The problems with
1) plea bargaining,
2) coerced confessions,
3) the colloquy,
4) testifying, and
5) the habeas corpus petition requesting a new trial.
1) plea bargaining,
2) coerced confessions,
3) the colloquy,
4) testifying, and
5) the habeas corpus petition requesting a new trial.
1) Plea Bargaining
In plea deals, whether innocent or guilty, a common motive is to avoid the "trial penalty." Anyone professionally involved in the criminal justice system, i.e. prosecutors, defense attorneys, court employees, and judges – will tell you defendants typically receive longer sentences at trial than they would have through plea bargain, often substantially longer.
Most guilty people serving time in prison maintain they are innocent. As of 2017, by some estimates there could be as many as 120000 people in U S prisons that really are innocent, but there’s no way to know for sure. While innocent people incarcerated have obviously been wrongfully convicted, about 10 percent confessed to crimes they did not commit. l and avoid the trial penalty.
The National Registry of Exonerations looked at 1700 people, who have been cleared since 1989, and attribute wrongful conviction to five main reasons:
55% – False accusation, meaning police started by arresting the wrong person.
47% – Official misconduct. Meaning officials involved didn’t follow the law.
32% – Eyewitness mis-identification. Sometimes witnesses are mistaken, and sometimes they just lie.
22% – Bad forensic science. Mistakes are made, and sometimes conclusions were just guesses.
13% – False confessions. Police, prosecutors, and even defense attorneys regularly push for confessions even if they think people are probably innocent.
After the Civil War
In central Virginia lies the quaint and historic town of Appomattox. Events in Appomattox are forever etched in the concluding chapter of Civil War History as the place where the end of the Civil war was initiated. One often repeated slogan is, “where the nation was reunited." Appomattox is a small town with only a few thousand residents who are friendly, charming, trusting, and mainly politically conservative Americans.
Ironically, a lesser known fact is that immediately after the Civil War, as the nation was trying to reunite, courts everywhere were inundated with cases. Thus, a severely overburdened criminal justice system turned to plea bargaining to ease the load. A plea bargain is basically a negotiated agreement. For any given case, both the conviction and punishment are first negotiated between the prosecutor and the defense attorney, and, eventually, taken before a judge for approval. This was done as a practical matter to alleviate the avalanche of cases that fell on the courts across post-war America.
Today, 150 years after General Robert E. Lee surrendered his Army of Northern Virginia to General Ulysses S. Grant at Appomattox, the right and tradition of trial by jury has practically disappeared. This right to be tried by one’s peers was affirmed by the Sixth Amendment to the Constitution.
Today, across the nation at both federal and state levels, the plea bargain has nearly made jury trials obsolete. Consequently, people are getting convicted in record numbers and America’s prisons are overflowing. Nationally, various sources report federal criminal prosecutions are resolved by plea bargain. In state courts, the numbers are comparable.
Once plea bargaining became the norm, it opened the door for law enforcement officials to cut corners because there is only a 1 in a 100 chance that the evidence they gather for a given case will ever be closely scrutinized by a judge or a jury in an actual trial setting where rules of evidence and burden of proof are enforced.
I spoke with one venerable defense attorney who was a former prosecutor in Appomattox. He said his win rates as prosecutor at jury trials were extremely high because citizens of Appomattox trusted their prosecutors and law enforcement, and were inclined to believe whatever they presented.
Such "advantage” for prosecutors has long been the norm everywhere until recent years when numerous wrongful convictions have been exposed. Reversals are more commonplace among larger populations where suspicions of corruption among judges and law enforcement is more commonplace. In small towns across America, percentage of conviction rates at jury trials remain high and sentences handed out are extremely harsh whenever jurors think defendants were lying to them.
Prosecutors across the country have the power to start punishment immediately by recommending the defendant be held without bond, or by asking the judge to set bond at an amount the defendant cannot pay a bondsman his fee, which is 10% to cover the bond. Personal losses begin to mount up. In many instances, the moment a defendant is incarcerated, they not only lose their liberty, they also lose their livelihood, and other personal losses begin to accrue from that moment forward. The bills that go unpaid often include rent and car payments. Most things of value are often irretrievably lost for people who are held without bond, regardless of their guilt or innocence. Once the police arrest someone for a serious crime, a process begins and there’s no turning back. The prosecution’s next move is to start applying pressure by isolating (incarcerating) the accused, which means:
1) cut off their communications,
2) restrict their movement, and
3) cut off their financial resources.
Police and prosecutors routinely push for guilty pleas to resolve cases in an efficient manner. That is the normal manner of business. However, when does it become coercion, intimidation, and/or blackmail?
Coerced Confessions
In the criminal justice system, conflicts of interest exist at every turn. Study wrongful convictions of people on death row that have been overturned, and watch how the people responsible for the injustice react. Rather than admit their mistakes the most common response by prosecutors is to continue to impugn the innocent people whose lives they ruined. Rather than cooperate in retrying a case, they would rather an innocent person rot in jail. It is tragic how far we have strayed from the notion of innocent until proven guilty. Whenever an innocent person is accused and immediately incarcerated, chances become much higher for prosecutors to get an easy conviction, and sometimes a false confession from an innocent person.
The Coerced Confession of the President's National Security Advisor
On May 20, 2020, the Washington Post newspaper published this article by George Will:
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"Our plea bargain system can make the innocent admit guilt. Enter Michael Flynn."
"Michael Flynn, who was President Trump’s national security adviser for 24 days and who has been entangled in the criminal-justice system for 40 months, pleaded guilty of lying to FBI agents and now recants that plea. We shall return to Flynn below, but first consider Habeeb Audu, who is resisting extradition from Britain to the United States, where he is charged with various financial crimes.
The Cato Institute’s Clark Neily was asked by Audu’s lawyers to write, in accordance with British extradition practices, a Declaration — an “expert report” — about the risk that Audu would not have a meaningful right to a fair U.S. trial. Neily, a member of the American Bar Association’s Plea Bargaining Task Force and head of its subcommittee on impermissibly coercive plea bargains and plea practices, concludes that extradition would “guarantee” Audu’s subjection to a process that “routinely” coerces through plea bargaining. So Audu probably would experience “intolerable pressure designed to induce a waiver of his fundamental right to a fair trial.”
Plea bargaining is, Neily argues “pervasive and coercive” partly because of today’s “trial penalty” — the difference between the sentences offered to those who plead guilty and the much more severe sentences typically imposed after a trial. This penalty discourages exercising a constitutional right. A defendant in a computer hacking case, Neily says, committed suicide during plea bargaining in which prosecutors said he could avoid a trial conviction and sentence of up to 35 years by pleading guilty and accepting a six-month sentence.
The pressure prosecutors can exert — piling on (“stacking”) criminal charges to expose defendants to extreme sentences; pretrial detention, nearly always in squalid confines; threatening to indict family members — can cause innocent people to plead guilty in order to avoid risking protracted incarceration for themselves and loved ones. Such pressures effectively transfer sentencing power from judges to prosecutors. How exactly are these pressures morally preferable to those that used to be administered by truncheons in the back of police stations?
These are reasons why of the nearly 80,000 defendants in federal criminal cases in fiscal 2018, just 2 percent went to trial and 90 percent pleaded guilty. In 2018, 94.7 percent of criminal convictions were obtained through plea bargains in the Southern District of New York, which is seeking Audu’s extradition.
Prosecutors have discovered that almost any defendant can be persuaded to plead guilty, given sufficient inducements. This discovery has been partly a response to the fact that the over-criminalization of life, and particularly Congress’s indefensible multiplication of federal crimes, means that otherwise the court system would, in Justice Antonin Scalia’s words, “grind to a halt.”
There is, Neily says, “abundant, undisputed evidence” of innocent defendants pleading guilty. Of the 367 convicts exonerated by DNA analysis to date, 11 percent had pleaded guilty. Various studies have concluded that between 1.6 percent and 8 percent of defendants who plead guilty would not have been convicted in a trial. The lowest estimate would mean that in 2009 there were more than 1,250 innocent people incarcerated in the federal system alone, and many multiples of that number in state systems.
Responding to Neily’s Declaration, the Justice Department complacently asserts that U.S. law guarantees fair trials: Coercive plea bargains are forbidden, therefore they do not occur, so innocent people do not plead guilty. Move along, nothing to see here.
The Justice Department should consult Jed S. Rakoff. In a 2014 essay, “Why Innocent People Plead Guilty,” he wrote that since the last third of the previous century, a fair trial — an adversarial process, conducted in public before a neutral judge and a jury of the defendant’s peers — has become “all a mirage.” Rakoff is a senior judge on the U.S. District Court for the Southern District of New York.
Now, about Flynn. Perhaps he lied in an interview with FBI agents. We must, however, take their word for this, because, in accordance with an archaic and self-serving practice, the agents did not record the interview. They wrote their unverifiable version. This, although all FBI agents carry recording capabilities in their smartphones. After prosecutors threatened to indict his son, who was his business partner (remember the axiom: “A prosecutor can get a grand jury to indict a ham sandwich”), a coerced and impoverished Flynn, facing many millions in legal bills, and later selling his suburban Washington house, pleaded guilty.
Perhaps Flynn now regrets leading “Lock her up!” chants at the Republican National Convention. All Americans should regret the need for Neily’s many proposed reforms, including a DOJ Office of Plea Integrity to scrutinize coercive plea bargaining, a national embarrassment.
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The above article is from the washingtonpost.com © 1996-2020 The Washington Post
The Same Playbook
The same tactics outlined in the Washington Post article where used to coerce my daughter Katie to confess to burglaries she didn't commit. The persuasion process began by keeping her incarcerated and away from her children from the day of her arrest and for the next 36 days consecutive. Obstacles were put in place to make it difficult to get bail, which eventually totaled $90,000. After bail was posted she was put on house arrest and wore an anklet monitor. She was not allowed to travel to meet with her attorneys, and could only leave to meet with her assigned probation monitor or to go to the hospital for a medical emergency. During this time the prosecutors in multiple jurisdictions amassed an avalanche of charges that eventually totaled between 50 and 60 felonies divided between breaking and entering, grand larceny, and receiving stolen property. Within a few weeks of her arrest Katie was offered a plea deal to serve between 8 and 10 years. On multiple occasions Katie was told that if she didn't confess and ask for leniency she would never see her young kids until they were grown and had their own kids. We have 3 hours of video tapes of Katie meeting with investigators and prosecutors to beg them to look for the lady who brought stolen goods to Katie's consignment shop. On the video the coercion techniques are easy to spot. For example, one investigator told her he had arrested a man selling cigarettes illegally who refused a plea bargain and insisted on a trial. The found him guilty and he was sentenced to over 60 years in prison. Neither Katie nor any of her family members knew about such tactics, and had naively believed that a person is innocent until proven guilty.
Katie's situation was complicated by her own attorneys hiding information from her that proved her innocence. That's right, after she was sentenced I found 3 alibis and 2 exonerating eyewitnesses that proved someone else was burglarizing homes. Katie filed 5 Habeas Corpus petitions asking for a new trial, one petition in each jurisdiction that wrongfully prosecuted her, showing the coercion, the withholding of evidence (Brady violations), falsifying evidence, and the details of why her own attorneys were so ineffective. For example, since her own attorneys led Katie had been misled to think she had no defense, she finally gave into the coercion and confessed hoping for leniency. However, Katie was then sentenced in 5 different jurisdictions as if she were a 5-time offender and came away with close to 20 years without parole. She was also ordered to pay almost $150,000 in restitution upon her release, which means the victims are now waiting for payments to begin. If Katie's sentence is allowed to stand, she will be in her 60's when she is released and starts looking for work. Based on her pay the court will have her making monthly payments that will be divided among the victims.
The double-edge sword of this type of injustice is that innocent people are going to prison after being coerced to confess, and victims are seldom made whole. Who is primarily responsible for this injustice?
Primarily it's the prosecutors who deserve the bulk of the blame. Even when Prosecutor misconduct causes an innocent person to be sent to prison it's extremely rare to punish the prosecutor.
The Cato Institute’s Clark Neily was asked by Audu’s lawyers to write, in accordance with British extradition practices, a Declaration — an “expert report” — about the risk that Audu would not have a meaningful right to a fair U.S. trial. Neily, a member of the American Bar Association’s Plea Bargaining Task Force and head of its subcommittee on impermissibly coercive plea bargains and plea practices, concludes that extradition would “guarantee” Audu’s subjection to a process that “routinely” coerces through plea bargaining. So Audu probably would experience “intolerable pressure designed to induce a waiver of his fundamental right to a fair trial.”
Plea bargaining is, Neily argues “pervasive and coercive” partly because of today’s “trial penalty” — the difference between the sentences offered to those who plead guilty and the much more severe sentences typically imposed after a trial. This penalty discourages exercising a constitutional right. A defendant in a computer hacking case, Neily says, committed suicide during plea bargaining in which prosecutors said he could avoid a trial conviction and sentence of up to 35 years by pleading guilty and accepting a six-month sentence.
The pressure prosecutors can exert — piling on (“stacking”) criminal charges to expose defendants to extreme sentences; pretrial detention, nearly always in squalid confines; threatening to indict family members — can cause innocent people to plead guilty in order to avoid risking protracted incarceration for themselves and loved ones. Such pressures effectively transfer sentencing power from judges to prosecutors. How exactly are these pressures morally preferable to those that used to be administered by truncheons in the back of police stations?
These are reasons why of the nearly 80,000 defendants in federal criminal cases in fiscal 2018, just 2 percent went to trial and 90 percent pleaded guilty. In 2018, 94.7 percent of criminal convictions were obtained through plea bargains in the Southern District of New York, which is seeking Audu’s extradition.
Prosecutors have discovered that almost any defendant can be persuaded to plead guilty, given sufficient inducements. This discovery has been partly a response to the fact that the over-criminalization of life, and particularly Congress’s indefensible multiplication of federal crimes, means that otherwise the court system would, in Justice Antonin Scalia’s words, “grind to a halt.”
There is, Neily says, “abundant, undisputed evidence” of innocent defendants pleading guilty. Of the 367 convicts exonerated by DNA analysis to date, 11 percent had pleaded guilty. Various studies have concluded that between 1.6 percent and 8 percent of defendants who plead guilty would not have been convicted in a trial. The lowest estimate would mean that in 2009 there were more than 1,250 innocent people incarcerated in the federal system alone, and many multiples of that number in state systems.
Responding to Neily’s Declaration, the Justice Department complacently asserts that U.S. law guarantees fair trials: Coercive plea bargains are forbidden, therefore they do not occur, so innocent people do not plead guilty. Move along, nothing to see here.
The Justice Department should consult Jed S. Rakoff. In a 2014 essay, “Why Innocent People Plead Guilty,” he wrote that since the last third of the previous century, a fair trial — an adversarial process, conducted in public before a neutral judge and a jury of the defendant’s peers — has become “all a mirage.” Rakoff is a senior judge on the U.S. District Court for the Southern District of New York.
Now, about Flynn. Perhaps he lied in an interview with FBI agents. We must, however, take their word for this, because, in accordance with an archaic and self-serving practice, the agents did not record the interview. They wrote their unverifiable version. This, although all FBI agents carry recording capabilities in their smartphones. After prosecutors threatened to indict his son, who was his business partner (remember the axiom: “A prosecutor can get a grand jury to indict a ham sandwich”), a coerced and impoverished Flynn, facing many millions in legal bills, and later selling his suburban Washington house, pleaded guilty.
Perhaps Flynn now regrets leading “Lock her up!” chants at the Republican National Convention. All Americans should regret the need for Neily’s many proposed reforms, including a DOJ Office of Plea Integrity to scrutinize coercive plea bargaining, a national embarrassment.
-------------------------------------------------
The above article is from the washingtonpost.com © 1996-2020 The Washington Post
The Same Playbook
The same tactics outlined in the Washington Post article where used to coerce my daughter Katie to confess to burglaries she didn't commit. The persuasion process began by keeping her incarcerated and away from her children from the day of her arrest and for the next 36 days consecutive. Obstacles were put in place to make it difficult to get bail, which eventually totaled $90,000. After bail was posted she was put on house arrest and wore an anklet monitor. She was not allowed to travel to meet with her attorneys, and could only leave to meet with her assigned probation monitor or to go to the hospital for a medical emergency. During this time the prosecutors in multiple jurisdictions amassed an avalanche of charges that eventually totaled between 50 and 60 felonies divided between breaking and entering, grand larceny, and receiving stolen property. Within a few weeks of her arrest Katie was offered a plea deal to serve between 8 and 10 years. On multiple occasions Katie was told that if she didn't confess and ask for leniency she would never see her young kids until they were grown and had their own kids. We have 3 hours of video tapes of Katie meeting with investigators and prosecutors to beg them to look for the lady who brought stolen goods to Katie's consignment shop. On the video the coercion techniques are easy to spot. For example, one investigator told her he had arrested a man selling cigarettes illegally who refused a plea bargain and insisted on a trial. The found him guilty and he was sentenced to over 60 years in prison. Neither Katie nor any of her family members knew about such tactics, and had naively believed that a person is innocent until proven guilty.
Katie's situation was complicated by her own attorneys hiding information from her that proved her innocence. That's right, after she was sentenced I found 3 alibis and 2 exonerating eyewitnesses that proved someone else was burglarizing homes. Katie filed 5 Habeas Corpus petitions asking for a new trial, one petition in each jurisdiction that wrongfully prosecuted her, showing the coercion, the withholding of evidence (Brady violations), falsifying evidence, and the details of why her own attorneys were so ineffective. For example, since her own attorneys led Katie had been misled to think she had no defense, she finally gave into the coercion and confessed hoping for leniency. However, Katie was then sentenced in 5 different jurisdictions as if she were a 5-time offender and came away with close to 20 years without parole. She was also ordered to pay almost $150,000 in restitution upon her release, which means the victims are now waiting for payments to begin. If Katie's sentence is allowed to stand, she will be in her 60's when she is released and starts looking for work. Based on her pay the court will have her making monthly payments that will be divided among the victims.
The double-edge sword of this type of injustice is that innocent people are going to prison after being coerced to confess, and victims are seldom made whole. Who is primarily responsible for this injustice?
Primarily it's the prosecutors who deserve the bulk of the blame. Even when Prosecutor misconduct causes an innocent person to be sent to prison it's extremely rare to punish the prosecutor.