Monday, July 13, 2009

Plea Bargain of an Innocent

Reading this article at Simple Justice, I got thinking about something that really bothers me.

Often, given the risks of trial and the way the deck is stacked against criminal defendants (beyond a reasonable doubt my ass...) an innocent person will plead guilty to a lesser offense simply to get a shorter sentence (and to end the uncertainty). As part of any guilty plea, generally the defendant is required to admit to doing the conduct, under oath, in court.

I was wondering how one can reconcile this with laws against perjury and against facilitiation of perjury (for a lawyer). If you know your client is innocent, but think he or she will still be convicted, or at least might be, how can you let them allocute to guilt under oath? How can the innocent person, in good consicence, commit perjury just for the sake of the plea?

If I were that innocent person, I would honestly tell the court that I was innocent, but that I was pleading guilty to a lesser charge because of the risks of not doing so being too great. If the court would not allow me to do that and plead guilty, then I would take that up to appeal and argue that it is a violation of due process to only allow plea bargains for reduced charges to guilty people while denying them to innocent people. Maybe I am just crazy, but it seems crazy to me that innocent people should get a worse outcome than guilty people under our system (of course, one could argue that innocent people will always get a worse outcome since they have so much taken away by the system, and all when they did nothing wrong).


DagoodS said...

If you know your client is innocent, but think he or she will still be convicted, or at least might be, how can you let them allocute to guilt under oath?
Good question. The first being, how do I know they are innocent? Because they say so? Because I have some evidence indicating they are innocent? Because I have incontrovertible proof?

Who am I to determine the innocence of my client? I agree with the dissent in the case in the article—that determination is made by a judge or jury. Not me. I am in no position to make the sole determination—often with limited facts—as to their guilt or innocence. To be honest, I never even ask myself the question.

Secondly, the system is comprised of people. And therefore will inherently have faults. Prosecutors tend to overcharge—accusing a person of more than what they actually did. An Assault & Battery is charged as Felonious Assault. A Felonious Assault is charged as Assault with intent to do GBH. A GBH as Attempted Murder and so on. Do we allow our client to face a possible OVERcharge in a trial?

Our system relies upon the plea bargain. Like it or spike it, due to the crimes committed and resources available, to keep the system from coming to a grinding halt, we cannot have a trial on every case. Which means my client may plea to a lesser charge than what they actually committed.

The idea being we give them a better deal than they might have if going to trial.

But let’s use a real life example. This happened last week. My client was charged with not stopping at a stop sign. A 3-point ticket. (The points on your driver’s license, in Michigan, if too many accumulate can cause suspensions and even revocations. More importantly, insurance companies use them to determine rates.)

The prosecutor offered me a Limited Access Speeding. This is a speeding ticket of 5 mph or less over the speed limit on a highway. Humorously enough—there are no highways in this jurisdiction. An impossible ticket to get. BUT—it has 0 points.

I recommended my client plead “Responsible” to a 0-point ticket (they were absolutely innocent of this infraction) to avoid the extremely great possibility of getting a 3-point ticket.

Is that suborning perjury? If yes—then I don’t know of a criminal defense attorney who hasn’t done so. We won’t have any left. If no—where do you draw the line of acceptable in plea bargains?

DBB said...

Ultimately, it is one of those insane practices taken as normal in a broken system.

Perjury is a serious crime - well, except when it is done on a routine basis to keep the docket moving.

Bribing a witness is a serious crime - well, except when you are a prosecutor and the bribe is a reduced charge in another, unrelated case.

And so on...

armagh444 said...

Well, I started to respond, and then realized that this topic needed it's very own post.

DBB said...

armagh444, I'm glad I inspired you to write, since I enjoy it when you do...