Wednesday, March 29, 2006

'Judge's role isn't just to be a rubber stamp'

Judges shouldn't rubber stamp plea bargains, writes Judge Susan Criss in the Galveston Daily News responding to a recent editorial (Kuff has the background). Since more than 99% of Texas convictions result from plea deals, I wonder if that's how most judges view it?

Good stuff in the op-ed - read the
whole thing.

Prof. Alexandra Natapoff argues persuasively that police use of "snitches" or confidential informants constitutes an "informal" plea arrangment, so it's interesting to read Judge Criss describe what additional protections judicial oversight provides to victims, defendants and the public in the plea bargaining process. She writes:
Judges are required by law to make several findings before being able to accept a deal. If the judge does not accept a plea bargain, the defendant is allowed to withdraw a plea of guilty and enter a plea of not guilty.

Judges must determine if a defendant is knowingly and voluntarily giving up certain constitutional rights and has the mental competence to do so.

I am prohibited by law from accepting a guilty plea if the person claims to be innocent. I have rejected many pleas where that occurred. In some instances the defendant later returned and admitted guilt. In other cases the persons turned out to be innocent.
None of those protections exist when police or prosecutors coerce a confidential informant in more informal settings. The CI might protest their innocence or might not be mentally competent - it doesn't matter because the arrangement never has to pass the judicial smell test. That's particularly true in federal settings.

It's great that Judge Criss could take time off from monitoring probationers at the Galleria to write this piece. :-) She oversaw the case of millionaire killer Robert Durst, then
ran into him while shopping in Houston when he was supposed to be under house arrest. Durst was ultimately acquitted of murder (on grounds of self defense) after he killed his neighbor, chopped up the body, and tossed it into Galveston Bay - his wild story and legal journey are one of the oddest you'll ever encounter.

When Grits received notice recently of her new
campaign website, I emailed Judge Criss to suggest she add a blog - she politely replied that the campaign kept her too busy, but I see at least she's got the writing bug. We've got plenty of lawyer blogs, but besides Judge Posner, the blogosphere is definitely still short on judges.

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