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January 14, 2018

"How to make an innocent client plead guilty"

The title of this post is the headline of this depressing and depressingly familiar tale told by public defender Jeffrey D. Stein in The Washington Post.  Here is an excerpt:

The conversation almost always begins in jail.  Sitting with your client in the visitation room, you start preparing them for the most important decision the person has ever made.  Though the case is just a few days old, the prosecution has already extended a plea offer that will expire within the week.  And, because local laws might require detention for certain charges at the prosecutor’s request, or because criminal justice systems punish those unable to pay bail, your client will have to make that decision while sitting in a cage.

Your client is desperate, stripped of freedom and isolated from family.  Such circumstances make those accused of crimes more likely to claim responsibility, even for crimes they did not commit.  A 2016 paper analyzing more than 420,000 cases determined that those who gained pretrial release were 15.6 percentage points less likely to be found guilty.  Not surprisingly, prosecutors commonly condition plea offers on postponing hearings where defendants may challenge their arrests and request release....

You lay out options for your client.  You could go to trial, but that might mean waiting in jail for months, if not years, before a jury hears the case.  The idealist in you — the one who enrolled in law school to “change the system” and to fight for justice on behalf of those who need it most — hopes your client will proclaim a decision to go to trial.  But a wary voice in the back of your head reminds you of the risk and life-altering consequences of losing....

The other option, you explain to your client, is to accept the plea offer.  In some cases, the sentencing difference between accepting a plea and losing at trial can be a matter of decades.  It’s no wonder 95 percent of all defendants accept plea offers.  Or that, according to the National Registry of Exonerations, 15 percent of all exonerees — people convicted of crimes later proved to be innocent — originally pleaded guilty.  That share rises to 49 percent for people exonerated of manslaughter and 66 percent for those exonerated of drug crimes.

You tell your client that they would probably win at trial, but if they lose, they will go to prison. The plea promises some meaningful benefit: getting out of jail sooner, avoiding deportation, not losing a job, seeing a daughter before her next birthday.  But your client would have to accept responsibility for a crime they may not have committed....

The judge turns to you and asks, “Does either counsel know of any reason that I should not accept the defendant’s guilty plea?” You hesitate.  You want to shout: “Yes, your honor! This plea is the product of an extortive system of devastating mandatory minimums and lopsided access to evidence.  My client faced an impossible choice and is just trying to avoid losing his life to prison.”

But you stand by your client’s decision, which was made based on experiences and emotions only they can know.  You reply: “No, your honor.”  The marshals lead your shackled client to a cage behind the courtroom.  And the judge moves on to the next case.

January 14, 2018 at 10:30 PM | Permalink


This is prosecutorial lawyer malpractice. Not only is that, it malpractice per se, since it violates dozens of statutory and common law duties of prosecutors to defendants.

Ending all tort immunities of prosecutors will be good for them. If tort liability is a substitute for violence, then violence against prosecutors has full justification in formal logic. Formal logic has more certainty than the laws of physics.

I would also support ending the tort immunity of the subhuman tyrants on the bench. Ultimately, they must be held fully accountable for the above described crime against humanity. Arrest them, try them, execute them. None would be innocent.

Posted by: David Behar | Jan 15, 2018 12:33:41 AM

I am tired of reading these stories of handwringing that do not reflect reality. For example given "the case is just a few days old" how could he possibly know his client is innocent or even might be?

While the spread between a sentence after trial and a guilty plea can sometimes amount to decades, how frequent is that? The author does not say and the idea that the alleged large spread is the reason that 95% of cases are disposed of by way of a guilty plea is totally unsupported. Anyway, is this public defender advocating for no more plea-bargaining? Somehow I doubt that.

This is just more one-sided griping about the state of criminal justice in this country. It doesn't happen to reflect reality in the vast majority of cases. It certainly is true that defendants accept offers while in custody. It certainly is true that defendants accept offers prior to receiving discovery. What this public defender is complaining about is that he doesn't get the discount for early resolution if his client decides to fight. Seems to me that the solution to this problem is no more plea bargaining. I can only imagine the op-eds that would follow.

Posted by: David | Jan 15, 2018 5:55:41 PM

➡️David B. re meaninful sanctions to prosecutors

For the worst of the worst , use a Tinville Sanction - ☠️beheading☠️•
Harsh , but it would work , and perhaps motivate other prosecutors to act ethically😳‼️

➡️David ? re eliminate plea bargaining
There are not enough courts , courtrooms , Judges , prosecutors , criminal defense attorneys , etc. to handle the potential gridlock and complete collapse of the criminal system , were plea bargaining elimininated •

Respectfully , DJB ,
Nemo ☠️ Me ☠️ Impune ☠️ Lacessit

Posted by: Docile the Wimpy Terrorist In OR | Jan 15, 2018 7:02:46 PM

I would argue, if we're eliminating plea bargaining, we should eliminate guilty pleas in their entirety. It's not fair to defendants to run the risk of some kind of punishment by the Judge for exercising their right to trial just because of some policy of eliminating pleas bargains.

Likely, the system would shut down unless everyone reevaluates prosecutorial priorities significantly. I could also see more efforts at pretrial diversion programs that avoid the justice system.

Posted by: Erik M | Jan 15, 2018 8:38:58 PM

In the no expense spared field of capital punishment, the estimate is a false positive rate of 4%. The rate is likely higher in cases with smaller budgets. The professional standard of conduct of prosecutors is explicitly set out in the Rules of Conduct, of Evidence, and of Criminal Procedure, and in common law precedents. I agree with David, that defenders should stop whining, and actually advocate for their clients.

1) End all tort immunities of prosecutors. Once done, end those of judges. These remedies will require an amendment, since the Supreme Court has blocked liability, even in the most egregious cases;

2) The smartest, most experienced prosecutor in the court room is most likely sitting on the bench. His exclusion from participation is a shameful waste. Allow judges to be inquisitorial. The argument is that the judge would be biased for the prosecution. It cannot get more biased than today. He is an experienced insider. If he is to be held accountable for a false positive, he must be able to investigate the facts. The judge must be inquisitorial out of fairness, if he is to be held accountable;

3) the standards of certainty, the rules of evidence, standards of interrogation, the avoidance of implanting false memories into the confessions by innocent people, the automation of decision making must be updated from their Medieval origins. No verdict should be based solely on human testimony. Objective evidence must be present in every case. As much evidence gathering, and decision making must be made by machines. Machines are 100 times better than living beings, no matter the task. Liability for mistakes, may be shared by the manufacturers and by the operators. Updated professional standards of due care should apply, even though strict liability applies;

4) appeals should involve experienced investigators, including appellate judges reviewing the case for mistakes of fact. End the restriction of appeals to legal loophole search games. Legal loopholes are infinite and do not help the innocent defendant.

Posted by: David Behar | Jan 15, 2018 10:17:47 PM

If you are pleading innocent people out, you need to find another job.

Posted by: whatever | Jan 16, 2018 2:01:20 PM

A likely case here is someone whose innocence is not clear but there is some chance of it though a reasonable person could feel there is clear evidence of guilt. The defense attorney sees a small chance of an innocent verdict while having a load of other cases. But, the attorney also knows that if the person goes to trial, the net result might be years more in prison. It might even be a capital sentence. And, the defense attorney might have an inkling the person is guilty anyways.

So, the defense attorney plays the odds and lays the cards on the table for the defendant. You can go to trial, but it's a long shot, and something of a bad bet. Pleading guilty is unfair, yes, but who said life was fair?

Posted by: Joe | Jan 16, 2018 8:36:23 PM

Joe. The girlfriend of a drug dealer writes on a Post It note, "Vito called. Call him back." The dealer boyfriend has told her, "Don't ask me about my business, Kate."

The FBI asks her, "Is this your handwriting, Kate?" She says, "Yes."

They reply, you are in federal drug conspiracy. We are taking your children, and putting them in foster care. We will put you in prison for 10 years, and they are not bluffing. They are not bluffing, despite her having zero involvement in the predicate crime, or even knowledge of it.

Is she guilty of any crime? Should she take a deal or go to trial? Those are yes/no questions. Do not do that weasel act here, yes, on the other hand, no.

Where is Bruce? This scenario happens to hundreds of otherwise innocent and fine women, mothers, each year. They are black, so the defense bar does not really care.

Posted by: David Behar | Jan 16, 2018 11:03:48 PM

Such a case was at the Supreme Court this week.


Posted by: David Behar | Jan 18, 2018 6:49:25 AM

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