie during the factual basis in order to accept the plea.

Posted by: Tim Holloway | Jul 14, 2012 12:00:18 PM

Undoubtedly, Bill has no problems with cops and snitches lying to suspects during criminal investigations.

Undoubtedly, Bill has no problem with the dishonesty of the Arkansas prosecutors in the West Memphis Three case.

So Bill, give the sanctimony a rest. Reflect on how many of your prosecutions were built on government lies.

Posted by: Calif. Capital Defense Counsel | Jul 14, 2012 12:02:53 PM

CCDC --

"So Bill, give the sanctimony a rest."

Only in your world of carrying water for killers is support for truth-telling considered "sanctimonious."

"Reflect on how many of your prosecutions were built on government lies."

None. Since, unlike you, I use my real name here, you are free to, and able to, check for yourself. My cases are reported all over the place. Happy hunting!

In the meantime, reflect on how much you enjoy your clients' behavior, and why you enjoy it. Not for nothing are you so devoted to them.

Posted by: Bill Otis | Jul 14, 2012 12:51:40 PM

Tim Holloway --

"Beyond the question of whether it is morally, legally or ethically proper to lie when giving a factual basis for a guilty plea..."

I respectfully decline to "get beyond" that question, since it is absolutely central to the integrity of our courts. It's like saying, "Beyond the question of whether anyone brought a baseball, it's time to play some baseball."

"...what do you do when: (a) you know that the defendant was absolutely innocent of all charges against him..."

Plead not guilty and go to trial. If he is "absolutely innocent" of all the charges, there is no realistic prospect that the government will be able to prove, beyond a reasonable doubt and to the satisfaction of each of 12 independent minds, that he actually did it.

And no (to anticipate your response), nothing is foolproof. That is part of life, and if that unfortunate fact is accepted as a basis for the approval of lying, then lying will spread way beyond difficult and sympathetic cases and will become endemic, as I explained in this morning's comment to C.E.

"...(b) the defendant pleaded guilty; and (c) the defendant lied when giving the factual basis for the plea (by saying he did it) in order to receive a drastically reduced penalty? Do you say, tough you lied, you are stuck with it?"

I would never get there, because if I were a defense lawyer, I would make clear at the time the client signed the representation agreement that I would not lie or facilitate lying to the court under any circumstances, because that is not how I live. If that is not what he's looking for, thank you for your time, and best of luck in choosing another lawyer.

A plea of no contest is an altogether different matter, because it does not involve lying to the court, and it does not implicate me as the lawyer in that lying. To admit that the government has enough evidence to support a conviction, if true, is a different kettle of fish.

Posted by: Bill Otis | Jul 14, 2012 1:19:22 PM

Dodge, dance, avoid.

Typical Bill.

Police are allowed to lie to suspects. Even the Supreme Court has allowed it. E.g., Frazier v. Cupp, 394 U.S. 731 (1969).

That's ok with Bill. Because, in his distorted view, the government is good. It's ok if, in the name of crime-fighting, the government lies to its citizens.

Bill was a drug prosecutor. Any attorney who has handled a handful of drug prosecutions knows that the investigating cops lie over and over again to build those cases. Hell, the mere use of an undercover informant is a lie. Does Bill understand this? Or, is he just too much of a government man to acknowledge that many of his prosecutions were built on lies upon lies.

Will Bill directly address the fact that cops, snitches, and informants lie as a matter of course? (Does Bill honestly believe that his officers testified truthfully, rather than testi-lying, at every one of his evidentiary hearings on motions to suppress based on Fourth Amendment violations?)

Will Bill address the dishonesty of the Arkansas prosecutors in the WM3 case?

Or, will Bill keep his head lodged deeply in he sand? Or, is he just blinded by his wacky belief that government prosecutors are the good guys?

Posted by: Calif. Capital Defense Counsel | Jul 14, 2012 1:32:13 PM

Bill stated: "Plead not guilty and go to trial. If he is "absolutely innocent" of all the charges, there is no realistic prospect that the government will be able to prove, beyond a reasonable doubt and to the satisfaction of each of 12 independent minds, that he actually did it."

It is pretty obvious that many people will disagree with the idea that "there is no realistic probability" that the government can obtain a guilty verdict if a person is "absolutely innocent." I bet there are even a good number of prosecutor who would agree. It is not a science project involving a piece of litmus paper. Convictions are often based on the testimony of witness and no scientific evidence whatsoever (and what passes as forensic evidence has in the past been obviously false or completely unreliable --- but a jury will often believe it if it cannot or is not properly be challenged). It is not uncommon for there to only be one witness that inculpates the defendant. If the jury believes that witness, that is enough to sustain the conviction under the insufficiency of the evidence case law (re: Jackson v. Virginia). Certainly you do not believe that juries can always properly tell if that one single witness is lying or is otherwise not testifying accurately?

BILL ALSO STATED:

"...(b) the defendant pleaded guilty; and (c) the defendant lied when giving the factual basis for the plea (by saying he did it) in order to receive a drastically reduced penalty? Do you say, tough you lied, you are stuck with it?"

BILL FURTHER STATED: I would never get there, because if I were a defense lawyer, I would make clear at the time the client signed the representation agreement that I would not lie or facilitate lying to the court under any circumstances, because that is not how I live. If that is not what he's looking for, thank you for your time, and best of luck in choosing another lawyer.

MY TEXT:

The lawyer does not necessarily know a false factual basis occurs at the time of the plea. In fact, I would bet that they usually don't know this. My question was not how does a defense lawyer prevent it. My question was what should the system do if all of the premises in my previous post are correct and a conviction has been entered after a plea by innocent defendant who gave a false factual basis. Should the system require the conviction to stand or should the system vacate it? Bill, I think you indicated you were not directly going to answer the question (re: your response to "Beyond the question of whether it is morally, legally or ethically proper to lie when giving a factual basis for a guilty plea..."). However, it seems like you are implying or suggesting that conviction should stand?

Also note that my post was not specifically aimed at Bill and was intended to prompt discussion from anyone who wished to respond (including Bill).

Posted by: Tim Holloway | Jul 14, 2012 2:23:43 PM

CCDC --

"Dodge, dance, avoid. Typical Bill."

Actually, I am far more responsive to questions than you even attempt to be. I also give my name so people can check my record. You remain anonymous so they can't check yours. Then you give me this horse manure about how I'M THE ONE who likes to "dodge, dance, avoid." Are you trying to give hypocrisy a bad name?

"Police are allowed to lie to suspects. Even the Supreme Court has allowed it. E.g., Frazier v. Cupp, 394 U.S. 731 (1969). That's ok with Bill."

Uh, CCDC, it was OK with Thurgood Marshall, who wrote the opinion. It was also OK with William Brennan, who joined the opinion. It was also OK with Chief Justice Warren and with none other than William O. Douglas, who concurred without taking exception to a single word the Court wrote.

And I'm supposed to be embarrassed because I'm so "conservative" as to line up with THAT group??? Far out!!!

CCDC, your "analysis" would be more persuasive if you just signed up with your ally Vince Wright and let it go with the observation that I'm a "douche."

BTW, do you concur with that?

Posted by: Bill Otis | Jul 14, 2012 3:50:46 PM

well bill i hope you dont' line up with them. i'd miss you! becasue personally if i had the chance i'd happly go back and put a bullet throught the empty heads of EACH and EVERY ONE of them!

LIEING is WRONG! PERIOD!

just like

BREAKING the LAW is wrong! NO MATTER WHO IS DOING IT!

sorry being a govt agent does not get a pass from me. IN FACT it makes it worse!

Posted by: rodsmith | Jul 14, 2012 11:33:07 PM

Notice how Bill doesn't address 1) whether confidential informants were used in his cases, the use of which necessarily entails lying, and 2) whether he supports the conduct of the Arkansas prosecutors in the WM3 case.

Uh, Bill, is lying OK with you when the Supreme Court says it's OK? Weren't you preaching to us all that lying is never OK?

And Bill, are you so naive that you can't understand why a practicing attorney, who has to deal with the government and its attorneys on a daily basis, can't relinquish anonymity when constantly criticizing the government. Among other things, it would not be in the interest of my clients. The government cannot be trusted. It would retaliate against my clients.

Posted by: Calif. Capital Defense Counsel | Jul 15, 2012 2:49:57 PM

CCDC --

You're rude as a matter of deportment and extreme as a matter of ideology. If you want to get answers from me, change the former. I'm going to spend my time talking to sensible people who act like adults. If you don't wish to be among them, fine with me, but I have better things to do. (Also, if you want to know what went on in my cases, look them up. It's easy to do, and I'm not your research assistant).

Incidentally, I see you take no exception to my being called a "douche." So while you give a wind-and-a-nod to "manners" a person wouldn't find in a barnyard, you sit on your high horse and demand answers.

Is that how you think it works?

If you want to be relevant, change your extremism. Do you even hear yourself? To criticize as too pro-prosecution an opinion unanimously agreed to by the most liberal Supreme Court in history is all the demonstration needed of how far out of the mainstream you are.

Finally, nice try attempting to hide behind your clients in order to excuse your cowardice. There are any number of practicing defense attorneys critical of the govenment who use their real names here. But, oddly, you just can't. I guess they must be dealing with a different government from the one you claim -- implausibly and giving not a single example or any evidence -- would "retaliate" against your clients.

The real reason you won't give your name is that, albeit understandably, you don't wish to be associated with what you say. Fancy that.

Posted by: Bill Otis | Jul 15, 2012 4:29:13 PM

An equally valid argument can be made that "false" plea bargains are the results of an overly lenient sentencing scheme.

Posted by: Hornets Snapback | Sep 11, 2012 8:14:44 PM

How about a guilty plea by coercion? For example, the accused sits in the county jail for a year, knowing he may sit there for another year if he takes his case to trial; he is offered a plea that gets him out of jail that day...he takes it.

In addition, corrupt police forces and prosecutors' offices throw the book at certain defendants, charging them with multiple offenses for the same occurrence or completely overcharging them so the defendant is facing and outrageously long sentence. The defendants' attorney negotiates a plea based on the overcharges and coerces his client to take the plea, because juries are wild cards and you never know what they may do.

Until you are in this type of situation, saying what you would do means nothing to me.

Posted by: Don | Jan 4, 2013 2:45:07 PM

Bill Otis's comments are aburd.
He would rather be fried in the electric chair for a crime he didn't commit, rather than take an Alford Plea? An Alford Plea is a real crock anyway-- you're mainting you are innocent while pleading guilty. The ONLY purpose of this plea is to save the prosecutors and state from being sued for wrongful imprisonment after the State cannot prove their case beyond a reasonable doubt.
The Alford Plea should be abolished, but, unfortunately, people such as Damien Echols would have been put to death for a crime he did not commit if it weren't for the option to plea in this way.

There HAS to be a better way, a more humane option than the Alford Plea for the wrongly accused. To be forced to plead guilty, while being able to verbally maintain one's innocence is a farce. Innocent people should NOT have to plead guilty in order to get the justice they deserve!

Posted by: Bhakti | Mar 8, 2013 8:14:13 PM

I just want to know it she will get a fine also since she lied and pleaded not guilty when we both hit each other. Now we have to go to trial and someone told me they would drop her charges and I thing that's unfair since we both hit each other.

Posted by: Shelia Morales | Sep 28, 2014 1:12:59 AM

I tried to get an answer from her but don't understand what to put in the URL SPACE, so I WILL JUST CALL A LAWYER TOMOMORROW, I DONT UNDETSTAND COMPUTERS.

Posted by: Shelia Morales | Sep 28, 2014 1:17:09 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB