Wednesday, December 02, 2015

Natapoff: Add plea bargaining to canonical causes of wrongful convictions

Grits looks forward to Sasha Natapoff law review articles with the sort of anticipation which in high school accompanied the release of albums by my favorite bands. Regrettably, unlike those bands, legal scholars have crappy promoters and sometimes I'm late to the show. So Grits was delighted that Doug Berman pointed out her new article, "Negotiating Accuracy: DNA in the Age of Plea Bargaining," in which she declared that, "we should recognize plea bargaining as a source of wrongful conviction in its own right, and add it to the canonical list of wrongful conviction sources such as mistaken eyewitness testimony, lying informants, and bad forensics." Yes, ma'am! Hear, hear!

Noting that, "Fourteen percent of the wrongful convictions listed in the National Registry of Exonerations are the result of a plea" bargain, she suggested the real proportion of false convictions based on pleas is much higher. After all, "it is easier to revisit a conviction where the defendant has maintained his or her innocence and there is a factual record that can be reinvestigated and legally challenged."

"Easier" is an understatement. What students at innocence clinics do with their time is review trial transcripts and evidence for problems or irregularities. No trial? No transcript, no evidence. Unless there's exculpatory DNA evidence sitting around in a lab somewhere, key witnesses recant, or someone else credibly confesses to the crime, there's no record to attack in plea-bargained cases, so there are few viable avenues for proving innocence claims.

Natapoff contends that, “the quest for DNA-like accuracy tempts us to forget that most criminal guilt is negotiated, not 'discovered.'” "In the world of trials and formal adjudication," she observed," accuracy matters a lot. In the plea bargaining universe, accuracy is negotiable and thus matters less. This latter point is on display in two bargaining arrangements that routinely lead to wrongful convictions: informants, where evidence is obtained by bargaining, and the misdemeanor assembly-line process where convictions are obtained by bargaining."

Brilliantly, she contends that, "we should understand the criminal deal itself as a primary source of wrongful conviction, precisely because it commodifies and trades away accuracy—even DNA’s—in exchange for other institutional values." Even so, "the bulk of the innocence movement’s proposed reforms are designed with the trial-oriented evidentiary model in mind." That's exactly right. (See a discussion of the limits of canonical innocence reforms in recommendations from the Innocence Project of Texas to the Timothy Cole Exoneration Review Commission, authored by your correspondent at his day job.) Plea bargaining, combined with the coercive nature of bail-based pretrial detention, contributes to "inaccurate" pleas, in Natapoff's parlance.

She grants that "plea bargaining is often inaccurate for complex, even sound reasons," often to the benefit of the defendant, and the article offers a good discussion of different brands of intentional inaccuracy in pleas. Even so, while fully acknowledging that "accuracy is not the system’s only foundational value," clearly "accuracy still matters profoundly" and "the innocence discourse is an important reminder not to let the cost-benefit instrumentalism of plea bargaining obscure the injustices of wrongful conviction."

These are just a few tasty excerpts, the whole thing is excellent, give it a read. And for those with holiday reading time on your hands, let me suggest that anyone interested in innocence, plea bargaining, or informants should take time perusing her full law-review oeuvre, which includes all sorts of excellent goodies. As far as Grits is concerned, Sasha's a rock star.


Thomas R. Griffith said...

Speaking as a VOTS (victim-of-the-system) specifically the part that allows and condones CDLs (both, Fake & Real) to TapOut: financially challenged suspects turned, defendants turned, clients that were on probation at the time of arrest on a new unrelated charge with versions of the following deceptive legal advice. Stop the trial, take the plea, despite a Guilty or, Not verdict, you are going to prison due to your probation being automatically revoked upon arrest. It’s cheaper to TapOut than fight it and so on.

With that, I salute Natapoff for bringing a national spotlight to the reformation party and encourage others to stand up and be counted. I truly hope that she considers a Series related to the under-belly of the beast witnessed by 94% -/+ of all criminal clients advised to deny themselves a full jury trail to verdict. I’d also love to see her or, Grits in the audience at the last of CNN’s 2015 Debates asking everyone to raise their hand, if they would sign onto legislation that outlaws obtaining any felony or, misdemeanor convictions which are devoid of a Jury Trial to verdict, where a Not Guilty plea was entered and a jury was seated, yet, excused in order to plea bargain. Of those with raised hands, how many would issue Pardons to those that can show they were not only innocent and every single person knew it, but was deprived the right to prove it. I’d pitch in to send whoever was willing to take the trip, especially if they quipped it off with a – would you consider dropping the Annual Turkey Pardon crap that makes the USA look foolish.

Anonymous said...

Sad thing -- until you become personally involved in our screwed criminal system, you don't understand the enormity of the problem. And then it's too late.

Anonymous said...

Like most lawyers, Natapoff has a woefully poor grasp of statistics in general, and conditional probabilities in particular.

Given that 90% of convictions result from plea deals and 10% from trials, the observation that 14% of wrongful convictions are associated with plea deals and 86% are associated with trials strongly suggests that the plea process is much more accurate than the trial process in determining guilt and innocence. If the processes were equally accurate, then 90% of wrongful convictions would be associated with plea deals not 14%, all other things being equal.

Of course, all other things may not be equal. And they may be so woefully unequal that the arguments based on probabilities are meaningless. That would be a fine argument to make. But in that case the percentage of wrongful convictions associated with plea deals is a meaningless number, and should be recognized as meaningless. It shouldn't be twisted to be support for one position when it really is support for the contrary position. All other things being equal.

The Homeless Cowboy said...

Back in the years when I was being a professional Idiot, 2006-2008 I was arrested I think 3 times for possession. This is a felony charge in Harris county, a slap on the hand anywhere else because it involved the possession of an empty crack pipe. I fully admit my wrongs. I was surprised that the Harris county da offered me 30 days at 2 for one, so I would spend 15 days in jail for a felony possession charge. HHHMMMMMMM? it happened 3 times, the 3rd time they offered me 10 years and I laughed, so they said "If you sign today, they will give you 30 days at 2 for 1.

What a farce these people play on the Citizenry. LAW AND ORDER, HA! These people care about conviction rates and paperwork. They don't care who you are or what the offense is, they care about how it will play to the tv, newspapers etc.

It is such a worthless process for the State, City and the people, remember the people? you are there to support the people.

I am continually surprised that attorneys leave that office and become millionaire attorneys or go to Television shows like The world famous Kelly Siegler.

I cant really see how any human being can work in that da's office without contemplating suicide, after the tasteless and inhuman things they do in order to advance their careers and bank accounts.

Just my humble opinion, to be taken with a grain of salt as I am a victim of my own behavior first. Their system 2nd.

Gritsforbreakfast said...

6:14, have you ever heard of the logical fallacy, "post hoc ergo propter hoc"? That was a truly clueless comment, you really don't know what you're talking about.

Anonymous said...

Hello ,
Am Mrs Cynthia corvin . Am a lady with a great testimony I live in USA and i am a happy woman today? and i told my self that any lender that rescue my family from our poor situation, i will refer any person that is looking for loan to him, he gave me happiness to me and my family, i was in need of a loan of $360,000.00 to start my life all over as i am a mother with 2 kids I met this honest and GOD fearing man loan lender that help me with a loan of $360,000.0.Dollar, he is a GOD fearing man, if you are in need of loan and you will pay back the loan please contact him tell him that is Mrs cynthia corvin, that refer you to him. contact Mr.Ahmed Akeem,via email:-
*Hard Money Loans
*Business Loan
*Debt Consolidation Loan
*Personal Loan
*Business Expansion Loan
*Student Loan
*Agricultural Development Loan
...And Lots more