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January 12, 2022

"No Justice, No Pleas: Subverting Mass Incarceration Through Defendant Collective Action"

The title of this post is the title of this notable new essay authored by Andrew Manuel Crespo now available via SSRN.  Here is its abstract:

The American penal system is a system of massive, oppressive, racially unjust incarceration.  It is also, to quote the Supreme Court, a “system of pleas.”  The latter drives the former, as coercive plea bargaining makes it possible for the state to do two things that are otherwise hard to pull off at once: increase convictions and sentence lengths.  Mass incarceration is a predictable result.

But while plea bargaining is intensely coercive when leveraged against individuals, the system of pleas has a structural weak point.  That Achilles heel is exposed once we see people facing prosecution not as isolated individuals but rather as a potentially collective community of power.  Organized to act together, this community has unique resources. Most notably, they have the power to say “not guilty” when asked “how do you plead?” If done together, this simple but profound act of resistance would grind the penal system to a halt.  Courts and prosecutors simply do not have the resources to sustain mass incarceration while affording everyone accused of a crime the constitutionally guaranteed right to a trial.  This fact is what makes plea bargaining so essential to mass incarceration in the first place.  Plea bargaining unions, with their implicit power to threaten plea bargaining strikes, thus hold a potentially radical transformative power — a decarceral power, a democratic power — that arises from the penal system’s massive overextension.

Susan Burton, a formerly incarcerated organizer, floated this idea in the pages of the New York Times with Michelle Alexander one decade ago. In the years since, it has never received focused academic attention and has seen only sporadic and isolated attempts at implementation.  This essay is the first installment of a broader project that aims to conceptualize, strategize, and test the limits of Burton’s idea. The immediate goals here are to chart some of the contours of Burton’s core insight — examining both its promise and its hurdles — while marking some key questions for future exploration.

January 12, 2022 at 02:45 PM | Permalink

Comments

"...once we see people facing prosecution not as isolated individuals but rather as a potentially collective community of power...."

Yup, that's it! A consortium of those who have sex with five year-old's, sell smack to high schoolers, rob the immigrant trying to make his way by being the night cashier at the 7-11, fleece grandma out of her life savings, smuggle aliens across the desert in a waterless truk, do three blocks' worth of smash-and-grab, etc., etc., are a "community of power."

You gotta love people who write stuff like this, you really do. Boy do I wish they'd shown up at my door when I was an AUSA.

P.S. If anyone is interested in a more serious but still pointed discussion of plea bargaining, I had one with the VP of Cato for criminal law, the very experienced Clark Neily. https://fedsoc.org/events/feddie-night-fights-plea-bargain-punch-out

Posted by: Bill Otis | Jan 12, 2022 3:13:41 PM

Hi Bill -
I just think that the article is trying to make the point that the system is built upon plea bargains and that if more than 5% or so of defendants were to insist upon a jury trial, the system would break down. I do think, however, that we should try to view defendants as people who can be redirected onto a more positive life path and that the more people we can redirect without using prison/probation/felony records the better - thus we should try to view more and more defendants as capable of change and use the least restrictive means to address criminal behavior.

Brett Miler

Posted by: Brett Miler | Jan 12, 2022 5:31:04 PM

This article presents a great thought experiment but ignores the fact that the participants are facing an enormous prisoner's dilemma. Eventually someone is going to crack, as soon as that one does it becomes that much harder for the rest to retain their solidarity.

Posted by: Soronel Haetir | Jan 12, 2022 5:47:58 PM

Sounds like a recycling of "One Just Man" authored by James Mills in 1974

Posted by: ? | Jan 12, 2022 7:02:10 PM

Soronel --

What you say is correct and points to an even more disturbing flaw at the base of the article: It views individual defendants as ciphers in an attack on the system -- in other words, as political soldiers defined by a cause rather than as individuals. Talk about politcizing justice!

And there's this too: The answer here is to simply tell the truth. If you're guilty, say so and accept the consequences of your intentional behavior. If you're not, say that and tell the government that it will have to convince a unanimous jury of 12 strangers, beyond a reasonable doubt, that you committed every element of the offense.

Of course, the advice to "simply tell the truth" is anathema to a big chunk of the Left, which sees EVERYTHING as a Really Big Political Struggle of some kind, and to a smaller but allied portion that thinks the whole thing is a game with strategy and moves and head fakes, and that simply telling the truth is just a sop for suckers.

Posted by: Bill Otis | Jan 12, 2022 8:17:36 PM

Brett Miller --

"I do think, however, that we should try to view defendants as people who can be redirected onto a more positive life path..."

It's a mistake to view "defendants" as a class. Some can be redirected in a better direction and some can't or won't agree to it. It depends mostly on the individual, not the "system." Recidivism statistics suggest that rehab fails more often than it works. But this is not surprising; by the time someone gets charged with a crime for which any significant period of incarceration is a realistic possibility, he or she has typically gone past the time when they're going fundamentally to change. It happens every now and again, but for the most part it doesn't.

Posted by: Bill Otis | Jan 13, 2022 1:34:18 AM

I totally agree that defendants shouldn't be viewed as a class. Some are guilty, some are not. And there's no way to tell which is which without a fair trial, which the vast majority of defendants of both classes cannot afford. As such, plea bargains are an abomination, as they are not a method for determining truth, but take guilt as the axiom on which the whole system is built.

It would be no more unfair for me to assume that, just because he's a prosecutor, Bill Otis is automatically guilty of suborning perjury, hiding exculpatory evidence, and threatening would-be defense witnesses with perjury charges. How about we hold Mr. Otis in a covid-infested jail with a bail he can't afford, but promise to immediately release him with time served if he confesses to the above? I wonder if he thinks that would be fair.

Disclaimer: I was coerced into a felony plea bargain 44 years ago, for a charge I was completely innocent of. My record is otherwise perfectly clean before and since. I was later able to prove my innocence. The Virginia courts did not dispute my proof, but said it was irrelevant due to being untimely, so my conviction stands.

Posted by: Keith Lynch | Jan 13, 2022 8:12:20 AM

Soronel, not only does the article NOT ignore the prisoner's dilemma, it actually includes an entire section entitled "Prisoners' Dilemmas" (pages 17-22).

Perhaps we can all take the time to actually read these articles (or at least their tables of contents) before commenting on them?

Posted by: Curious | Jan 13, 2022 9:38:16 AM

Isn’t this the prisoners dilemma?

Posted by: Federalist | Jan 13, 2022 1:27:04 PM

Keith Lynch --

"Some are guilty, some are not. And there's no way to tell which is which without a fair trial, which the vast majority of defendants of both classes cannot afford."

Two points on that one. First, in my experience, public defenders are, on average, at least as good as privately retained attorneys. They know the judges and have a heart-felt commitment to their clients. Second, there most certainly is a way to determine guilt without a trial, that being the defendant's own words, backed up by the sort of corroboration typically provided in the statement of facts that accompanies the plea.


"As such, plea bargains are an abomination, as they are not a method for determining truth, but take guilt as the axiom on which the whole system is built."

The Supreme Court begs to differ, and has for at least 50 years. See Brady v. United States and Santobello v. New York. The great majority of criminal cases are settled for the same reason the great majority of civil cases are settled: Each party gets something it values, and both are saved the expense and uncertainty of trial.

"It would be no more unfair for me to assume that, just because he's a prosecutor, Bill Otis is automatically guilty of suborning perjury, hiding exculpatory evidence, and threatening would-be defense witnesses with perjury charges."

Yup. But if I said under oath in open court, after weeks or months to think about it, and with the assistance of counsel, and knowing the range of possible consequences, that I suborned perjury, etc., then you would be overwhelmingly justified in concluding that that's what I did.

"How about we hold Mr. Otis in a covid-infested jail with a bail he can't afford, but promise to immediately release him with time served if he confesses to the above? I wonder if he thinks that would be fair."

I think I would tell the truth, as I did in court for 25 years without exception. I didn't do that because that's what the rules require. I did it because that's what my parents taught me long before I ever heard of court. And they taught me that it's most essential to tell the truth, not when it's easy and inconsequential, but when it's hard and costly.

What did your parents tell you?

As to your claim that you falsely told a court that you were guilty of a crime, that's not something I would be proud of. You also provide no specifics and no citations to the Virginia court decisions you claim vindicated your innocence. I was wondering if you could provide these things now. For example, why were you arrested? What was the charged offense that went to court? Could you provide a copy or link to the indictment? What was the colloquy between you and the judge when you entered your plea? What did he ask and what did you answer? What did the government say was the supporting evidence? Could we see a transcript? (Self-serving post facto declarations of innocence just don't move the ball). Did your attorney agree to this fraud on the court? What was his name? Did the police, the prosecutor, your attorney and the judge all effectively collude to convict a man they knew or had good reason to know was innocent? Can you understand why that allegation of an immoral conspiracy is hard to believe?


Posted by: Bill Otis | Jan 13, 2022 3:12:31 PM

As usual with these scholarly papers, they have to claim that there is some kind of racial element to mass incarceration, when it is instead the vastly large number of black violent criminals in American society.

However the idea of the paper is revolutionary and should be considered. However the writer's idea that there should be a "collective" or something is nonsense. Those charged with crimes in Fresno are not going to collectively bond in pleading not guilty with those in Sarasota.

A more practical solution would be to pass blanket laws prohibiting plea bargaining of any kind or more likely, pass laws that make jury trials mandatory in all cases.

This would successfully outlaw plea bargaining. This measure should be implemented, like yesterday.

Posted by: restless94110 | Jan 13, 2022 3:13:57 PM

restless --

"A more practical solution would be to pass blanket laws prohibiting plea bargaining of any kind or more likely, pass laws that make jury trials mandatory in all cases...This would successfully outlaw plea bargaining. This measure should be implemented, like yesterday."

If plea bargaining were outlawed, the defense bar's screeching would be audible on Pluto.

This is what the pro-criminal crowd is missing (or hiding): The defense bar LIVES OFF plea bargaining. And why shouldn't it? Bargaining churns the cases much more quickly and therefore brings in the dough, and it gets the client off with a fraction, often a small fraction, of what he'd be facing if he went to trial.

The idea that it's all on the prosecutor's side is just a fantasy, as those of you who actually do litigation full well know.

Posted by: Bill Otis | Jan 13, 2022 3:28:12 PM

Bill,

You'll note, however, that even when there has in fact been a trial that restless still rejects the result (regardless of whether that result is acquittal or conviction). Don't feed the troll.

Posted by: Soronel Haetir | Jan 13, 2022 5:20:59 PM

Mr. Otis, I'll answer your questions about my case, but I don't think this is the appropriate venue. Please send me your email address. Thanks. Anyone else who wants to see my reply to him, send me your email address too. Send to my current disposable email address, kfl21f@KeithLynch.net. Thanks.

Posted by: Keith Lynch | Jan 13, 2022 5:49:18 PM

Crespo misses the public's medium and long term response to such an action. Everyone who is convicted of anything significant will start getting a de facto life sentence with guaranteed parole after the sentence length the public feels they "should" serve. Everyone gets one trial, then the system doesn't have to worry about those pesky trial rights because you can just revoke parole. Could you blame the public for supporting such a system if the alternative were letting 95 percent of crimes that currently get prosecuted escape sanction?

Posted by: Jason | Jan 13, 2022 10:12:01 PM

Keith Lynch --

I respectfully decline to send you my email, for three reasons.

First, I don't give it out to people I don't know, and I don't know you. The "body language" of your comments tells me that you're probably acting in good faith, but not with the degree of confidence I need.

Second, I have given out much more information about myself than any other commenter, almost completely without reciprocity. I'm not going yet further down the disclosure path until that changes. Half the people here won't even identify themselves.

Third and most important, this is a public thread, not a private exchange. You used your own experience to highlight what you view as the defects in plea bargaining. There's nothing wrong with that, but, because this is a PUBLIC discussion rather than a one-on-one conversation limited to you and me, the important (if not critical) details of the bargain you in your own case are ones I would need to explore in a continuation HERE of this debate -- a continuation all should be able to see. Thus, I could not, consistently with the whole purpose of a public discussion board, maintain the confidence it seems you seek.

To put it another way, it's not really possible to put forward a specific example of one plea bargaining experience without, in that same medium, setting out the full range of critical information about it, i.e., what was the charge, what was your lawyer's role, what questions got asked and answered at the plea-taking hearing, what the judge (and later the appellate judges) said in their own words, etc.

Posted by: Bill Otis | Jan 13, 2022 11:29:38 PM

Plea vs. go to trial is not quite the prisoner's dilemma. In the prisoner's dilemma, both individuals benefit if neither cooperate.

In the plea bargaining context, that's not the case. It is more a reverse tragedy of the commons. The "commons" -- the court system -- would suffer if everyone fully used it (but the users would benefit if the commons collapsed). So the system contains incentives to the individual person to not use it.

My county for example has the ability to try around 250 cases per year (at least pre-covid). We typically try 50-80. If defendants as a group adopted a no plea policy, we would have to triage cases. But the top 250 cases would get tried. So if you are a person facing a murder case or a child sex assault (the cases that we have been trying during the more restricted covid era), you will get your trial. Thus, assuming a "good" plea offer that gives you a discount from what you would get if you are found guilty, a guilty defendant would lose by rejecting the plea regardless of whether other defendants also insist on a trial. So these defendants have no incentive to balk at taking a good offer. And the process flows from there -- if 240 of the 250 defendants facing the most serious charges plead, we then have 200 trial slots available for the next batch of offenders and so forth until our full caseload has been resolved with only 50 trials.

To shut down the system, enough of the people at the top of the priority list have to be willing to accept the consequences -- a longer sentence -- to benefit strangers who are only facing a minimal sentence or probation. Most people are not that altruistic, and criminal offenders as a group are not noted for being exceptionally concerned about the wellbeing of others.

Posted by: tmm | Jan 14, 2022 10:57:16 AM

tmm,

The prisoner's dilemma being faced is that if all defendants insisted upon going to trial (and stuck to it) the prosecutor's office would have to entirely drop charges against the vast majority. But knowing that others are unlikely to stick to the pact it is in each defendant's own interest to be the first to defect.

Posted by: Soronel Haetir | Jan 14, 2022 12:47:34 PM

Comments like those are why Otis was rejected for the USSC

Posted by: whatever | Jan 14, 2022 4:07:30 PM

whatever --

Although it's hard to critique your nuanced analysis of the supposedly excess use of plea bargaining (the subject of this thread -- remember?), you might want to be a bit more refined there in Step 3.

Posted by: Bill Otis | Jan 14, 2022 11:05:41 PM

Sornonel, except in the classic prisoner's dilemma, everyone benefits to a degree if no one defect (depending upon how it is phrased) and is harmed more if somebody else defects but they do not. In the reject all pleas movement, there is a group of defendants that will lose if nobody defects and are not impacted by what other people do.

Let's call the top priority cases as Group A. Their option is plead and average say 15 years in prison or go to trial and fact 25 years. They have no incentive to go to trial. Going to trial is not a gamble on other people choosing not to defect, it is sacrificing yourself to beneft somebody elses.

In the prisoner's dilemma, people in group A are facing the option of if both defect, each gets 15 years, if one defects that person gets 5 years and the other gets 35 years, if neither defects, both (depending on if you want a sole defector to be better off than if nobody defects) go free or get 10 years. In short, there is some potential gain from not defecting. So maybe the person is willing to gamble that the other person will see it the same way and opt not to defect. It is about whether to gamble on what somebody else will do, not about sacrificing yourself to that somebody else will get the benefit.

Posted by: tmm | Jan 16, 2022 10:55:21 AM

tmm and Soronel --

I think we need to take a step back from the academic world and its theories and models, and look at why plea bargains are as prevalent as they are in the real world (which is to say, in close to all the cases).

The reason is easy to see: They're this prevalent because ALL the actors in the system benefit. The defense bar can take a lot more cases (and thus make more money) while getting substantial benefits for the client they would be unlikely to get at trial. The prosecution gets more convictions of criminals at lower cost per case, and avoids the uncertainties and risks of a contested action. The judges get an easier and less onerous work load, what with the attorneys essentially doing the nitty-gritty for them. And the defendants get to walk away from many (often most) of the original charges, and/or get reduced charges, plus credit for acceptance of responsibility at sentencing.

Where all the actors benefit from Practice X, Practice X will continue. This is real easy.

I personally would prefer less plea bargaining, because (1) it makes people lazy, and (2) the Constitution, after all, designates trials not bargains as the method for resolving criminal cases. But I don't make the world.

Posted by: Bill Otis | Jan 16, 2022 2:53:40 PM

Bill Otis,

And I would prefer that nearly all felons and a good number of misdemeanants be executed. We don't always get what we want.

Posted by: Soronel Haetir | Jan 16, 2022 5:04:01 PM

Mr. Otis: Okay, I'll respond to your questions about my case here,
having gotten permission from our gracious host. I apologize for the
excessive length and the poor organization, but I wanted to post this
quickly, before you stop checking this comment thread for replies.
(All others are of course also welcome to read and respond to this.)

Before getting into my case, I'll respond to your implicit claim that
a confession given under duress should be treated as gospel. Everyone
agrees that a mugger who says, "give me your wallet or I'll shoot you"
is guilty of a serious crime. Would you claim that if the mugger
instead says, "give me your wallet and say, 'I'm giving you this
wallet of my own free will because the wallet is rightfully yours, and
I'm not being coerced' or I'll shoot you" he is completely innocent of
any crime?

You suggest that innocent people should trust the system and go to
trial. Any American who follows the news knows that any such trust is
profoundly misplaced. And even if he doesn't follow the news, he'll
be advised by his lawyer that if he goes to trial he will probably
lose. Seldom does a week go by without yet another headline about
someone exonerated after 20, 30, even 40 years in prison. Usually
if they had pleaded guilty they would have been out in five years or
less. And it's obvious to anyone who has read in detail about many
such cases that the causes of the wrongful convictions are very
common, and the causes of the exonerations are freakishly unlikely,
implying that the overwhelming majority of innocent convicts are
never exonerated.

When an innocent defendant believes that if he goes to trial he'll
almost certainly be convicted and sentenced to a lengthy prison term,
or that if he refuses to plead guilty his loved ones will also be
prosecuted, or that trials are postponed indefinitely due to covid and
he'll remain in a covid-infested jail until then, that's coercion, and
many people will plead guilty, just as happened in Stalin's infamous
show trials, and during the Salem witch hunts. Nobody in Salem who
confessed to being a witch was executed.

Should Kalief Browder have pleaded guilty? He was held in Rikers
Island without a trial for three years, for allegedly stealing a
backpack. He was offered "time served" if he were to plead guilty,
but he refused and demanded a trial. Eventually the charges were
simply dropped. He was badly abused in that jail, and committed
suicide soon after his release.

It may be true that "public defenders are, on average, at least as
good as privately retained attorneys." But most privately retained
attorneys aren't very good, especially not if they're not assisted
by expensive investigators, witnesses, and forensic scientists.
Defendants who win serious cases typically spend far more money
on a defense than most American can afford.

You imply that a guilty plea is the same as a confession under oath.
That's obviously false, since otherwise there would be no such
thing as an Alford plea, in which a defendant pleads guilty while
maintaining his innocence.

You may be perfectly truthful, but people are known for the company
they keep. Prosecutors work with police. Not all cops are killers,
but they're all liars. It's a job requirement. They claim they only
lie to suspects, but countless videos, including ones from their own
body cameras, have proven that they also routinely lie to judges and
juries. Honest people don't lie to anyone.

For years after my case, I thought that what happened to me was an
aberration, a nest of bad cops and a corrupt prosecutor, and that they
would soon be arrested and convicted, and I would be exonerated. Only
gradually did I learn, from books, blogs such as Radley Balko's, and
personal communications from others to whom similar things happened,
that this was simply the way the system worked all over the US, and
that my school, the newspapers, and Joe Friday had lied to me. The
system total lacks both the religious/humanist virtue of humility and
the scientific virtue of falsifiability. For these they substitute
the bogus virtues of "finality" and "closure."

Cops and prosecutors are rewarded for convictions regardless of
circumstances. It's as if the system had been designed to lock up as
many Americans as possible for as long as possible, using techniques
such as coerced plea bargains, prisoners' dilemma, reverse prisoners'
dilemma, suborned perjury, rigged lineups, and bogus forensic science.

About my case:

I was raised in a conservative household. We honored and trusted
authorities, including the police. I watched TV shows such as
Dragnet, and movies such as The FBI Story, and believed it was
non-fiction, and that cops were good guys who valued truth and
justice. I got an A in high school civics and in nearly all other
classes except gym. I never got into trouble at school or elsewhere.

At age 20 in 1977 I moved from my parents' house to an apartment in
Arlington County, Virginia. After a few months with little income,
I got a roommate, William Kelly Shields, to share the rent, after
meeting with his parents. He was 17, and was the son of an Air Force
general.

Just eleven days after he moved in with the help of his parents, we
were both arrested for a string of burglaries, all in the same nearby
office building. They began after he moved in. I was unaware of
them. He had a computer terminal which he said he had gotten from his
father, and I had no reason to suspect that he was lying and that it
was stolen. I later learned that other stolen office equipment was
hidden in his part of the apartment, and that some was at the home of
a friend of his, whose name I don't remember.

The terminal needed a phone line. Presumably the cops told the phone
company to watch for the terminal during phone line installations.
It was the phone installer, called by Shields, who reported its
presence in our apartment to the police.

I was interrogated at length. They read me my Miranda warnings,
but I wrongly believed they were working in good faith, and that by
cooperating I could quickly clear myself and assist them in going
after the real culprit. They kept falsely insisting they had
overwhelming evidence against me, including fingerprints at the crime
scene, eyewitnesses, video, and forensic evidence such as prints
of the shoes I was then wearing. They acted insulted when I kept
insisting I was innocent and hadn't been there, and as I kept coming
up with increasingly implausible explanations for the evidence
(e.g. that my roommate must have borrowed my shoes).

They then insisted -- after spending hours keeping me off balance --
that I know I'm lying about "not remembering," even though I never
mentioned memory. They said nobody is going to fall for a claim that
I blanked it out, or for an insanity plea. Before I could regain
my bearing, one cop quietly says something like, "Wait a minute, I
noticed this subtle sign in him, I think he might actually be telling
the truth about not remembering." That cop then argues with the
others. Finally they provisionally come to agree with him, and argue
to me that they're here to get me help, but only if I agree to fully
cooperate with them, by trying really hard to remember, and by coming
up with a hypothetical scenario of the burglary.

I didn't confess. Instead I had a total breakdown. They had me
half believing that I was criminally insane.

That night, or at least as soon as the next time I was able to sleep,
I dreamed of committing the burglary. Was it a dream, or a repressed
memory? I had many similar dreams during my imprisonment.

I was held in jail. Neither my parents not I could afford the $5000
bail.

I was appointed a lawyer. I don't think Virginia had official public
defenders at the time. I will not post his real name on this public
forum, as I have some negative things to say about him, he's still
in practice, and I don't want to get sued. (Yes, I know truth is a
defense, but presumably the state would rely on its version of the
truth, not on the actual truth.) So I'll call him Lionel Hutz. (If
you really want to know his name, you can probably get it from my
criminal record. Or you could just email me your email address.)

I noticed that the search warrant said apartment 683 (which didn't
exist), but I was in apartment 638. I mentioned this to Hutz, and
asked if that meant the results of the search could be thrown out.
Hutz replied that I "watch too much television." This isn't evidence
of innocence, of course, but it is evidence of ineffective counsel.
Also, he didn't investigate at all and didn't call any character
witnesses despite a dozen volunteers.

I was soft touch for Hutz's insisting that I was "technically guilty"
(of what?) but that the judge knew I hadn't done anything seriously
wrong, and would almost certainly sentence me to probation or time
served if I were to plead guilty. The plea bargain was how to "put it
behind me" and "take responsibility." He had an air about him that
this was no big deal, but was the sort of thing that happens to almost
everyone eventually.

He also told me that the prosecutor was willing to drop all charges
if I were to truthfully testify that my cellmate, Michael G. Simoneau,
had confessed to murder. I tried to get him to confess, but didn't
succeed, so of course I didn't testify. (Simoneau was later convicted,
I don't know on what evidence, nor do I know if he was guilty.)

Also, if I was unwilling to follow Hutz's advice, he would withdraw
from my case and I'd be on my own. I either didn't know that it was a
felony, or didn't know what felony meant. Nobody told me that I would
permanently lose any rights. Nobody told me what crime I was pleading
guilty to or what the elements of that crime were.

Since I've always been a perfectionist, I *felt* guilty, simply
because a stolen terminal was in my apartment, and my roommate hadn't
yet been listed on the lease agreement. Also, I knew he was 17 (3
years younger than me), hence perhaps I was supposed to supervise him
rather than treating him as a fellow adult. Also, I could have easily
checked with his father as to whether he (the father) was really the
source of the terminal. It wasn't until years later that I realized
how crazy and antisocial it would be to assume anything of value a
roommate had is probably stolen unless he can prove otherwise.

Hutz also told me that I'd be tried separately on each of the several
charges, and would spend months in jail between each trial, and that
if I were convicted of even one of them, I would be sentenced to up to
20 years in prison on each charge.

I don't remember what I said to the judge, except that it was exactly
what Hutz told me to say. If I recall correctly, the judge didn't ask
me to confess to anything, but just made sure I knew that by pleading
guilty I would lose my right to a trial or to appeal the conviction or
sentence. And he asked me if I had discussed this with my attorney.

If I recall correctly, Hutz "waived reading." He had a large stack of
papers and asked me to sign them in several places. This was in front
of the scowling and impatient judge, whom I didn't want to annoy. The
courtroom was full of people, and I knew they weren't there for my
case, but for other cases. In retrospect I should have insisted on
returning to the jail with the papers so I could read them, but I
trusted Hutz, and believed him when he had said or strongly implied
that I would be sentenced as soon as I pleaded guilty, and that I
would then be free to go home. So I signed all the papers in the
indicated places without reading any of them. I didn't get to keep
a copy, so I have no idea what they said. For all I know, I signed
a confession to assassinating President Kennedy, or a will leaving
everything to Hutz, or both.

I was guilty of what Ayn Rand called the greatest sin of all -- mental
abdication. I was completely lost, so I totally relied on Hutz. I
do recall that when I finally learned what I had pleaded guilty to --
two counts of burglary -- I was very surprised. I had thought it was
something like unknowing possession of stolen property or failure to
supervise my juvenile roommate.

All other charges were dropped in the plea bargain. They almost all
involved burglaries in various offices in the same office building,
1901 North Moore Street in Arlington. Also possession of burglary
tools; I have no idea what tools that referred to. I had standard
tools and tools specific to electronics, but never had any lock picks.
I had also been charged with possession of a device to tap phones. I
never had any such thing. I did have lots of radio gear, as I had a
ham radio license (N4TP), and as part of that hobby I had things such
as alligator clips, which I suppose could be used to tap phones.

Whatever I said to the judge, he wasn't impressed. He said he was
"baffled" by my case. (So was I.) He sentenced me to six years,
saying I appeared to be angry and not at all remorseful. I was
sent to a prison farm, Bland Correctional Center in Bland County.

Fortunately, this was before Virginia abolished parole. I was
eligible for parole in 18 months. I had heard that nobody gets parole
unless they admit their guilt at their parole hearing. I thought long
and hard about that, and decided that I would answer honestly even if
it meant I would serve the full six years. I would have been willing
to say I didn't think I was guilty, as I had no memory of the crime,
and as it would have been profoundly out of character for me, nor was
there any motive, but that I couldn't be certain. Fortunately, they
didn't ask about my guilt, but only about my future plans.

I've always had lots of good friends. Some of them got together to
do two things, line up a job for me and investigate the crime. They
ended up doing both in the same place, DBS, the small firm I had
pleaded guilty to burglarizing twice, on consecutive weekends. They
spoke to its president, Don Reisler. He said that the police hadn't
investigated at all, but just took the report over the phone. And
that Hutz hadn't even done that much.

After talking with my friends during at least two visits, he was
convinced of my innocence, for three reasons:

* The burglar climbed in through the ceiling. At the time I was
morbidly obese and not at all athletic. (So much for burglary
tools being relevant.) (I lost the excess weight 34 years ago
and have kept it off ever since.)
* The burglar wrote something on the wall. They proved that was not
my writing by showing him letters I wrote them from prison. The
content of those letter also told him of my character, interests,
and skills.
* There was a third identical burglary the following weekend,
by which time I was in jail, so I obviously couldn't have done
that one.

He agreed to hire me, sight unseen, directly out of prison, if I made
parole. I was able to inform the parole board of this at my parole
hearing.

I worked at DBS for a year. The writing was still on the wall.
It wasn't my roommate's writing either. I remained friends with
Don Reisler for the rest of his life. (He died in 2012.)

He hired a lawyer to get my conviction overturned. This lawyer
informed us of Virginia's notorious 21-day rule. If you were
convicted of murdering me in the Old Dominion, and I were to show
up alive and well 22 days later, they'd go ahead and execute you,
as proof of innocence is irrelevant after three weeks.

You ask what court accepted proof of my innocence. No court did.
They refused to look at the proof, as it was untimely. Sorry if I
said anything that implied otherwise.

After a year at DBS I went to work for SAIC, a defense contractor,
with the help of a friend who worked there. I got a security
clearance. On my SF-86 form I explained the circumstances of my
wrongful conviction. The federal government accepted my explanation
after interviewing Reisler, my friends, my parents, and others.

I'm still officially a convicted felon. But I think being viewed
as innocent by the crime victim, by the federal government, and by
everyone who knows me well is pretty persuasive, as is the fact that
my record is otherwise perfectly clean before and since. Nor have I
ever in my life been fired, sued, committed, or had anyone ask for a
restraining order or protective order against me, nor have I ever been
on any form of public assistance.

My fellow prisoners also viewed me as innocent, even when I didn't say
anything about my case. Probably because I had none of the correlates
of criminality, other than being young and male. I didn't (and still
don't) lie, cheat, steal, smoke, drink, gamble, overspend, use drugs,
borrow money, have tattoos, have prominent scars. I didn't talk about
crimes, guns, gangs, or about any of the above. I almost never use
profanity. Nor have I ever been promiscuous. (I do have needle tracks,
but those are due to my being a 30-gallon blood donor.)

Prisoners almost always talk among themselves about their past crimes
and their plans for future crimes and how they plan to avoid getting
caught again. I did not.

I'm no longer politically conservative, especially not now that it
seems to mean support for Trump and refusing vaccination and masks
(though I do vote no on all bond issues), but I remain conservative
in my personal habits. I'm a strong believer in taking personal
responsibility. All I ask from the government is to be left alone.

And yes, I do feel guilty about my profound gullibility. Hutz may
have thought he was doing me a favor by lying to me to get me to plead
guilty. Very likely I would have lost at trial, and been sentenced to
decades, especially if I had a lawyer who did nothing except warm the
chair next to me at the defense table, but it was *my* choice, and he
stole that from me. I'm just thankful that my dishonorable behavior
directly harmed nobody but myself. That being said, don't you think
I've been punished enough? If I ever had a "debt to society," I've
long since paid it off. Why not automatically clear everyone's record
after seven years? Financial debts, even if they're for millions of
dollars, automatically go away after seven years. How many ex-convicts
are convicted of new crimes after seven years with a clean record?

I mentioned having dreams about the burglaries, which at the time I
couldn't be absolutely certain weren't memories. DBS didn't look
anything like the crime scene in my dreams, nor did the rest of the
building. So I no longer have any doubt about my innocence. Also,
psychological research has shown that implanted memories exist and
repressed memories do not.

My voting rights were restored in 2016. Not for any virtue on my
part, but because Governor McAuliffe restore the rights of everyone
who had completed their sentence.

You say, "The Supreme Court begs to differ [about plea bargains], and
has for at least 50 years. See Brady v. United States and Santobello
v. New York. The great majority of criminal cases are settled for
the same reason the great majority of civil cases are settled: Each
party gets something it values, and both are saved the expense and
uncertainty of trial."

They also say it's okay for police to lie, but that doesn't make lying
honest or virtuous. It doesn't even make it a good strategy for the
police, except in the short term. More and more people are refusing
to believe anything a cop says, or to answer any police questions, no
matter how innocuous. Millions have seen that 46-minute "Don't Talk
to Police" YouTube video by a law professor here in Virginia to his
class, which describes how even truthful answers by an innocent person
can be used to convict him.

Compromise is not always a good thing. If someone points a gun at you
and demands your wallet, do you think you should compromise? Maybe
give him half your money and one of your credit cards, and in return
he'll only pistol-whip you, not shoot you? The plea bargain is
egalitarianism run amok, as it treats guilty and innocent exactly
alike, though no two groups should be treated more differently. And
it rewards acting ability above all else. Had I been less honest
and been a skilled actor, I might have falsely claimed, during
my allocution, that I had been addicted to heroin but was now
courageously in recovery, one day at a time, and thanked the
cops who ransacked my apartment for saving me from all that, until
there wasn't a dry eye in the courtroom, and gotten probation.

Future generations will look upon Brady v. United States and
Santobello v. New York the way we look upon Dred Scott v. Sandford.
SCOTUS isn't infallible.

You wrote, "But if I said under oath in open court, after weeks or
months to think about it, and with the assistance of counsel, and
knowing the range of possible consequences, that I suborned perjury,
etc., then you would be overwhelmingly justified in concluding that
that's what I did."

Your friends, family, and coworkers may conclude that. And of course
judges are required to conclude that. (I'm sure a judge who refused
all plea bargains would soon be fired.) But I would not conclude
that, despite my being biased against prosecutors and cops. Unlike
most cops, I'm aware of confirmation bias, and don't imagine that
I'm somehow immune. I have a whole shelf of books about wrongful
convictions, but I also have a whole *bookcase* of books that are
pro-police, pro-prosecution, and anti-defendant. Have I mentioned that
I've always spent most of my free time reading? I won't say I own a
lot of books, but I really ought to get carbon sequestration credits
for them. I have seen public libraries with fewer titles.

I'm also aware of just how coercive the system is. They love and
reward redemption narratives, but hate and punish innocence narratives.
A young person is likely to choose five years in prison over a likely
sentence of life without parole, even if it requires falsely confessing
to whatever they tell you to confess.

You ask, "What did your parents tell you?"

They told me to always tell the truth, and to always cooperate with
authorities. I still always tell the truth when I speak or write, but
I often choose to remain silent and uncooperative. For instance when
U.S. Marshals came to my door ten years ago in search of a federal
fugitive I had exchanged letters with when he was in prison, I didn't
answer the door or return their phone calls, as tempting as it would
have been to invite them in and show them that he wasn't there.

You ask, "Could you provide a copy or link to the indictment?"

I can't find my copies, but I'm sure I'm the only person named Keith
Lynch to be indicted in Arlington County, Virginia (the smallest
county in the US), in December 1977, so they should be easy to find.
If you need my birthday, SSN, or anything else that could be used
for identity theft, sorry, but I won't post it in a public forum.

You ask, "What was the colloquy between you and the judge when you
entered your plea? What did he ask and what did you answer?"

It was 44 years ago. I was very confused by the process. My memory
is far from perfect. So I won't venture to guess. As I said, I don't
think I confessed to anything, or was even told what I was pleading
guilty to. Perhaps there's still an official recording or transcript
of it somewhere that you can find. If so, I'd love to get a copy.

You ask, "What did the government say was the supporting evidence?"

I don't recall them saying anything. But I assume the supporting
evidence was that stolen office equipment was found in the apartment
that was in my name only. And presumably my roommate, and perhaps
his friend, claimed that I did it, in return for charges against them
being reduced or dropped.

Bill Shields, my roommate, later joined the Army, got a dishonorable
discharge and a lengthy criminal record, and committed suicide in
Florida in 2004.

You say, "Self-serving post facto declarations of innocence just don't
move the ball"

I have no reason to lie. In my experience, ex-convicts do not
typically maintain their innocence even if they are innocent.
There's no benefit to it.

You ask, "Did the police, the prosecutor, your attorney and the judge
all effectively collude to convict a man they knew or had good reason
to know was innocent?"

I doubt they gave the slightest thought to whether I was innocent or
not, any more than a cattle rancher gives any thought to the innocence
of the cattle he slaughters. As I said, they didn't even bother to
visit the crime scene. I could *walk* from the crime scene to the
police headquarters in just eleven minutes. Rather, they just went
through the process by rote, dotting the "i"s and crossing the "t"s.

Phrased another way, I believe the whole of the criminal justice
system is a collusion to convict as many Americans as possible of as
many crimes as possible and to sentence us to as many years in prison
as possible. I'm not claiming that's the motivation of any individual
in it, but that people within it who tend to work toward that goal
tend to be rewarded and promoted, and those who take the time,
money, and effort to try to figure out, not who can be expeditiously
convicted, but who is actually guilty, tend to be left behind,
if not actually fired.

You ask, "Can you understand why that allegation of an immoral
conspiracy is hard to believe?"

I'm not saying it's a conspiracy, as that would require scienter,
i.e. knowledge among the participants that they're doing something
not just immoral, but illegal. As you said, SCOTUS has given their
dispensation, as they once did for slavery.

Becoming convinced of how profoundly broken and dishonest the criminal
justice system is took me years, and thousands of pages of reading
of reputable sources. For instance when I say that much of forensic
science is bogus, that's not something I heard on some crackpot's
radio broadcast, that's the conclusion of The President's Council of
Advisors on Science and Technology's report, "Forensic Science in
Criminal Courts: Ensuring Scientific Validity of Feature-Comparison
Methods."

Also, cops tend to think they have a magical infallible ability to
tell who is lying to them, and that once they're sure of the suspect's
guilt, that justifies whatever it takes to convict them.

Please look at my criminal record to confirm that my record is
perfectly clean before and since that eleven-day crime spree 44 years
ago. (Well, I did get a $50 ticket in DC 15 years ago, but that was
civil, not criminal.) Due to your status, you're probably also able,
unlike most people, to confirm my claim that I also have no juvenile
record, and possibly also my claim that I obtained a security
clearance and that I claimed innocence on my application for it.

If you doubt my claim that my alleged victim hired me right out of
prison as he knew I was innocent, please read _The Many Worlds of Hugh
Everett III: Multiple Universes, Mutual Assured Destruction, and the
Meltdown of a Nuclear Family_ by Peter Byrne. For that biography,
Peter Byrne interviewed me and also Don Reisler, the man who hired
me. There is less than a page about me, since the biography isn't
about me. Byrne's day job is as an investigative reporter, so I doubt
he could be easily fooled. And I'm not the one who told him Reisler's
name or how to reach him. You can also contact Byrne directly, via
his website, https://www.peterbyrne.info/

This was a long time ago, I was confused through most of it, and my
memory is imperfect, so please forgive me if I'm misremembering some
minor details.

After confirming my claims, please post the fact that you confirmed
them in this thread, so I can point others to that confirmation.
Thanks.

Posted by: Keith Lynch | Jan 17, 2022 2:34:00 PM

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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