tag:blogger.com,1999:blog-8597101.post4168745282202307800..comments2024-03-25T20:06:39.794-05:00Comments on Grits for Breakfast: Plea bargaining and the innocent defendantGritsforbreakfasthttp://www.blogger.com/profile/10152152869466958902noreply@blogger.comBlogger16125tag:blogger.com,1999:blog-8597101.post-59269246511352887002012-10-02T13:24:18.951-05:002012-10-02T13:24:18.951-05:00Hey Grits, man that was one hellofa piece on a top...Hey Grits, man that was one hellofa piece on a topic that's engulfed my life. I've dammed near bit my (hunt & peck) fingers off trying to avoid chiming in until at a time where Comments / Replies / Updates covered certain areas of concern I have personal knowledge of but left out of the entire equation, so here goes.<br /><br />*Before I go there - (Folks should also consider reading the GFB Comment section above for it is full of what needs to be: asked / said / confirmed / shared).<br /><br />RE: Competent Attorneys / Lawyers / Plea Bargaining & Probationers -<br /><br />The Law (especially Harris County District Courts – the nasty 263rd to be precise) allowed / allows them (hired and appointed) to dabble in areas they have absolutely no experience in. A Divorce / Estate specialist can: portray himself as a real CDL, be referred to as one, consult with families of felony defendants, quote fees to - "Take It To Trial", take down payments or collateral, pretend to file pre-trial discovery motions 30 days prior to trial date (that will ‘not’ be recorded by the clerk of court) & (the motion's ORDERS will ‘not’ be Agreed or Denied). Then come to the conclusion they are way over their head at lunch recess and lie to clients in courtroom holding cells in order to get out of it, telling clients on probation that despite a Not Guilty or Guilty verdict they are going to prison just for being arrested on a new charge while on it, and to avoid 99 years take the plea.<br /><br />So, if the WSJ editors happen across this, I suggest that you take the next year to expand your study to include real life experiences of those of us humans having ample proof of innocence prior to arrest only to be positively identified, charged, indicted & tricked into convicting ourselves by the very MoFo hired to prove one's innocence. <br /><br />My F-Story would never be considered for inclusion in their study due to the WTF? Factor, due to it dealing with what they ignored & showing that this Brady bullkrapola and due process expectation is a friggin joke. Thanks anyway, at least you got the ball rolling again. Like it’s going to matter.<br />Thomas R. Griffithhttp://www.projectnotguilty.comnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-87966782407582668482012-09-26T07:51:08.586-05:002012-09-26T07:51:08.586-05:00TO Gary said
Stated very well and couldn't ag...TO Gary said<br /><br />Stated very well and couldn't agree with you more about the myth of disallowing plea bargaining.<br /><br />Except on one point, Prosecutors are the sole source for perpetuating the myth that trials will increase %900.<br /><br /><br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-56973586814060909002012-09-26T06:59:36.499-05:002012-09-26T06:59:36.499-05:00There's no question plea bargaining is coerciv...There's no question plea bargaining is coercive, especially given the long-time prosecutorial practice charge-stacking for the specific purpose of coercion. What's needed is far more fixedness in sentencing so that discretion (other than whether to charge at all) is eliminated at both prosecutorial and judicial levels.<br /><br />The reduction under federal sentencing guidelines (which, by the way, have been merely voluntary for about a decade) for "cooperation" and "accepting responsibilty" are minimal. To force the process to offer only minimal reductions will encourage guilty persons to plea guilty and encourage those who are innocent to plea innocent (rather than intimidate them to plea guilty under wildly more severe sanction threats). The vastest majority of offenders are guilty.<br /><br />Thus, the STRUCTURE of proportional guidelines (allowing for minimal reductions for guilty pleas) based on the harm of the offense and the culpability of the offender (and culpability increases with prior convictions) is good. What needs to be examined is the length of punishments under fixed proportional systems.<br /><br />The idea that disallowing plea bargaining will increase the trial rate by 900% (all who now plea bargain will opt for trial) is a myth that has been perpetrated by lawyers--defense, prosecutors, and judges. Criminals will plea guilty at an extremely high rate when bargaining is not allowed and the sentences are proportional.<br /><br />Moreover, disallowing plea bargaining actually serves due process by giving potential offenders much clearer "proper notice" of the consequences of their actions, assuming that they are deterrable (a dubious assumption given criminals' here-and-now orientation). But it's fair. No longer will they be confused about the sentence they would face (i.e., "I thought I could plea bargain").<br /><br />When criticisms come from both sides of the political spectrum related to a criminal justice practice--where the Left opposes it because of its coerciveness and other lack of due process and the right opposes it because it fails to incapacitate, set an example, or teach a lesson)--we ought to examine that process.Garynoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-40230330781918623262012-09-25T22:25:31.722-05:002012-09-25T22:25:31.722-05:00Lee-
In my experience you have to pound on the DE...Lee-<br /><br />In my experience you have to pound on the DEFENSE attorneys to do their job. If you plead without demanding a hearing or a trial, you are out of luck. In my case I have solid withheld evidence of perjury at a suppression hearing; In my NEW attorney's immortal words, "Supppression is over." This of course is BS, he did not want to pursue it or go to trial. His oppinion was you could not win at trial in that court with perjured testimony in hand? And if you plead things get even darker in this grey area. If defense council dosen't want to do a suppression hearing (which is in reality the trial in a drug case), you don't want them representing you anyway. They are paid by you to talk you into pleading, one for the money, two not to rock the boat where they practice and three, God forbid you challenge the sham called the legal justice system where they make their living. The points made in anon 1:48, 1:49, 1:57 are all valid.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-34353918423264134752012-09-25T14:46:15.874-05:002012-09-25T14:46:15.874-05:00Lee, as I understand it (IANAL), Brady v. Maryland...Lee, as I understand it (IANAL), Brady v. Maryland only requires disclosure in cases that go to trial. It imposes no requirement on cases that plea out, which is one of its shortcomings in an era when 97+% of cases are resolved through pleasGritsforbreakfasthttps://www.blogger.com/profile/10152152869466958902noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-49641007968358124242012-09-25T14:20:36.236-05:002012-09-25T14:20:36.236-05:00Good article Grits. It did focus more on the fede...Good article Grits. It did focus more on the federal level than on the district and county courts.<br /><br />Perhaps you can clarify and elaborate: The results of Brady v. Maryland means that prior to trail all evidence (witness and exhibits) and such must be provided to the defense attorney. This includes such evidence that the prosecutor is not intending to use at trial, prosecutor or police think is irrelivant, anything and everything found through the investigation....? It seems very evil for the prosecution to encourage a plea prior to the defense receiving all of this information. Elaborate.Leenoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-7019388906050017052012-09-25T13:57:11.366-05:002012-09-25T13:57:11.366-05:00What about the factually guilty defendant whose co...What about the factually guilty defendant whose constitutional rights were violated to obtain the evidence against him in a victimless crime? What about the Officer who is then allowed to continue violating Constitutional rights of not only the guilty but many innocent people that we never hear from because they don't know their rights and were not taken into custody?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-55982013444272531012012-09-25T13:49:59.406-05:002012-09-25T13:49:59.406-05:00Average Joe, how about when a competent attorney c...Average Joe, how about when a competent attorney conducts his own investigation and discovery by issuing subpoenas to law enforcement agencies who then claim that evidence was recorded or written over inadvertently of course and the current case law says there is no remedy unless you can prove bad faith in the destruction of that evidence? And because they are aware of the near impossibility of proving bad faith that they get rid of evidence that may invoke the exclusionary rule and wreck their case. Then at the suppression hearing the prosecutor in robes as fact finder elects to believe the testimony of the Officer who should have evidence supporting his testimony, but does not, and the prosecutor in robes repeatedly looks the other way as these Officers do the same thing multiple times without being questioned about why we only have their word when there should be video or audio to support their testimony. It allows them to make illegal stops then claim that something happened a mile back to justify the stop (off the 30 second prerecord loop). To preserve that event, one button push is all it takes and if they don't do it they should not be believed time and time again. Judges who refuse to invoke the exclusionary rule and choose to accept this nonsense over and over should resign and join the prosecutor's office. What about when an officer coerces a defendant and in doing so obtains evidence illegally and their is video of it that conveniently malfunctions in the portions that show an officer making bogus claims to get someone to take a breath test for example? Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-73702797302500037002012-09-25T13:48:39.568-05:002012-09-25T13:48:39.568-05:00Ah, if only it was simple as 9:10 makes it sound. ...Ah, if only it was simple as 9:10 makes it sound. First, I suspect a lot of defense attorneys would rather their client plea for a couple of reasons. One, even if they are getting paid by the client instead of the measly indigent fee, most criminal cases are now done on flat fees so they come out ahead if they don't go to trial. Trials take time to prepare for and time to do. That is time they can spend working out additional plea deals and making more money. Second, I'm sure some defense attorneys enjoy going to trial, but I'm sure that for some its not something they find enjoyable. Third, going to trial is risky. The defense attorney probably feels better about a plead deal that gives his client what he considers to be a good deal vs. going to trial and possibly getting a harsh sentence. Some defense attorneys may put these considerations first and actual guilt or innocence may not be that important. Note I said some, not all. <br /><br />Also, I'm not sure that 9:10's statement about pleas always being initiated by the defense is accurate. The only one I have personal knowledge of is my own. I was charged with a felony by a DA who knew the charges to be false. Basically, I was charged with a trumped up felony because I called the DA a couple of names. Youv'e heard of contempt of cop, mine was contempt of the DA. Because of the DA's personal involvement the case was prosecuted by the AGs office. They made the initial plea offer of 5 years deferred adjudication on the felony charge. My response was not only NO, but Hell No. After I fired my wimpy attorney and hired on that they were afraid of, they offered to reduce the charge to a misdemeanor and one year of deferred adjudication. They made both offers, my attorney didn't ever ask for or make any offers. I wish now that I had fought because I was innocent. But, at the time there were other considerations that I won't go into here. I had experienced a significant tragedy and I wasn't really emotionally up to a very public trial. So, weighing the options of going to trial knowing that people in the DA's office were willing to commit perjury to send me to prison, against pleading to a misdemeanor and a year of deferred adjudication, I took the deal. Hear this - it was extremely difficult for me to say, in open court, that I did something I did not do. I almost couldn't do it. I almost blew it. I remember my defense attorney whispering to me that I was blowing the deal. But, I managed to pull it together and lie, i.e. say I did what I didn't do. It was either that or go to prison for something I didn't do. What would you do?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-30075006348077398522012-09-25T12:45:03.643-05:002012-09-25T12:45:03.643-05:00Avg Joe, perhaps a better question is "would ...Avg Joe, perhaps a better question is "would a competent defense attorney perform an investigation for $150, or whatever sum is paid to lawyers for representing indigent defendants?"Gritsforbreakfasthttps://www.blogger.com/profile/10152152869466958902noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-92094723076008872492012-09-25T11:56:24.167-05:002012-09-25T11:56:24.167-05:00Anonymous @ 9/25/2012 09:10:00 AM stated: "...Anonymous @ 9/25/2012 09:10:00 AM stated: "A competent defense attorney should be able to evaluate the strength of the prosecution's case, the attitudes and values of the judge and local juries and advise the client accordingly."<br /><br />Would a competent lawyer also conduct his own investigation/discovery and not just rely on what the prosecutor's file allegedly holds?Avg Joenoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-77483776286831540872012-09-25T11:33:36.770-05:002012-09-25T11:33:36.770-05:00Extortion n. -the crime of obtaining money or some...Extortion n. -the crime of obtaining money or some other thing of value by the abuse of one's office or authority.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-32312205927597573562012-09-25T09:31:39.264-05:002012-09-25T09:31:39.264-05:00Not to mention the spill-over that has local prose...Not to mention the spill-over that has local prosecutors in some instances threatening defendants that if their deal isn't taken soon they will notify federal investigators and slap a federal case on them too. I've only seen this tactic used in limited situations but when it was used it was persuasive and produced a quick conclusion. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-81363437333045851032012-09-25T09:19:36.338-05:002012-09-25T09:19:36.338-05:009:10, the point of the WSJ story and the academic ...9:10, the point of the WSJ story and the academic article is that, although it takes two to tango, the parties don't come to the bargaining table with equal clout. Long sentence lengths and prosecutorial discretion combine, particularly where there are potential mandatory minimums, as with federal sentencing guidelines, to stack the deck. Getting an innocent person to plea guilty to avoid an astronomical sentence may look like a "bargain" to the prosecutor, but it looks like coercion from the defendant's point of view.Gritsforbreakfasthttps://www.blogger.com/profile/10152152869466958902noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-51566616854954608642012-09-25T09:10:45.980-05:002012-09-25T09:10:45.980-05:00Although you imply that plea bargaining is somethi...Although you imply that plea bargaining is something initiated or encouraged by prosecutors, in my experience nearly every instance of plea bargaining is initiated by the defense attorney. In fact, some would suggest that it may be ineffective assistance of counsel for a defense attorney NOT to ask for a plea recommendation from the prosecutor. A competent defense attorney should be able to evaluate the strength of the prosecution's case, the attitudes and values of the judge and local juries and advise the client accordingly. Keeping in mind that at some point in any defense attorney/client relationship, there will likely be a discussion something along the lines of "did you do it" or "do you just want me to try to get you the best deal I can?" Whatever disparities might exist in the relative bargaining power of the parties, it is still a bargain. There is typically an offer, some level of negotiation and, ultimately, acceptance. It takes two to tango, as they say. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-29767057421369795472012-09-25T06:51:51.825-05:002012-09-25T06:51:51.825-05:00Definitely hitting the nail head on here! If ther...Definitely hitting the nail head on here! If there is concern in the federal system, there should be even greater concern in the lower court systems. Very good points and an accurate depiction of the plea bargaining as it is used today.<br />Could have gone one step further poining out how the process is so suceptible to misuse by prosecutors.Spot Onnoreply@blogger.com