The Washington Post reports the Justice Department is reviewing a Bush Administration policy that required some criminal defendants to agree to waive their right to DNA testing as a part of plea deals.
The practice of using DNA waivers began several years ago as a response to the Innocence Protection Act of 2004, which allowed federal inmates to seek post-conviction DNA tests to prove their innocence. More than 240 wrongly convicted people have been exonerated by such tests, including 17 on death row.
The waivers are filed only in guilty pleas and bar defendants from ever requesting DNA testing, even if new evidence emerges. Prosecutors who use them, including some of the nation’s most prominent U.S. attorneys, say people who have admitted guilt should not be able to file frivolous petitions for testing. They say the wave of DNA exonerations has little impact in federal court because all those found to be innocent were state prisoners, and the waivers apply only to federal charges. DNA evidence is used far more frequently in state courts.
But DNA experts say that’s about to change because more sophisticated testing will soon bring biological evidence into federal courtrooms for a wider variety of crimes. Defense lawyers who have worked on DNA appeals strongly oppose the waivers, saying that innocent people sometimes plead guilty — mainly to get lighter sentences — and that denying them the ability to prove their innocence violates a fundamental right. One quarter of the 243 people exonerated by DNA had falsely confessed to crimes they didn’t commit, and 16 of them pleaded guilty.
I had not been aware of this policy, and I am glad to see that it is under review.
Martinned says:
So have we worked out yet whether it is unconstitutional to execute (or lock up) someone who is actually innocent?
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October 11, 2009, 10:03 am11-B/20.B4 says:
This policy flies in the face of the whole concept of a justice system. Also, it betrays a lack of confidence on the part of the prosecutor, if he needs to hedge his bets like this.
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October 11, 2009, 10:10 amPatHMV says:
I don’t see the problem here. If the defendant wants to get some benefits from accepting responsibility by pleading guilty, he shouldn’t be allowed to hedge HIS bets like this. He is admitting UNDER OATH that he committed the crime to which he is pleading guilty. There’s no need for a “do-over” provision for any reason at all.
Now, if the defendant wants to enter a “best interests” or Alford plea, in which he admits only that he agrees that the state would prevail at trial, but not that he was actually guilty, then certainly such a waiver could not be required in such circumstances.
But to allow a defendant to get a lighter sentence because he agrees to accept responsibility for his actions (by admitting them under oath) while letting him cross his fingers and hope that DNA will one day give him a “do-over,” is farcical.
The time to contest the facts of the case is at trial. Defendants shouldn’t be allowed to game the system by admitting guilt, waiting 10 years, then claiming if only this one test had been run, he wouldn’t have admitted under oath that he committed the crime.
I have no problem with Project Innocence and efforts to use DNA to ascertain guilt or innocence using new scientific techniques which were not available at the time. But I’m beyond skeptical about efforts to undo guilty pleas.
Remember, defendants get a benefit from pleading guilty. If they want to take it back, for ANY reason, then they need to give up the benefit they obtained. If they want to preserve the right to DNA testing down the road, then let them ask the judge to impose two sentences... a lighter one for the unconditional plea which can’t be undone (because the defendant is accepting his responsibility for real) and a heavier one which would be the result of the normal process. Then, if he ever wants to challenge his plea, he must first accept the longer sentence, which will be implemented while his challenge is under way, and which will stay in place unless his challenge results in his acquittal.
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October 11, 2009, 10:32 amcorneille1640 says:
I agree with 11-B/20.B4. Isn’t the role of the Justice Department to seek the truth and not merely convictions or guilty pleas?
I don’t know enough about DNA evidence, and I suspect its exculpatory value is less strong than some seem to suggest. Still, if a case arises where it might help, even after the fact, why not allow people to use it?
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October 11, 2009, 10:34 amPatHMV says:
Alternatively, the defendant could be required to plead guilty to perjury in the plea allocution before he can proceed with a later DNA challenge to his conviction.
Corneille.... the question is why should we allow people who state under oath that they actually committed the crime to later be able to say “no, I didn’t really do it, I was just saying that to get a lighter sentence.”
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October 11, 2009, 10:36 amMartinned says:
@PatHMV: Are there any (constitutional) rights that the defendant may not waive and/or that the prosecutor/government may not bargain for? In a jurisdiction that lets felons vote upon release, may the prosecutor bargain for the defendant’s promise never to vote again? How about a bargain that lets the government do unlimited at-will cavity searches for the rest of his life, quite apart from the law regarding release on parole?
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October 11, 2009, 10:37 amMartinned says:
Because it’s the truth?
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October 11, 2009, 10:38 amPatHMV says:
Martinned... if it’s the truth, why did the defendant lie under oath and say that he did it? Yes, yes, to get a lighter sentence. But is that a reason which the judicial system should agree is a legitimate reason to lie under oath?
There’s an actual reason why prosecutors and judges give more lenient sentences to those who plead guilty... because people who admit their guilt and take responsibility for their actions are less likely to reoffend than the psychopath who refuses to acknowledge that he’s broken the law and hurt people. While it sometimes may have the effect of encouraging an innocent person to plead guilty to something he didn’t do, that is not what prosecutors are seeking and that is certainly not why the courts generally impose a lighter sentence on guilty pleas than on convictions after trial.
As for your other question, don’t be asinine. The question here is not unrelated rights, but whether you can require a person ADMITTING UNDER OATH that he did a particular action which constitutes a crime to give up the right to come back later and say “nah, fingers crossed, didn’t mean it.” Personally, I don’t see why a waiver is even necessary, as I think that you shouldn’t be allowed to do that, period.
If you admit under oath that you did something, then as far as I’m concerned, you did it. Don’t like that? Then don’t admit under oath that you did terrible things that you didn’t really do. Plead nolo contendere or make a best interests plea, in which you don’t admit under oath that you did it.
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October 11, 2009, 10:45 amcorneille1640 says:
My reasoning is that a citizen, when facing the disproportionate power of the state, should have the right to prove his innocence if he is innocent. Incarceration of an innocent person offends my sense of justice.
Even if he has pled to a reduced sentence, maybe he had very poor representation and that’s the best he could’ve come out with. I don’t know, but I dislike the idea of an innocent person being in jail. My understanding is that the state, as well as the defendant, benefits from guilty pleas because it is saved the expense of trial.
Now, you raised the point of perjury. I guess you’re right. I’d oppose prosecuting someone in such an unfortunate situation with perjury, but I suppose you’re right: the unfortunate person who really is innocent and who pled guilty because he had no other options did commit perjury. (I’m not a lawyer, but I assume you’re right.)
I guess this does not really answer your question and it probably sounds like circular reasoning (because it is circular reasoning), but there I am: I believe in objective innocence.
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October 11, 2009, 10:47 amPatHMV says:
Seriously. The lighter sentence is generally really based on acceptance of responsibility for pleading guilty, not just the whole saving the state the hassle of the trial idea. If there’s an offer on the table for a lighter sentence just to save the cost of the trial, then neither the prosecutor nor the judge should object to the defendant making a “best interests” plea. To the extent that the prosecutor or the judge is unwilling to accept such a plea, to me that’s an indication that they only want the guilty plea if the person really truly admits that he is guilty.
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October 11, 2009, 10:49 amcorneille1640 says:
I’m sure you’re right about the theory of the matter. But I find it hard, in a common-sense way, to reconcile the notion of “acceptance of responsibility for pleading guilty” with not having done the crime. But yes, I suppose an accused person who is innocent is hampering justice and the truth by not insisting on a full trial or on one of the other alternatives you mention.
Still, my understanding of how things work is that the defendant, when faced with the power of the state, is primarily charged with protecting his own interests (even though he may not be untruthful) while it’s the prosecution’s job to seek the truth. If that’s not how things work, then I believe that’s how it should be.
I do see your point. I guess where we differ is how much dishonesty we’ll tolerate and by whom. It offends my sense of justice to see an innocent person do time for a crime he didn’t commit, even if by pleading guilty he committed perjury. I’m willing to accept a world where that instance of perjury is not punished in order that what I see as the better outcome happens.
You’re not wrong, at least not in my opinion; you just seem unwilling to make the compromise that I’m willing to make.
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October 11, 2009, 10:59 amPatHMV says:
I dislike the idea of an innocent person being in jail, too. But I also really dislike the idea that somebody can perjure himself with no consequences. Admitting that you did something is objective evidence that you are objectively guilty. It’s not conjecture at that point.
Since you’re not a lawyer, let me back up and explain what I’ve been talking about with the idea of the “Alford” or “best interests” plea. Most of the time, people who plead guilty are required to admit, under oath, that they are in fact guilty. Perhaps you’ve seen episodes of Law and Order where the prosecutor reads the “factual basis” for the guilty plea into the record, and then the defendant agrees that yes, that is what they did. This is required, in part, to insure that the waiver of all the rights to trial (which are inherent in the guilty plea) are knowing, intelligent, and voluntary. Along the way, the defendant must acknowledge that he is not under the influence of drugs or alcohol, that he is aware of his rights, that he’s had time to consult with his attorney, that any “deals” have been disclosed on the record, and (most importantly, to me) that he is doing this because he is, in fact, guilty of the crime charged.
The law recognizes, however, that sometimes people do wish to plead guilty simply because they agree that the state’s case against them is so strong that the state will win at trial, even though they don’t actually agree that they are guilty. The law then allows them to plead (if the court is willing to accept it) nolo contendere (I don’t contest), or to plead guilty with a “best interests” plea. When that happens, the court doesn’t require the defendant to admit, under oath, that he did the crime. He admits only that he agrees that the state would prevail at trial, and thus he believes it is in his best interests to plead guilty.
Now obviously this causes concern on the part of those interested in justice. We don’t WANT innocent people to plead guilty in return for a lighter sentence for something that they didn’t actually do. So the system is pretty loaded up to force the defendant to not admit guilt unless he really did it, and judges don’t really like accepting “best interests” pleas.
And that’s the bottom line. There’s already a mechanism to plead guilty while preserving your claim that you are innocent. I agree that in such cases, no waiver of any rights can or should be required. But if the defendant is unwilling to sign a waiver such as this, then it means one of two things. Either (1) he is really wanting to make a “best interests” plea because he isn’t really guilty, or (2) he is trying to game the system, hoping that even though he is really guilty, he may later be able to find some DNA hook to con people into believing he’s innocent. In both cases, some fraud is being perpetrated on the court if he refuses to sign a waiver.
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October 11, 2009, 11:01 amStormy Dragon says:
A larger issue that needs to be addressed here is why innocent people feel compelled to plead guilty to begin with. The reason is that our current system is set up under the premise that people who choose to exercise their right to trial need to be punished for doing so at sentencing. I’d argue that policy is incompatible with due process and needs to be reformed.
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October 11, 2009, 11:03 amMartinned says:
You mean apart from being locked up for something he didn’t do?
It’s called the defence of duress. Someone (in this case the government), threatens to lock you up for life unless you agree to commit the crime of perjury and agree to be locked up for 10 years. If that’s not duress, I don’t know what is.
Either way, if you want to prosecute the guy for perjury, go ahead, but that doesn’t mean he should be locked up for something he didn’t do.
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October 11, 2009, 11:11 amPatHMV says:
Stormy... you don’t think that anybody who accepts responsibility for their actions deserves to be rewarded a bit with a lesser sentence? There’s no legitimate distinction, for sentencing purposes, between the guy who acknowledges that he’s done wrong and the guy who says “screw you” to everybody, forcing the state to spend considerable resources to prove his (obvious) guilt, putting the victims of the guy’s crime through further stress and turmoil?
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October 11, 2009, 11:12 amMartinned says:
Which brings us back to my beloved case of United States v Cobb:
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October 11, 2009, 11:14 amMartinned says:
Sure. But the discount can’t be so serious that it creates an incentive for innocent people to confess. If you estimate you have a 50/50 chance at trial, even though you’re innocent (the classic case of black guy accused of murdering a white girl in a white county), and the prosecutor offers you 75% off for a guilty plea, something is wrong. (In fact, with 75% off, you could estimate even better odds at trial and still take the deal.)
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October 11, 2009, 11:17 amArthurKirkland says:
We should recall, in apportioning outrage in this context, that prosecutors arrange the conviction of the innocent far too often. Whether they do this by incompetence or knowing misconduct is difficult to gauge, but the sole circumstance in which DNA evidence could assist a defendant is one in which the prosectuor failed miserably. Some prosecutors, apparently, prefer to avoid illumination of those circumstances (and, consequently, to have their mistakes sit in prison or die by lethal injection rather than be inconveniently revealed to the world).
I am at least as bothered by prosecutors who use the power of the state to browbeat citizens into unjust guilty pleas as I am by innocent persons who, newly able to prove that the prosecutor secured an unjust conviction, wish to benefit from the new circumstance.
But I’m also inclined to accept the argument that it would be unconstitutional to execute a person whose factual innocence has been established after a procedurally correct prosecution has generated a conviction.
I recognize that my preferences are not universally accepted. I guess some people are more statist than others.
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October 11, 2009, 11:18 amcorneille1640 says:
PatHMV:
Thanks for taking the time to explain things. If I’ve learned anything, it’s that the issue is much more complicated and nuanced than I believed before.
I’m still skeptical that people who cannot afford good lawyers are realistically able to avail themselves of the nolo contendere or “best interests” options, and I also suspect, without knowing, that the waiver of rights and the requirement that people state under oath are more pro forma than not. Of course, I might know better if I were actually a public defender or a prosecutor who encounters this issue regularly.
I might reiterate that I suspect–again, without knowing–that few people ever get guilty pleas reversed and that the exculpatory value of DNA evidence might not be all that it’s cracked up to be (i.e., I simply don’t know how DNA evidence demonstrates, for example, that someone didn’t commit a crime).
But again, thanks for your explanations.
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October 11, 2009, 11:18 amCDU says:
Because, like it or not, that’s the way our system works in practice. Plenty of innocent people plead guilty because they’re unlikely to win at trial.
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October 11, 2009, 11:23 amPatHMV says:
Martinned... we already have a protection for that, it’s the “best interests” plea. Let the guy make one of those, instead of an “I really did it” plea.
And yes, there is some coercive influence going on. It exists, and there’s nothing really that can be done to eliminate it. But prosecutors and judges really don’t want that to happen. No prosecutor I ever worked with wanted a guilty man to plead guilty to something he didn’t do. He only wanted the guy to plead guilty if in fact he did do it. What better way, given the realities of the situation, to equalize the coercive pressures by also imposing a consequence on the guy for falsely admitting guilt? If the defense lawyer can say “Hey, not only do you only get a 10 year sentence, instead of life, if you plead guilty, you can STILL try to challenge your conviction with DNA testing next year.” Doesn’t that make it even easier for the defense lawyer to convince the guy that he should “take the deal,” even though he’s not really guilty?
And the government is NOT threatening to “lock you up for life.” In fact, the government is only threatening to take you to trial before a jury of your peers, to follow the same process which would be followed unless you admit your guilt. It’s not a choice of “life or 10 years,” it is in fact a choice of “take your chances at trial or 10 years.”
If the waiver is no longer available, I as a prosecutor would be much more resistant to taking a plea deal (which, in the overwhelmingly vast majority of cases would be AGAINST the interests of criminal defendants). If I take a plea which can be overturned, then I’ve never built a trial record which can be used on appeal, or if a retrial is necessary. I haven’t been able to put witnesses under oath, finalize scientific testing reports, you name it. If the defendant in 10 years puts in DNA evidence which results in his guilty plea being vacated, then suddenly I have a 10 year old case to try to put together evidence for a retrial on, when there was never a trial to begin with. The vacating of the guilty plea becomes, in fact, a complete release and a practical bar on ever taking the case to trial.
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October 11, 2009, 11:24 amMartinned says:
@PatHMV: The problem with your argument is that it is all predicated on the defendant having decent counsel, so that he can make a rational decision, fully informed of his options. (Not to mention so that he has a low chance of being convicted if he’s actually innocent.)
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October 11, 2009, 11:29 amCDU says:
Well, as long as we’re speculating about fundamentally reworking our justice system, how about getting rid of guilty pleas and always forcing the government to prove it’s case at trial?
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October 11, 2009, 11:33 amPatHMV says:
“Plenty,” CDU? Got some statistics on that? The jails are certainly full of people who CLAIM that they’re innocent, but that’s a very different thing.
Let’s also look at this as a question of resources. It takes time and money (including a lot of attorney time) to go back and get DNA testing on these cases. Even in the best-case scenario for defenders of this concept, the overwhelming majority of incarcerated folks seeking this testing will be guilty, and simply hoping that something will get screwed up in their favor (if you doubt this, we can find a large stack of pro se habeas petitions for you to read). I’ve served on a state commission writing post-conviction DNA testing procedures before... it’s very difficult to weed out the unmeritorious cases from the meritorious ones without doing a fair amount of investigative work, even before you get to the testing itself.
Are those resources best used towards trying to identify and release those who confessed their guilt under oath or would they be better served if they were put towards the initial criminal defense to begin with? The reality is that the legal work required for this post-admission-of-guilt testing would be done either by a public defender’s office, an organized project like Project Innocence, or some private attorney who is drawn to the case on some pro bono basis. Wouldn’t it be a better use of those resources to help provide a higher quality of representation to the defendant on the front end, rather than after he’s spent 5 years in jail?
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October 11, 2009, 11:34 amPatHMV says:
CDU, who proposed fundamentally reworking our criminal justice system? It’s not a reworking to say that a guilty plea is a guilty plea and can’t be made with your fingers crossed.
If your proposal to require trials in all cases were adopted, who would that benefit? Are you saying that all those innocent people out there who plead guilty to avoid a harsher sentence after trial are betting wrongly? That if they went to trial, they would be acquitted? Because if they and their counsel are correct in believing that they would be convicted, the result for them would be the same under your proposal.
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October 11, 2009, 11:37 amBart DePalma says:
This is pretty standard policy across the country. Colorado requires the police take DNA samples like they do finger prints for a wide array of crimes and standard plea forms have a paragraph where the defendant agrees to waive all privacy objections to the state’s retention of the DNA sample.
I am a criminal defense attorney and I cannot see a fundamental difference between a DNA sample and fingerprints or a photograph.
The whine about plea offers denying defendants the ability to prove their innocence is nonsense. In reality, if there was no evidence of guilt, I would have already convinced the prosecutor or a judge to dismiss the case before we even started plea negotiations. I enter plea negotiations when there is evidence a jury could use to convict my client and I am looking for a compromise sentence for my client to consider in case he wants to avoid the risks of a trial of his peers. Before any of my clients enter a plea, I fully review the pros and cons of going to trial with them so they can make an intelligent decision.
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October 11, 2009, 11:41 amMartinned says:
Well, my response to the Cunningham story was that if the criminal justice system can’t be trusted not to screw things up like this, than maybe they should have less power. If the fallibility of the system turns out to be greater than expected, the logical response is to reduce the statutory maximum penalties, so that the damage done in case of error is reduced.
Then again, as long as we’re making proposals for big reforms: why not get rid of juries so that the actual professionals can try the case? That would also allow for a simplification of the rules of evidence, thus improving the chance that the truth will actually come out at trial.
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October 11, 2009, 11:44 amMartinned says:
Because you are just that good? Perry Mason incarnate?
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October 11, 2009, 11:45 amCDU says:
The Innocence Project
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October 11, 2009, 11:46 amPatHMV says:
Bart, it’s not a waiver to allow the taking of DNA samples. It’s about a 2004 Act which allows for post-conviction DNA testing in federal cases. The law didn’t make a distinction between guilty pleas and convictions at trial, and so anybody, even those who plead guilty, can seek post-conviction relief involving DNA evidence. At the behest of the Bush Justice Department, apparently, the law included a provision allow the defendant to waive his rights for post-conviction testing under the law, if he pleads guilty.
I agree with you that most criminal defense attorneys, even those in public defender offices (especially federal ones) do a decent job of explaining the risks and benefits of various options.
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October 11, 2009, 11:48 amStormy Dragon says:
PatHMV:
First of all, I reject the notion that an actually guilty person accepting a self-serving plea deal constitutes a genuine acceptance of responsibility.
Secondly, I reject the notion that merely insisting on a trial constitutes saying “‘screw you’ to everybody”. That attitude is precisely the one I’m concerned about: that anyone wanting a trial must be screwing with us and needs to be screwed back.
I suppose it comes down to how much confidence you have in the grand jury and trial process. If you believe (as you apparently do) that innocent people are rarely indicted and that trials rarely reach the wrong verdict, then it’s easy to believe that:
1. The defendant is, a priori, obviously guilty. Thus his victims are best served by getting things over with as soon as possible and the state is best served by doing so with a minimum of expense.
2. Trials are largely symbolic and thus refusing to waive trial is just a pointless exercise intended to waste time and money and to make the victims suffer.
3. A guilty verdict just futher proves conclusions 1 and 2
If, on the other hand, you think (as I do) grand juries and trial juries are frequently wrong, then you are more likely to conclude:
1. We don’t know if the defendant is guilty or not. Both victims and the state are best served by making sure we got the right person.
2. Trials are an important part at doing so and should not be casually eliminated from the process.
3. A guilty verdict alone does not prove the trial process a waste, so people should not be punished purely for insisting on one and failing to be acquitted.
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October 11, 2009, 11:55 amStormy Dragon says:
Except that the plea deal is invariably contingent on allocuting to the crime, so while the defendent could theoretically make a best interests plea, in practice that option isn’t open.
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October 11, 2009, 12:00 pmPatHMV says:
Martinned... You folks in Europe are welcome to your professionals and their greater degree of infallibility than ordinary mortals. Over here, we’re pretty happy with the protections we’ve been given. There will come a time when you will be wishing that you had put less faith in “professionals,” once those professional positions are occupied with people who don’t do things like you want them to do. Right now, your professional class is occupied by people who mostly share rather liberal political views, and act accordingly. If that changes, if Jean Marie Le Pen’s people, for example, ever get smarter and start infiltrating the professional ranks, then you’re going to discover that “professionals” are no more guaranteed to get it right than ordinary old folks like the ones who serve on American juries.
Out of curiosity, which confusing evidentiary rules would you simplify? Allow the professional judges to consider hearsay evidence? Allow them to consider past crimes by the defendant in determining guilt of the current charge? Or would you only allow the defendant to offer hearsay testimony, not the government?
CDU... reliability of confessions is an entirely different issue. The stat you cite lumps in incriminating statements, confessions, and guilty pleas. I’m not defending our overreliance on questionable interrogation tactics, and would certainly be open to allowing defendants at trial to provide some scientific evidence of the unreliability of confessions... providing that the defendant is willing to take the stand. I would also like more and better training of police as we gain a better understanding of which interrogation tactics run a significant risk of obtaining false confessions and admissions. But we’re talking her about guilty pleas by individuals in open court, represented by counsel, taken before a judge.
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October 11, 2009, 12:00 pmPatHMV says:
Stormy... when the defendant makes a “best interests” plea, he simply agrees that the prosecutor would be able to prove the facts alleged in the allocution at trial, not that those facts are true. In fact, “best interests” pleas are not unheard of. They are somewhat uncommon, because prosecutors, judges, and defense counsel are all concerned that a “best interests” plea means that they’re about to put in jail a man who maintains his innocence, and they’re properly loathe to do that.
And while we’re clearing up misconceptions, let’s back up and point out that going to trial does not always result in a much harsher sentence. Sometimes it does, but I’ve seen plenty of times where the sentencing judge saw that there was a reasonable basis for going to trial, and gave the defendant the same penalty which would have been given up front (many pleas, by the way, do not come about through any particular “deal”) with a guilty plea. It’s when the evidence is painfully clear that the defendant had no hope of prevailing at trial that judges tend to get perturbed at their docket being clogged unnecessarily by defendants with no remorse at all for their actions.
Stormy, anybody who wants a trial can have one. It’s a constitutional right. Find me a prosecutor who offered a generous plea deal because they wanted to coerce an innocent man to plead guilty, and I’ll help you throw him in jail.
And if you think that trial juries frequently get it wrong (as you say you do), then why do we give them any greater reverence than a plea, and why should we encourage more of them?
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October 11, 2009, 12:08 pmStormy Dragon says:
Speak for yourself, PatHMV. There are a lot of us over here who are most decidely not happy with the protections we’re given.
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October 11, 2009, 12:10 pmPatHMV says:
Do you want “professionals” (i.e., government-hired judges or investigators) to increase your protections, Stormy? That’s what Martinned wants; that’s the way they do criminal trials in Europe.
I want to point out that it’s rather common in drug crimes for the defendant to enter a plea conditioned on the outcome of a challenge to the admissibility of some police search. This allows the defendant to continue challenging the admissibility of evidence seized (say, during his arrest, when they found the drugs in his house), while forgoing the expense (all the way around) of a full-blown trial.
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October 11, 2009, 12:17 pmShelbyC says:
Any allocution where there is a significant reduction in penalty in exchange is a farce. Many people are faced with the choice of pleading guilty and getting probation, and risking a few years in jail. This is ridiculous. There are exactly zero situations where “accepting responsibility” justifies this type of disparity. If someone deserves to be locked up, lock him up. If he doesn’t, don’t put him in jepordy of being locked up.
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October 11, 2009, 12:19 pmSyd Henderson says:
I was reading recently about the Pitchfork case, which was the very first case in which a suspect was exonerated due to DNA evidence, and also the first in which a suspect (Colin Pitchfork, not the exonerated person) was convicted by DNA evidence. The innocent suspect had actually confessed to the murder of Dawn Ashworth and it was a big surprise when it was found that he hadn’t killed her.
If Richard Buckland had waived his right to DNA testing, Colin Pitchfork could have been free to kill more children.
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October 11, 2009, 12:22 pmSuperSkeptic says:
I’m disappointed in you, Pat. Besides, judges are not obligated to grant pleas — let alone Alford pleas. There is a reason 98% of defendants charged in federal court enter guilty pleas. The pressure is obvious and notorious.
In that case, the question is why should we allow prosecutors to overcharge defendants for crimes at the outerbounds of what the law prescribes simply so that their resulting plea agreement is actually the accurate and just.
Pat, it really doesn’t make sense to be so hung up on the defendant pleading UNDER OATH. Pleading is generally accepted as a fiction for purposes of the legal process. When is the last time you saw a perjury charge against a convicted defendant who pled NOT GUILTY?
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October 11, 2009, 12:25 pmStormy Dragon says:
I understand the idea. But a person can only make a “best interests” pleas if the prosecuter is willing to let him do so under the plea deal. Which the prosecuter isn’t going to agree to. So an innocent defendant is stuck with the choice of going to trial with dozens of charges the prosecutor shotgunned at them in hopes of making something (anything!) stick or perjuring themselves to accept a plea deal. If the say “I’ll accept the plea deal, but only as a best interests plea” the deal will no long be available.
No, they’re somewhat uncommon because they don’t help pad the prosecuters stats, so that have an strong incentive to refuse to agree to them.
Right off the top of my head, the prosecutor in Pottawattamie County et al. v. McGhee. But we can’t even decide if he can be sued, much less the laughable idea he’d actually be prosecuted for misconduct.
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October 11, 2009, 12:25 pmDNA Testing Waivers: Are They Legitimate? « The View From LL2 says:
[...] Waivers: Are They Legitimate? October 11, 2009 A recent article in the Washington Post (via Volokh), discusses a Bush administration policy that requires defendants to waive their rights to [...]
Dave N says:
Stormy Dragon,
If you aren’t happy, don’t let the door hit you on your way out.
Seriously, PatHMV is speaking as an experienced prosecutor, and one with particular experience in both trial and post-conviction procedure. The people disagreeing with him/her are mostly speaking out of their hats.
Bart DePalma, the criminal defense attorney who spoke up supporting Pat, was sneeringly asked if he was Perry Mason for making his professional observations. I realize that many in the law look down at those, such as Pat, Bart, and myself who practice criminal law.
I can tell you that Pat’s comments are right on. But then I guess those who disagree will sneer at me for being a prosecutor and of course wanting innocent people to be or remain incarcerated.
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October 11, 2009, 12:28 pmDave N says:
Stormy Dragon,
You are wrong. While a prosecutor might be able to prevent a defendant from making an Alford plea, nothing prevents a defendant from pleading “no contest,” even without a plea bargain.
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October 11, 2009, 12:30 pmtarheel says:
PatHMV, I can understand your stance concerning a guilty plea that turns out to be untrue. I would feel better about taking a hard line and calling it perjury if prosecutors had some real accountability when they get it wrong (plea or no plea).
Instead, with a carefully constructed scheme of virtually bullet-proof immunity, various waivers signed under situations that most would call duress, and, of course, judges who overwhelmingly come from the ranks of former prosecutors, prosecutors have very little external motivation to care about actual guilt or innocence. The conviction stats are what matter. So when a defendant protests his innocence, the prosecutor rolls his eyes and threatens him with much harsher sentences if he does not confess. No wonder most defendants, especially those without a decent attorney and resources, will sign whatever the state tells him to sign and say whatever they tell him to say.
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October 11, 2009, 12:30 pmSuperSkeptic says:
So much for that presumption of innocence, Pat.
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October 11, 2009, 12:31 pmbyomtov says:
Now obviously this causes concern on the part of those interested in justice. We don’t WANT innocent people to plead guilty in return for a lighter sentence for something that they didn’t actually do. So the system is pretty loaded up to force the defendant to not admit guilt unless he really did it, and judges don’t really like accepting “best interests” pleas.
This sounds to me like your solution is not so easy to adopt as you claim. The defendant is coerced out of making a “best interests” plea, the judge doesn’t want to accept it, etc.
There’s already a mechanism to plead guilty while preserving your claim that you are innocent. I agree that in such cases, no waiver of any rights can or should be required. But if the defendant is unwilling to sign a waiver such as this, then it means one of two things. Either (1) he is really wanting to make a “best interests” plea because he isn’t really guilty, or (2) he is trying to game the system, hoping that even though he is really guilty, he may later be able to find some DNA hook to con people into believing he’s innocent. In both cases, some fraud is being perpetrated on the court if he refuses to sign a waiver.
Why is a defendant who wants to enter a “best interests” plea and refuses to sign a waiver perpetrating a fraud on the court? I don’t follow your argument. Suppose the defendant is innocent, recognizes that he is likely to be convicted, and asks to enter a “best interests” plea. He is refused, and decides he will be best off pleading guilty. I see no fraud, only coercion.
No prosecutor I ever worked with wanted a guilty man to plead guilty to something he didn’t do.
I suggest that the set of prosecutors you worked with, and the cases involved, are quite a small sample. Serious prosecutorial misconduct including tolerating, or even encouraging, perjury, is not exactly unheard of.
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October 11, 2009, 12:35 pmDave N says:
SuperSkeptic,
Here’s a news flash. When someone has pleaded “guilty” the presumption in the law is that they are, in fact, “guilty.” They are no longer legally “innocent.”
Pat hasn’t conflated the presumption of innocence. Instead, you are clearly demonstrating you do not understand what the presumption means.
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October 11, 2009, 12:38 pmDave N says:
Ah, so you dispute evidence from Pat because it is from a small subset and, instead, accept anecdotal evidence, which has no evidentiary support at all.
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October 11, 2009, 12:40 pmMartinned says:
Having studied law here in Europe, the concept of having evidence as a separate subject was entirely unknown to me. Evidence can be thrown out if it is unlawfully obtained, if that is necessary to protect the defendant’s right to a fair trial, but otherwise anything that is even vaguely probative is in.
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October 11, 2009, 12:40 pmStormy Dragon says:
Yes, yes, my country, right or wrong. Eef you don’t like eet, then you can GEET AWT!
USA! USA! USA!
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October 11, 2009, 12:42 pmMartinned says:
Here in the Netherlands, felony trials are before a panel of three judges, with a (full) appeal to a five judge court of appeals. In France, a felony (they have three categories) trial is before a jury, but with an appeal to a different and larger jury. Personally I don’t like juries, but there are certainly ways to make it work better than it currently does in the US.
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October 11, 2009, 12:45 pmStormy Dragon says:
For one, the voire dire process needs to be reformed. It’s largely come down to quizzing people about their political and philosophical views in hopes of getting people who are a rubber stamp for the prosecution/defense rather than people who will impartially weight the evidence.
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October 11, 2009, 12:54 pmJakeCollins says:
Shorter PatHMV: If innocent people go to jail, f*ck ‘em.
It’s attitudes like this that have resulted in hundreds of innocents executed. Maybe he should try out for the Texas Supreme Court, since he obviously has some “kill the innocent” fetish.
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October 11, 2009, 12:56 pmShelbyC says:
But isn’t this just an unavoidable byproduct of giving people such strong incentives to say they committed the crime in order to give people a lighter sentence?
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October 11, 2009, 12:56 pmModa says:
So what about the states where Alford pleas are limited or expressly prohibited? Where’s the protection there?
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October 11, 2009, 12:59 pmMartinned says:
Actually, my no. 1 suggestion would be to find a way to allow appeals to jury verdicts, like in France. Because that isn’t currently possible, US criminal litigation can end up with endless collateral review, to shave the rough edges off the no-appeal-of-jury-verdicts rule, for example by allowing a later court to find ineffective assistance of counsel. I strongly suspect that’s why there is no other country where there is habeas review of criminal verdicts.
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October 11, 2009, 1:02 pmMahan Atma says:
For the most part, there’s no such thing as an Alford/no-contest plea in federal court.
If there were, I can pretty much guarantee you that every DOJ policy (including the DNA waiver policy) would treat it identically to a guilty plea.
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October 11, 2009, 1:04 pmShelbyC says:
A question for PatHMV: Take someone who is required to allocute in order to receive probation instead of, say, a five year sentence, and falsely allocutes. The person goes on with his life and doesn’t challenge his conviction. Later, irrefutable evidence turns up that he is innocent. Should that person be procecuted for perjury?
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October 11, 2009, 1:09 pmDavid Nieporent says:
Come on, let’s not be naive. If that’s a reason why people who plead guilty get more lenient sentences, it’s about #100 on the list of reasons. The main reasons why they give more lenient sentences is to encourage them to plead guilty because (a) the government has neither the time nor money to try all the cases it brings, and (b) there’s always a risk at going to trial, whereas a settlement provides certainty. Lower down on the list is to encourage defendants to provide testimony against others.
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October 11, 2009, 1:09 pmBob from Ohio says:
BS. You can’t point to more than a handful, if that. Out of thousands of executions.
And how would this DNA waiver ever affect the death penalty? Or do you think that murderers plead guilty and still get death? Not much of a “bargain” if so.
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October 11, 2009, 1:10 pmMark Field says:
Prof. Hadley Arkes has argued that the 5th A requires this. It’s an interesting argument, at least. See here.
PatHMV, I’m not sure I understand your argument about perjury. If the defendant pleads guilty even though he’s innocent, he serves time. Isn’t that time served itself a punishment for the perjury (assuming a plea constitutes perjury — that’s not entirely clear to me).
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October 11, 2009, 1:12 pmDave N says:
I’m a state prosecutor, so you may be right, though I remember that Spiro Agnew pleaded “no contest” in federal court.
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October 11, 2009, 1:17 pmMahan Atma says:
Depends on what you mean by “innocent”. Defendants are frequently sentenced to death without being guilty of a death-appropriate crime.
Capital trials are bifurcated into two phases — the guilt phase, and the penalty phase. It’s quite common for a defendant to be guilty of the crime charged, but not deserving of the death penalty. But they are often sentenced to death anyway, because their attorneys are either too incompetent or too resource-deprived to put on a decent mitigation defense.
(Mitigation is extremely expensive and time-consuming, because it requires re-constructing the defendant’s entire life. You need many hours from investigators, psychiatric/neurology experts, etc.)
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October 11, 2009, 1:19 pmMahan Atma says:
^^^ BTW, that’s an aside from the DNA waiver argument; I just wanted to point that out, because people often have a simplistic idea of what it means to be “guilty” of a capital crime.
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October 11, 2009, 1:20 pmSuperSkeptic says:
Let’s try this one more time.
Pat said, in relevant part:
forcing the state to spend considerable resources to prove his (obvious) guilt, (emphasis added).
Not quite a newsflash Dave, but when somebody, say a defendant, has to go through a criminal trial where, using Pat’s words, “[the state is forced] to spend considerable resources to prove his (obvious) guilt” — that person is not yet proven guilty — until the jury of their peers returns the verdict. In fact, we play this justice game under the presumption that the person is innocent until that time. I have misunderstood nothing.
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October 11, 2009, 1:20 pmdcuser says:
I suspect that almost everyone here is missing the point. The main burden on the state — and the reason why the government asks for waivers — is not from testing itself, but rather from having to securely store all of the evidence for decades past the point of conviction.
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October 11, 2009, 1:31 pmMahan Atma says:
I said “for the most part”. As far as I know there’s no rule against it, but it is extremely rare for a judge and prosecutor to accept it as part of a plea deal (and more so in modern times).
Furthermore, it will be treated as 100% identical to a guilty plea.
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October 11, 2009, 1:32 pmfirst history says:
Orange County, CA has a different twist on DNA samples. If you are arrested for a non-violent misdemeanor, you can avoid charges by giving up (see also here) a DNA sample to their non-regulated database:
Maybe everyone should take advantage of their rights and demand a fair trial, rather than assist government in its collection of private information.
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October 11, 2009, 1:33 pmMahan Atma says:
See Federal Rules of Criminal Procedure 11(a) and 11(b). The rules anticipate a plea of nolo contendere, but a Westlaw search shows that it rarely happens. The judge has discretion to reject it, and it is treated as an admission to the facts underlying the crime.
See also 1A FPP Section 175 for cases in which it was accepted or refused.
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October 11, 2009, 1:46 pmShelbyC says:
Well, in the case of an innocent defendant, this is indeed farcical, but I’m not sure that cuts on the side you say it does.
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October 11, 2009, 1:57 pmPintler says:
Even for this hypo: the prosecutor lays out the evidence. The defense atty tells the defendant he will probably be convicted. It’s a capital case. The prosecutor will agree to life without parole in exchange for a guilty plea. The defendant agrees.
Later, the crime lab is doing an audit and finds out their technician wasn’t actually comparing prints, he just spent all day surfing porn sites, and the forensic evidence clearly excludes the defendant.
You think the defendant should serve out his term? Be prosecuted for perjury?
Secondly, how often do people request DNA testing and the testing indicates they are in fact guilty? What’s in it for them?
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October 11, 2009, 1:58 pmDuracomm says:
PatHMV,
How about a trade.
If the prosecutor asks the defendant to waive his rights to a DNA review, the prosecutor is required to waive his right to Absolute Prosecutorial Immunity.
After all if the prosecutor wants to get some benefits from setting up a plea bargain, he shouldn’t be allowed to hedge HIS bets using Absolute Prosecutorial Immunity .
If the prosecutor is so confident in his case that he won’t allow a DNA review he should be confident enough to waive his immunity.
As things currently stand prosecutors are given an immense amount of power with zero real risk to themselves if they abuse that power.
Innocence Roundup
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October 11, 2009, 1:58 pmDave N says:
Actually, in my jurisdiction the only difference between a “no contest” and a guilty plea is that the “no contest” plea cannot be used in subsequent civil litigation for the same conduct.
However, I do see the utility of its use as Pat did–a person not saying “I did it” but rather “I’m afraid the State could prove it.” This puts such a plea in a different posture from a guilty plea where a defendant is required to allocute the facts necessary to support a conviction.
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October 11, 2009, 2:00 pmGene Madison says:
I believe this is one of the reasons for the clause — no person shall be a witness against himself. It prevented (or was suppose to) prosecutors from using fear tactics, and coercion to get a conviction... When faced with 1 year Prison for something you didn’t do, or 20 yrs if jurors believe you are guilty... They will choose to take a plea bargain, and often times, prosecutor has no case.
If anything, the ‘confession’ should only effect your sentencing when it is given without any guarantee’s. Otherwise, it’s not a Justice system, it’s a Political circus.
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October 11, 2009, 2:04 pmSuperSkeptic says:
I have a proposition for a brand new program for the Board of Supervisors and the District Attorney of Orange County; one that might be of particular interest to Superisor Chris Norby and Chief Sorrell. It could also be run “informally” so that the expeditiousness of the project is a benefit to all. When a man is charged with a felony (since they already have a project up and running for non-violent misdemeanors), simply dismiss the charges if his wife will agree to come in and have sexual relations with someone in exchange for the dismissal. As Chief Sorrell says, “In a perfect world, I think most of us would prefer that were someone accused and arrested for a crime, they proceeded through the criminal justice system in a more traditional sense,” ... “However, these are very difficult times, and the volume of crimes has had a huge impact on the D.A.’s office and law enforcement agencies.” It’s time they received adequate compensation for that increase in their responsibilities due to the increase in crime during these very difficult times. There will be no need for a guilty plea. And as the exclusionary rule operates as a deterrant to law enforcement, this program would serve as a significant deterrant to the growing criminal class. Susan Kang Schroeder should love this proposal as well because, “It’s completely voluntary, so no one has to do this,” and because “There’s consequences when you commit a crime. This is actually a better option for them than other avenues of, I guess, going through the penal process.” Mr. Norby in particular might see the advantages of such a proposal to society as a whole because “Our judicial system gives everybody the opportunity for a fair trial,” . . . “But if everybody takes advantage of it, it’d break down. . . . No system’s perfect, but weighing the trade-offs, I think this is a positive.” I think it would absolutely be a positive too, and I urge the Board and District Attorney’s office to strongly weigh the costs and benefits of such a novel and progressive policy to further effectuate the smooth functioning of our judicial system.
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October 11, 2009, 2:04 pmShelbyC says:
But isn’t this “posture” a mere technicality unless an allocution is a greater indication of guilt than a “no contest” plea? Is there any evidence that the allocution requirement dissuades many innocent defendants?
And technicalities don’t matter in this context, since the fact of conviction makes the sentence technically correct, the purpose of the post conviction testing is to get innocent folks out of jail.
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October 11, 2009, 2:17 pmDavid Nieporent says:
I disagree with Pat here, but this is silly. It’s only “quite common” because of anti-capital punishment “death is different” judges who will use the silliest of arguments for mitigation.
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October 11, 2009, 2:21 pmDave N says:
ShelbyC,
If the allocution includes the judge asking, “Tell me in your own words why you are here in Court today.” And the defendant then tells the judge that he did, in fact, do as the indictment alleges with respect to all of the elements, then, yes, the allocution is a greater indication than a mere, “Well, I believe the State could prove its case.”
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October 11, 2009, 2:23 pmStormy Dragon says:
Not when the plea deal is contigent on the defendant making such an allocution. As it is, they’re just saying what what the prosecuter told them to say if they don’t want the book thrown at them. It’s purely theater.
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October 11, 2009, 2:34 pmDave N says:
Stormy Dragon,
Then heck. Let’s not have allocution. Let’s not allow confessions. Let’s not even let the defendant testify if he wants to. After all, in your Bizarro World, all of that is pure theater.
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October 11, 2009, 2:37 pmMartinned says:
Well, the system does seem overly focused on getting a confession and/or guilty plea, both for reasons of efficiency and for reasons of impressing the jury. Maybe a rethink isn’t such a bad idea.
(Discussing Japan in particular, Rejali argues that excessive concern with confessions is one of the three reasons democracies torture. The situation in the US is in many important respects different from that in Japan as it is discussed by Rejali, for example when it comes to how long someone can be held without being charged. Still, it is interesting to ponder whether a focus on confession is such a good idea.)
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October 11, 2009, 2:48 pmShelbyC says:
Well, the reason we don’t just let the defendant deny the crime under oath and make that determinative is because the incentives are such that there is a risk that he might falsly testify under oath. It doesn’t seem to be much of a stretch that that might work both ways :-)
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October 11, 2009, 2:53 pmShelbyC says:
And it’s always worth occaisionally mulling over the fact that the right to trial by jury is one of the few rights that you can end up in jail for exercising.
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October 11, 2009, 3:14 pmThe Volokh Conspiracy » Blog Archive » An End to DNA Test Waivers? « Blogging says:
[...] Read more from the original source: The Volokh Conspiracy » Blog Archive » An End to DNA Test Waivers? [...]
Mahan Atma says:
??
It’s the jury that decides whether the defendant gets the death penalty. (Excepting for bench trials, which are pretty rare in capital cases.)
And the defendant has a constitutional right to a mitigation defense. That right is meaningless, however, when counsel is unable to present it.
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October 11, 2009, 3:37 pmtheobromophile says:
First of all, JakeCollins, there have been only about 1,000 executions in America (state and federal, combined) since the 1970s. Your statement implies that about half of those people are innocent of the crime committed and that the real killer is still on the loose. While even a single innocent execution is unconscionable, the reason that we are aware of the innocence of the condemned is the same reason that we are unlikely to sentence an innocent person to death row again: DNA testing. I would hazard to guess that we convicted a lot more innocent people back in the day than we do now.
Second, no one pleads guilty to a death sentence. I’m unclear on how the death penalty got into this discussion.
Third: Patrick does not have a “kill the innocent” fetish. Over the past few years, I’ve had the joy of befriending him outside of the Volokh Conspiracy and have found him to be one of the most fundamentally decent and reasonable humans imaginable. He certainly doesn’t deserve to be accused of being a murderous SOB simply for providing a different, educated perspective on the issue in Prof. Adler’s post.
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October 11, 2009, 3:38 pmThe Volokh Conspiracy » Blog Archive » An End to DNA Test Waivers? | Dna testing live today says:
[...] to essay post-conviction polymer tests to establish their innocence. Read the example here: The Volokh Conspiracy » Blog Archive » An End to polymer Test Waivers? Posted in Uncategorized | Tags: dna, federal-inmates, innocence, innocence-protection, [...]
Laura(southernxyl) says:
Is there no mechanism for correction here other than the defendent asking for a retrial? If, as I have been told, the prosecutor is after justice only, why would the crime lab not go directly to the prosecutor, and the prosecutor trigger the appeal somehow? Could that never happen?
A roll of the dice. What has have they got to lose?
Here’s a scenario. Suppose a woman accused a man of rape back in the day when any unauthorized sexual activity on her part would have triggered the slut defense — see Polanski’s accuser being termed “sexually experienced” because she wasn’t a virgin, as if that had any bearing at all on his guilt. Suppose that she didn’t want to go through that, b/c her activities had nothing to do with the circumstances of her rape, so she denied having had sex with anyone else. Suppose that evidence was maintained after the rapist’s trial and conviction, and years later when DNA is available, he is found not to match the evidence — not because he isn’t guilty, but because she’d had consensual sex with someone else and screwed up the evidence. Because of her assertion that any material there must belong to him, he is assumed to be innocent. Jackpot.
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October 11, 2009, 3:59 pmDavid Nieporent says:
This is disingenuous. I’m sure this is true of most prosecutors, just as it’s true of most cops. But prosecutors and cops, yes, and judges, do want to put people in jail that they think are “obviously” guilty, regardless of the specifics. And, too many think that, well, if the person isn’t guilty of that crime, he’s guilty of others for which he wasn’t convicted, so it’s not a big injustice anyway.
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October 11, 2009, 4:10 pmDavid Welker says:
PatHMV,
If someone is guilty of perjury, then they are guilty of perjury. That does not mean they are guilty of X, the original crime they were charged with. Perjury is a serious crime, but it is often a much less serious crime than X. How does the punishment for X suddenly become the appropriate penalty for perjury, despite any statutory support? Aren’t you essentially advocating lawlessness?
I think you are making a huge difference between the plea of nolo contendere and guilty for no good reason.
Further, while many prosecutors are indifferent to whether they get a plea of nolo contendere or guilty in exchange for a lighter sentence in a plea deal, some would suddenly be very interested in that fact if the distinction suddenly had as much importance as you would like to attach to it. As a matter of policy, while before they would have accepted nolo contendere, now they will only accept guilty.
Is that really what you want?
Overall, your point of view makes little sense. Imagine the following scenario. Before arrest, if an innocent person, in the course of attempting to prove their innocence to a charge of murder, commits the crime of jaywalking, should we say then say they are guilty of murder because they committed the crime of jaywalking? That would be nonsense, right? That is essentially what you are advocating here. If someone is guilty of perjury, they are guilty of perjury. Nothing more and nothing less.
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October 11, 2009, 4:17 pmhattio says:
PatHMV says;
Pat,
What exactly are you doing to make sure Mike Nifong winds up in jail? Don’t get me wrong, I don’t think there are too many Nifongs out there, but there are some.
More damaging though than the Mike Nifongs are those who get tunnel vision and decide this person must be guilty. Those, unfortunately exist in spades in the prosecution ranks. Hell, I’d say they make up well over 1/2.
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October 11, 2009, 4:27 pmhattio says:
PatHMV and Dave N,
It is true that someone has the option of making an Alford plea. But they often don’t have the option of making an Alford plea and still pleading to a lesser charge. Can you understand that a defendant, accused of murder in the first, who really believes they were acting in self-defense, who has no faith in the lawyer they were appointed, may decide to plead to Murder in the second if it will spare their life? You really want to throw that person in jail again, for their supposed perjury? Here’s a thought, should prosecutors be able to demand a guilty plea instead of a No Contest plea?
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October 11, 2009, 4:34 pmDave N says:
hattio,
I have DEMANDED a guilty plea as part of a plea negotiation instead of accepting a “no contest” plea.
I will add that I saw it used quite effectively in the case of a murderer who had insisted for decades that he was factually innocent of not only the homicide for which he was originally convicted but also of a homicide for he which was suspected but never charged.
In fact, he loudly proclaimed he didn’t even know the victim of the second homicide (his first victim’s girlfriend) and, in fact, had never met her.
His original conviction was overturned after he had served approximately 20 years in prison (because the appellate court thought the prosecutors should have disclosed the names of other suspects, and not, as we will see, because of DNA evidence).
In any event, as the State was preparing to prosecute him for the first murder, they also re-evaluated their evidence from trial, which included the shoes he was wearing at the time of his arrest.
A spot on the shoes had been previously presumptively identified as blood, but technology at the time of his first trial did not allow much testing beyond that. However, the spot could now be tested for DNA.
The DNA turned out to be from the female victim he claimed never to have met.
His attorneys offered to have him plead “no contest” to killing the first victim in return for a sentence of life with the possibility of parole and the State not pursuing the second homicide. The District Attorney rightly refused, recognizing that if this perpetrator pleaded “no contest,” he could continue to proclaim his innocence.
Instead, the prosecutor allowed him to plead guilty to the first homicide on the condition that he completely allocuted to the crime. In return, the prosecution agreed to recommend life with the possibility of parole and not to pursue the charges for killing the second victim.
He did so. As a result, his claims of “actual innocence” evaporated–and those who had been championing his “innocence” quietly faded away.
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October 11, 2009, 5:08 pmDavid Nieporent says:
Setting aside the question of which constitutional amendment actually says that, you miss my point: what constitutes an effective mitigation defense is arbitrary. The fact that an anti-death penalty judge plays Monday morning quarterback and thinks of all sorts of things the defense could have investigated that might have been presented, whether or not there’s any reason to think they should be mitigating (e.g. an abusive childhood) or would have changed the outcome does not mean that the defendant didn’t deserve the death penalty.
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October 11, 2009, 5:28 pmMahan Atma says:
No, it isn’t. It’s the presentation of any fact that might convince the jury not to vote for death.
Believe it or not, there are some jurors who will take into account the fact that a defendant was severely abused as a child, or suffers from brain-damage, say.
Lawyers routinely fail to present such facts, for a variety of reasons.
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October 11, 2009, 5:38 pmGene Madison says:
In a true “Justice” based system, punishment for a crime should not vary from case to case. Does it matter if a person is sorry for what they did? Not really. Even if the result wasn’t intentional. Restitution for the loss inflicted by that persons action must be paid for justice to prevail.
Sentencing shouldn’t be set to a number of years, it should be set until such time restitution to the victim(s) can be paid. i.e. Bernie Madhoff basically owes several $Billion dollars to many people. It comes out to be a life sentence, the only bonus is.. if he gets sick, we pay for his treatment. The people never quit paying for everyone elses mistakes, do they? Especially those who haven’t inflicted harm on anyone but themselves in the case of drug usage, and the people have to pay for his punishment for him hurting himself. Now that’s more of a crime than smoking pot. Yet our system has mutated into something that has taken Justice out of the picture.
It’s all about responsibility. When you create the fear, the result most likely to occur will be to the benefit of those creating it, with less of a consequence because the fearful had options, and selected the least consequential ‘sure bet’. Kinda like “Deal or No Deal”. When you have nothing to lose, you take more risks. In the end, nobody really learns a lesson, and the cost to society will continue to increase until it reaches the breaking point.
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October 11, 2009, 5:47 pmPatHMV says:
Right on, Dave.
Hattio, if the issue of guilt or innocence turns on self-defense, it’s exceedingly unlikely that DNA evidence will help in any way to establish that.
And yes, as I said, prosecutors and judges are reluctant to accept nolo and Alford pleas, because we don’t want to put innocent people in jail. If you maintain your innocence, we WANT you to go to trial. There’s no point in taking a guilty plea which can be challenged later.
The prosecutor, by the way, doesn’t have a whole lot of sway with the judge if the defendant pleads nolo or “best interests” as charged. The prosecutor’s desires only come into play if the defendant wants some benefit from the prosecutor in return for the guilty plea; then the prosecutor dose have a legitimate interest if he wants to cut a deal with a person who is going to continue to maintain their innocence. Most prosecutors that I know will not do that.
Oh, and if you plead guilty to a capital charge that you didn’t actually commit, without even taking a chance at trial, then you’re a freaking moron. If you are in fact guilty, then yes, it can make sense to plead guilty (or at least not put on a defense) to the guilt phase in order to fight harder on mitigation. But that’s a really stupid thing to do if you really didn’t commit the crime. But I’ll be happy to make an exception to the waiver requirement in capital cases anyway.
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October 11, 2009, 5:48 pmPersonFromPorlock says:
Well, if Smith’s falsely pleading guilty to a crime Jones actually committed lets Jones go uncaught, isn’t Smith an accessory after the fact? And also the prosecutor who engineered the plea? (just agitatin’ ;^))
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October 11, 2009, 5:51 pmPatHMV says:
The bottom line is that you don’t have a right to a plea bargain. You can plead guilty as charged, refusing to make any waiver, and be sentenced by the judge to whatever the law provides. Or you can go to trial and see what happens.
Or you can ask the prosecutor to cut some time off your sentence by dropping a charge or two in return for your pleading guilty. And if you want that benefit (not a right, a benefit being offered in return for accepting responsibility and reducing the costs of prosecuting you), then you’ve got to satisfy the prosecutor. And prosecutors are not satisfied with people who plead guilty but insist that they’re really innocent.
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October 11, 2009, 5:53 pmChrisTS says:
The OP contains this sentence:
One quarter of the 243 people exonerated by DNA had falsely confessed to crimes they didn’t commit, and 16 of them pleaded guilty.
Now, the total number may not be great, given that we are starting with a pool of 243. Still, this is information that ought to make PatHMV and others rethink their position. People DO plead guilty and confess even though they are innocent.
Given that this does happen, why would we want anyone to waive his/her right to have DNA results used to show innocence? Criminal justice is, if not completely, partly captured in the phrase ‘convict the guilty and acquit the innocent.’
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October 11, 2009, 6:02 pmbyomtov says:
Ah, so you dispute evidence from Pat because it is from a small subset and, instead, accept anecdotal evidence, which has no evidentiary support at all.
I do not dipute the accuracy of Pat’s statement as limited to his actual experience. I do dispute that it is generally true. Anecdotal evidence is certainly enough to refute the implication that all prosecutors have the attitudes Pat describes.
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October 11, 2009, 6:06 pmPatHMV says:
Except that I never claimed that “all” prosecutors have the attitudes I described. The overwhelmingly vast majority do, I believe, but I would never be so stupid as to say “all.”
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October 11, 2009, 6:12 pmShelbyC says:
Huh. Imagine someone is innocent, but you believe he’s guilty and have the evidence to convict him. You offer him probation if he pleads, and he faces two years if he doesn’t. You’d rather he go to trial, and perhaps wrongly go away for two years? That’s gotta be a tough call.
I have to say, I have the impression that the disparity in sentences is often so great between going to trial and not that the deals do more to create the perception that justice is being done, then to ensure that justice is being done. Of course, maybe all the false proclaimations of innocence creates a false impression the other way, but I have to wonder of coercing people to allocate is the right way to do it.
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October 11, 2009, 6:14 pmPintler says:
@Laura: Sure, you can construct that scenario, but think it through. At the least, we have someone in jail whose chief accuser perjured herself on the stand. The system isn’t optimized to make sure no guilty man goes free, it’s designed to make sure no innocent man goes to jail. In your hypo, fine, have a new trial. The lady can explain why she perjured herself before, and is telling the truth now, and the jury can weigh all the evidence, not just the subset they saw the first time around.
The discussion here, though, doesn’t seem like it’s really about after the fact DNA testing or whatever, but doing so for people who pleaded guilty. One camp is offended that an innocent defendant would perjure himself and plead guilty in exchange for a lesser sentence, and the other camp feels doing so is an acceptable tactic of necessity, perhaps like a POW stealing food during an escape.
Tom and Dick are charged with a murder. There is no body but strong circumstantial evidence. Tom pleads guilty and is sentenced to 20 years; Dick goes to trial and gets life. Five years later the supposed victim surfaces, alive and well. We all agree Dick should be released; some believe Tom should serve out his 20 years as retribution for falsely pleading guilty (or, alternatively, be prosecuted for perjury).
I mean no offense to anyone, but I just cannot imagine keeping Tom in jail. I think we are a little appeal crazy sometimes — I have followed a couple of cases which were appealed all the way to the Supreme Ct. on the flimsiest of reasons (especially arguing about a interpreting the guidelines a few months one way or another), and I could care less if some inmate’s cookies are broken, and I realize you can’t retry every case repeatedly for every scrap of new evidence. But when you have incontestable evidence of actual innocence, it’s just wrong to keep someone in jail even one more day.
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October 11, 2009, 6:20 pmPatHMV says:
It is a tough call, yes. It’s not for the faint of heart. There are really difficult, fundamentally challenging philosophical issues which must be evaluated and decided every day when you’re a prosecutor. There are no perfect options. If you insist that everybody go to trial, you do two things. One, you waste an awful lot of resources. Two, you create incentives for faux trials.
Years ago, before there was “no fault” divorce, you would see a lot of filings where false allegations of some fault were made, and the defendant would fail to contest them (or even have a trial where the defendant just didn’t put on a defense), where the parties had already worked out a property settlement. If you required everybody to go to trial, you’d STILL have deals cut, where the defendant agreed to waive his right to a jury and agreed with the prosecutor not to put on any evidence in defense or cross-examine any witnesses, in return for a lighter sentence. The desire on BOTH sides for cutting a deal of some sort is too strong to eliminate; it’s a necessary practice.
So then the question becomes what benefits you can offer for a guilty plea, while recognizing that offering any benefits at all will lead to some coercive pressure to plea. And the easier you make it to wiggle out of a guilty plea which you knowingly and voluntarily made, with the assistance of counsel, the more likely you are to encourage the non-guilty to plead guilty (look, Bill, plead guilty because the evidence is strong against you, but don’t worry, we’ll look for DNA later and get you released on that).
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October 11, 2009, 6:25 pmPatHMV says:
Pintler... of course if it turns out the guy’s not dead and we know that (he walks into the courthouse, not just that we hear rumors of his death) then the people convicted of murdering him should be released, even if one of them was stupid enough to plead guilty to a crime that not only did he not commit, but to a crime that was not committed at all.
But two things in response. One, DNA is only that determinative in exceedingly rare cases. It’s much better at proving that somebody WAS at the scene of the crime rather than proving that they were NOT there.
Two, we’re talking here about establishing a recognized, regular process for challenging guilty pleas, even long after the fact. When you set up a regular process for something, you’re committing a tremendous amount of resources. Many thousands of very guilty people will clog up that process very quickly, because they have nothing to lose. And when we talk about resources, the issue is whether it’s better to put them on the back end or on the front end. I advocate increasing resources for DNA testing and better indigent defense attorneys, to reduce the risk that innocent people serve any time in jail at all.
Where there is real and compelling evidence of actual innocence (strong enough to outweigh the fact that the man admitted doing the crime), such as your dead man walking example, then that can be covered by a regular old habeas petition. In reality, however, when evidence is that clear, prosecutors generally agree quite quickly to reverse the conviction.
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October 11, 2009, 6:34 pmShelbyC says:
Well, my main problem is having the large disparity between trial sentences and plea-bargained sentences. I mean, imagine I have a choice between 10 years at trial and a deal for one year. The math looks pretty crappy: I should plead guilty if you have a 10% shot at convicting me. Of course, it’s not all math driven, but still...
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October 11, 2009, 6:38 pmChrisTS says:
Sure, it is ‘stupid’ and moronic if (a) you are a smart, educated person with b) experience with the law, c) decent and interested counsel, and d) without reason to think that a person such as yourself will always et screwed. It probably helps, as well, to have a strong sense of self and justice. and some supportive friends or family.
Unfortunately, a significant number of criminal defendants do not meet one or more of these criteria. And, while it is kind of you to grant an exception in the case of capital defendants, for an innocent person to spend 5, 10, or more years in a prison — or any number of years — is unjust. Perhaps the person is willing to accept what seems like the lesser of two evils (a natural human move), but that does not mean our justice system should let them live out their bargain if exculpatory evidence becomes available.
That the system should, then, punish such people for not being clever, rich, or whatever, is an idea of which Kafka could be proud.
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October 11, 2009, 7:06 pmjccamp says:
“One quarter of the 243 people exonerated by DNA had falsely confessed to crimes they didn’t commit, and 16 of them pleaded guilty.”
I think this premise needs to be challenged. 243 people charged and convicted of crimes were subsequently not recharged after the original conviction was vacated. Certainly, many of these were in fact innocent, but again, certainly not all of them were. Defendants benefited from poor collection and storage by law enforcement, from contamination, from testing failures, from faulty lab procedures, that failed to produce DNA confirmation of their guilt. Not every, or even not most, of these results indicated some affirmative theory of innocence, but more likely, a negative ability to prove guilt, or a confusion about the source of some material. Not every DNA test resulted in an alternative suspect, for instance, because the sample tested probably came from contamination from someone within law enforcement who is not in the data base.
There is a distinction, and it is exceedingly difficult to discover the true facts that the much ballyhooed DNA tests logically point to, except for the very few occasions when testing actually discovers the identity of an alternate suspect.
I wonder in how many of the 16 cases of guilty pleas (or the 60-some people who confessed) did the DNA testing actually provide an affirmation of innocence. Or in those incidents, did they merely create a basis for a new trial, many years after the fact, when such retrial is a practical impossibility? So, in those cases, DNA testing may actually have freed the truly guilty. And isn’t that the point of what Pat has been saying?
The science of DNA collection is far outstripping our ability to understand and use it wisely within the criminal justice system. Aside from the legal issues of collection, we are learning that we leave DNA virtually everywhere. When a lab tests some evidence, we now know that hard part is differentiating the multiple specimens that undoubtedly are present in minute quantities, and some gross sample present in, say, visible body fluids. DNA does not leave a handy time stamp. Which specimen is there from the technician who picked up the evidence, and which is from the offender? Which is from the property clerk who opened the package twenty years later and which from the original criminal? But there is an unreasonable expectation that the magic words “DNA” somehow confer an infallibility, an unerring pointer to guilt or evidence, and warp this entire discussion.
If one knowingly pleads guilty to committing a crime, then one should be precluded from participating in the DNA Results Lottery years later.
Making unsupported assumptions like “...people (who)...falsely confessed...” does not help. We don’t know at all that these people were the truly innocent who confessed to something they didn’t do, only that the government could no longer prove them guilty beyond a reasonable doubt.
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October 11, 2009, 7:10 pmbyomtov says:
Except that I never claimed that “all” prosecutors have the attitudes I described. The overwhelmingly vast majority do, I believe, but I would never be so stupid as to say “all.”
Good. But still there are some. And there are other players on the prosecution side who may not be totally scrupulous. Think about the problems with some crime labs, police, jailhouse informants, and so-called expert forensic testimony.
I can easily imagine an innocent defendant intimidated by all that into a guilty plea, especially a defendant who lacks the resources to offer a meaningful challenge to the prosecution evidence. Notice that these things can happen even with a prosecutor acting in good faith, or maybe not wanting to inquire too deeply.
But the larger point is this. The system is very far from perfect, as you know better than I. How in the world can you justify denying someone imprisoned by it the opportunity to present evidence that might establish innocence. Bottom line, that’s what you are advocating, and it makes no sense.
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October 11, 2009, 7:17 pmShelbyC says:
do you have a cite for that, or more information? Inconclusive results don’t get your conviction tossed, do they?
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October 11, 2009, 7:34 pmChrisTS says:
ShelbyC:
Can it be that we are coming to agreement more and more often? I suppose the only question is, “Is it me — or you?”
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October 11, 2009, 7:39 pmChrisTS says:
jcamp:
You raise some interesting questions.
Perhaps Professor Adler could answer them.
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October 11, 2009, 7:41 pmChrisTS says:
Shelby: Please add a :-)
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October 11, 2009, 7:41 pmShelbyC says:
We’ll have to work on that. :-).
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October 11, 2009, 7:48 pmDave N says:
ShelbyC,
You didn’t direct your question at me, but the case I mentioned above is a prime example. Had the district attorney not maintained the evidence for 20 years, it would have been impossible to retry a man loudly proclaiming his actual innocence when, in fact, he was actually guilty.
I would note, as I did above, that the conviction was “tossed” for reasons having nothing to do with DNA.
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October 11, 2009, 7:54 pmShelbyC says:
Well I appreciate your response. It sounded like in your example the case was “tossed” due to a Brady violation, not inconclusive evidence. Are you saying that the DNA in some of these cases wasn’t definitive, and the defendants couldn’t be retried because the evidence was stale? It would be interesting to have more information, maybe I’ll start looking. I was under the impression that there had to be pretty solid evidence of innocence to get a conviction overturned based on new evidence.
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October 11, 2009, 8:10 pmChrisTS says:
ShelbyC:
Especially post Herrera.
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October 11, 2009, 8:42 pmjccamp says:
@Shelby -
I think if you try to determine actual facts about DNA testing and exonerations from, say, the Innocence Project web site, you’ll see lots of generalities and not much data. Just trying to look at random cases, there are 7 cited from North Carolina. In 4, an alternate suspect was identified from the DNA tests. In the other 3 cases from NC, the conclusion was that DNA testing could not match the defendant with physical evidence from the crime scene or victim. That is hardly proof of innocence, only of the existence of reasonable doubt perhaps. If the actual court documents could be examined, we might see that the state desired to re-try, but was precluded by the effects of time on witness availability, etc. So, in just this one sample, 40+% of the exonerations did not actually “prove” innocence, but only created doubt about guilt. Not really the same thing at all. In those cases when another person is positively identified via DNA, it’s hard to argue with the results, although without knowing the facts of the case, it would be difficult to automatically conclude that only one suspect was involved, for instance, but that is the assumption made.
Say in those 40% of the cases from North Carolina, there was contamination. After all, some of these cases go back to the early 1980’s, and the collection and storage standards were somewhat uneven. DNA material is extracted from the physical evidence, the defendant’s DNA is not within the microscopic samples actually tested, and viola!, the defendant is exonerated. Again, we may be talking about guilt or non-guilt in a legal sense, but hardly overwhelming argument for innocence in its true meaning.
What has always made me suspicious about the Innocence Project summaries is this type language from another case I grabbed at random. “DNA testing came about through Bauer’s civil attorney in another matter. The prosecution agreed to testing, which proved Bauer’s innocence.” No other details were provided, and the defendant was freed, even though both an adult victim and her husband identified the defendant. That defendant, by the way, is back in prison for another rape committed after he was released for the case cited.
I would only add this. The very same defense attorneys who are so very supportive of the exonerations from DNA testing would be screaming “contamination” and “lab error” from the rooftops if the samples were probative of guilt. That is their job, after all. But we should recognize that they are hardly impartial arbiters.
Certainly, DNA testing is a valuable tool. In those cases where alternate suspects have been developed and the innocent freed, its use is a wonderful thing. But, going back to the OP, allowing a person who benefits from a guilty plea to later enter the Scientific Method Sweepstakes strikes me as fair game for criticism. And I don’t think it helps the discussion when we automatically make an assumption than anyone benefitting from DNA testing is, per se, innocent — as opposed to not provably guilty beyond a reasonable doubt.
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October 11, 2009, 8:48 pmChrisTS says:
Shelby:
Uhoh. Should I ask my doctor about upping the meds? :-)
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October 11, 2009, 8:54 pmepeeist says:
All allowing later DNA testing does, or at least should involve (i.e. if there’s no waiver) is, IF the ability to test later improves, or IF a DNA sample is found later, the person can seek testing. I want that available even if someone has plead guilty, because as others have noted the extreme pressure that can be borne. Even with psychological pressure, sometimes in police interviews factually innocent people confess. Take someone facing the strong likelihood of e.g. a 25-year sentence, offered a plea where they may be out in 5 with good behaviour, say the person has a family or child especially, even if I were in that situation, notwithstanding how important oaths are to me, I might still think the right/good course of action was to plead guilty. So I won’t hypocritically hold others to a higher standard.
A factually innocent person who is wrongfully convicted will get a longer sentence, will find it much more difficult to get parole if at all unless they “admit” what they supposedly “did” (because that’s the only way to show remorse and coming to terms with the crime...), etc.
As for special pleas like nolo contendre, even if available in the jurisdiction the prosecutor’s position will probably be “plead guilty or I’m going to trial. No special pleas”.
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October 11, 2009, 8:59 pmStormy Dragon says:
Well, they don’t want to be seen to put innocent people in jail.
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October 11, 2009, 8:59 pmjccamp says:
Shelby -
“Inconclusive results don’t get your conviction tossed, do they?”
What I see in at least some of the cases is that evidence from a crime scene is tested and foreign DNA discovered. The DNA does not match the defendant. The defendant asks for a new trial, based on the new evidence which is inconsistent with his/her guilt. The state is unable or unwilling to proceed with a twenty-plus year old case, with witnesses dead or missing, police procedurals embarrassingly outdated, etc. It’s often an accumulation of poor work and antiquated policies which make the appeal successful and re-trial unlikely. The DNA is what makes the appeal reach a tip-over point, but the cases almost always have other troubling issues besides the DNA.
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October 11, 2009, 9:01 pmjccamp says:
“Well, they don’t want to be seen to put innocent people in jail.”
That’s awfully cynical. And, in my opinion, both terribly wrong and insulting to many here to boot.
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October 11, 2009, 9:06 pmChrisTS says:
jcamp:
To suggest it is a ‘Scientific Methods Sweepstakes’ is both question-begging and detrimental to your argument. The first problem is obvious, I assume.
Consider the latter. A great many convictions turn on what can only laughably be called ‘scientific’ testimony. Think of the nonsense ‘fire expertise’ or the even more bizarre ‘I can read tooth marks in bread’ testimony that has condemned people to prison and death. DNA evidence, by contrast, is relatively reliable in and of itself. That there are better and worse labs — and better and worse technicians and self-proclaimed experts — is an embarrassment to our justice system. It is not reason to refuse anyone the use of DNA evidence.
Think of your argument with different content. Since fingerprints (or, better, eye witness testimony) is imperfectly probative – in itself or as interpreted — we should deny its use to prosecutors. Given that it is the prosecution that bears the burden of proof, this would be a more plausible argument than yours for barring the use of evidence to defendants. But, would anyone accept such an argument?
I really think these arguments in favor of the coerced waivers must be grounded in the assumption[s] that (a) almost anyone who enters a plea and/or (b) almost anyone prosecutors suspect of crimes just is guilty. But this is no more than O’Connor’s bizarre claim in Herrera to the effect that ‘we’ in our perfection do not make mistakes.
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October 11, 2009, 9:11 pmjccamp says:
Chris -
“A great many convictions turn on what can only laughably be called ‘scientific’ testimony.”
I agree in principle, and I get the reference to fire investigations, bite marks and all, although I don’t know about how many times this may happen. And true, the DNA itself is fairly straightforward. However, DNA evidence cannot be separated from collection and contamination issues. Still, I would not deny convicted felons the right to post-conviction DNA testing, if the testing might actually prove something of value in determining guilt or innocence.
However, if a person knowingly pleads guilty, then we are entitled to presume him/her actually and in truth guilty as charged. If, later, the courts determine that somehow the defendant’s Constitutional rights had been abrogated, that’a another matter. But I think it is reasonable to tell a person, admittedly guilty in fact and in law, that they are no longer entitled to scientific testing intended to create doubt about the factual issues which they have already freely acknowledged.
The only time — in my own experience only — that I have actually seen defendants encouraged to plead guilty to (usually low level property) crimes they may not have committed was when the proposed negotiated sentence would result in an immediate release, compared to a longer sentence if there was a trial and conviction. I don’t think that’s the type of crime and sentence we’re talking about.
And my greater issue was with the assumption that anyone exonerated by DNA testing was automatically assumed to be innocent, in the sense that they (he/she) did not commit the crime as charged. I simply am asserting that many of those exonerated merely created a reasonable doubt, and many may have been guilty as charged. It does not help a discussion by proceeding from faulty assumptions. When deciding whether the waivers are sound policy or not, we should at least recognize that many of those released because of DNA testing could be very much guilty of the crimes they had been charged with.
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October 11, 2009, 9:41 pmjccamp says:
Chris —
Let me put it another way. In the OP, we see that about 25% of those who walked out of prison after DNA testing actually confessed to doing what they were accused of. 6%, with the assistance of counsel, got up in court and openly admitted to doing what the government said they did.
What’s more likely? That 6% of defendants are mentally unstable (well, that may be true) and 6% of lawyers should be disbarred for incompetence, or 6% of DNA tests are unreliable in determining the facts at issue in a criminal court? That 25% of innocent people have confessions beaten or tricked out of them by the wiley police, or that 25% of DNA tests do not produce results that reliably bear on the facts at issue?
Or maybe some combination of those non-mutually exclusive possibilities?
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October 11, 2009, 9:57 pm11-B/20.B4 says:
First off, plea deals are not a “right” of the accused, they are a time and work saver for both the prosecutor and the (often public) defense attorney. Plea deals are the method whereby prosecutors inoculate themselves against excessive work and the risk of a trial. They are the reason for overcharging defendants with every possible crime, related and unrelated (murder, conspiracy to commit murder, possession of a firearm with intent to murder, assault with a deadly weapon, aggravated assault, double secret conspiracy to commit murder and jaywalking). Then the prosecutor can “drop” all the charges but murder, and drop the possible sentence from 398476237468237–9843765472365472365432 years to 15–20. Yes, I’m being hyperbolic, but the basis is sound, and anyone who has worked in law enforcement or the courts knows what I’m talking about. What percentage of criminal cases are settled by plea? The vast, overwhelming majority. It is undoubted that allowing DNA testing post-conviction will eventually overturn a proper conviction. I do not condone this, but I am more than willing to accept the risk on behalf of those innocents placed in impossible situations who must choose between a guaranteed ten years in prison and a 50% chance of 100 years. As I understand it, the founding philosophy here is we’d rather release ten guilty men than convict one innocent one. Until you can show me that the odds are 11–1, this policy needs to end, and quickly. There should NEVER be a point in time when new evidence of a man’s (or woman’s) innocence is inadmissible. The very thought is disgusting, and none of the wild scenarios you can concoct will make it less so.
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October 11, 2009, 10:47 pmPatHMV says:
Well, if the prosecutor has over-charged, then that means he can’t prove those charges. So the defendant will be acquitted of those at trial. Unless you’re going to assume that the system is so fundamentally screwed up that there’s no reason to trust jury verdicts (in which case, plea issues are the least of our problems), then the overcharging line is without merit. If the defendant really did it, then it’s not overcharging.
Thus, it is in fact the defendant who gets most of the benefit from a plea deal. Frankly, most prosecutors I worked with LOVED going to trial; they didn’t want cases to plead out, because then they wouldn’t get to try them. They have to move cases, of course, and there is bureaucratic pressure to keep things moving, but the personal desire of most of them is to have a trial; it’s much more interesting work than the paper processing they have to do when not in trial.
Most cases result in plea bargains because most defendants are guilty and the evidence against them is quite clear. If they try to deny the charges and put up a ludicrous defense, they just make themselves look worse. It is to their benefit, significantly, to take a plea to something less than the full amount of all the crimes they actually committed.
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October 11, 2009, 11:15 pmChrisTS says:
jcamp:
Google the ‘Mississippi Coroner.’
Beyond that, I hope to respond intelligently to your post later this week. As of now, I am sleepy and must ‘to bed’ (past that point, in fact), and I will be fully occupied on Monday. Please do not think I ignore you.
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October 11, 2009, 11:19 pmDavid Nieporent says:
That’s okay; as long as the prosecutor gets the defendant for something else, the judge can still sentence the defendant as if he were convicted of all those charges.
In any case, you’re being disingenuous here; as any litigator knows, all trials are gambles. You cannot be certain what will happen. The prosecutor has nothing to lose, but the defendant does. A 20% chance of being convicted on the “overcharge” — or a 10% chance, or a 5% chance — may be too much, depending on the possible sentence.
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October 12, 2009, 12:42 amArthurKirkland says:
The prosecutor has nothing to lose because of immunity, which makes every prosecutor, to at least some degree, a coward unwilling to accept personal accountability. Immunity may be appropriate, to at least some degree, but the heads-I-win, tails-I-still-can’t-lose aspect causes me to discount prosecutorial sanctimony on issues such as DNA waivers.
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October 12, 2009, 1:57 amRicardo says:
You’re basically conceding the point. Prosecutors (not the individual ones who may love going to trial, but their bosses who actually have to run an office and take responsibility for clear cases on schedule) have a strong incentive to plea bargain to avoid going through the expense and uncertainty of a trial. If, as you say, most defendants are clearly guilty and the evidence against them is clear, why are prosecutors involved in the apparently grave injustice of letting them get away with less time than they deserve?
The Occam’s Razor answer is that prosecutors have neither the time nor the resources to try every case that comes across their desk. They allow plea bargains not in a gesture of magnanimity to defendants but simply as a way of keeping the whole system working. We have actual evidence (referenced in the post above but ignored by some in these comments) that factually innocent people plead guilty to avoid the risk of going to trial. In the federal system, plea bargaining affects not only the sentence you receive but also where you serve your sentence. Not getting raped in prison strikes me as a pretty good reason for even an innocent person to hedge his bets by pleading guilty.
Incidentally, if falsely pleading guilty is perjury and a prosecutor suspects the defendant who is pleading guilty is not telling the truth in his plea, does that make the prosecutor guilty of suborning perjury? If you have someone who you think committed pre-meditated murder but encourage and allow him to plead guilty to negligent homicide, isn’t that both unethical and criminal under this view?
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October 12, 2009, 4:51 amsped6348 says:
Sounds just like anyother GWB rule/law to me.
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October 12, 2009, 6:40 amThe Agitator » Blog Archive » Morning Links says:
[...] Obama’s DOJ to review policy requiring defendants who plead guilty to waive any right to later request DNA testing. Like Johnathan Adler (see link), I didn’t know the Bush administration had this policy, either. Seems like a pretty bad idea. [...]
Pintler says:
Are your reservations limited to scientific testing, or any changed evidence, and if so why?
We had a local case a few years ago, at the height of the repressed memory fad. An adult daughter was undergoing counseling, and discovered repressed memories that her father had abused her in bizarre satanic rituals. He at first denied his guilt, but while awaiting trial he ‘recovered’ the same repressed memories, confessed, and was sentenced to prison. A few years later, the daughter switched counselors and decided she didn’t have the memories after all. Further investigation indicated that that was at least partly correct, e.g. some of her centerpiece ‘memories’ were tied to specific dates, and it turned out that Dad was away on a business trip on those dates. Dad was released (pardoned? set aside? I can’t remember) but ... was still maintaining his guilt after release. So here we have someone who not only confessed initially, but still maintains he is guilty. Surely, though, he should be released, since given the totality of what we know now he is almost certainly innocent?
People are weird. I have never been subjected to a 12 hour interview. I like to think I would maintain my innocence, just like I hope if I was in combat I wouldn’t just curl up in my foxhole and whimper, but having never been there, there’s no way to know.
I get the resource issue. I guess I’d put it like this: a lot of departments maintain a cold case unit, hoping to find a guilty party for some long ago crime. I think it’s reasonable to devote that same level of effort — some fraction of a percent of the effort spent on current cases, I’d guess — to work the other way, and look for the wrongfully convicted.
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October 12, 2009, 8:55 amPintler says:
BTW, I dunno if it was the phase of the moon or whatever, but we had another satanic sex ring at about the same time (the wiki page is pretty brief, but has enough to follow up if you’re curious).
Of interest here is that some (many?) of the defendants confessed, falsely as it turned out. Why would they do that? The example I recall was a mother. The detective arrests her, explains that he has incontrovertible evidence that she is guilty of child abuse, but that if she confesses he’ll smooth things over with CPS and she can go home to her kids, but that if she doesn’t confess right now, ‘you’ll never see your kids again’.
Would you or I fall for that? Probably not — but people did. That kind of thing is why I don’t think we should bar post conviction review because the defendant pleaded guilty. A confession is just more evidence to put on the scales. It may be highly probative (the killer knows where the bodies are buried) or not at all (it is contradicted by physical evidence), but it’s just evidence to weigh.
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October 12, 2009, 9:14 amPatHMV says:
Pintler, I have already stated that I’m not debating here the difficult issues relating to confessions, and I have agreed that we have some serious problems in that arena. Guilty pleas are different than confessions.
Ricardo, we don’t actually have evidence of anything in this thread on that issue. We have a paraphrase, in a newspaper article, to some figure, which doesn’t even cite precisely the study it is relying on for the statistic. As another commenter noted, when you look at the details of Project Innocence cases (where those statistics tend to come from, and which was generally cited in the WaPo article), you find that relatively few of them actually resulted in a firm finding of actual innocence. Most resulted in the exclusion of some evidence and then the prosecutor (probably because the case was 10 years old or more at that point) was unable to proceed to a new trial. That’s not the same as determining that a person who plead guilty was, in actual fact, innocent.
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October 12, 2009, 9:22 amShelbyC says:
It’s certainly the best system we have, I wouldn’t call it fundamnetally screwed up, but it’s certainly fraught with risk.
Take a couple of high profile cases for examples. IIRC, Marv Albert pled and got probation to avoid the risk of going away for a few years. I have no idea whether or not he did it, but I sure would have taken his deal.
And the English Nanny pled as well, and got time served. I believe the main baby shaking guy in her case says that modern knowelege about shaken baby syndrome would have exonerated her.
And IIRC there were plenty of folks involved in the Satanic ritual abuse in day care centers cases that pled.
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October 12, 2009, 9:26 amPintler says:
I fear I’m not following. These people entered guilty pleas. I am offering these cases as examples where justice is not served by a policy of ‘you entered a guilty plea, so live with it’.
When new evidence comes along [Note 1], whether it’s DNA evidence or new witnesses or new business records or whatever, you have to look at the totality of the evidence, and if the original conviction smells, we need to fix things, whether it was a guilty plea or not. It’s the actual innocence or guilt that should matter, not what the plea was.
[Note 1] In the Wenatchee cases, there wasn’t even new evidence. If it had just been a few cases, they would have never been reviewed. The sheer number of cases made people take a skeptical second look.
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October 12, 2009, 9:50 amjccamp says:
“Are your reservations limited to scientific testing, or any changed evidence...”
I think what the OP was about is the narrow issue of scientific testing (and re-testing) of evidence in cases of a defendant who has pled guilty and is serving a long prison term.
Although I hesitate to represent Pat’s POV, certainly I have some experience with convicts sitting around with lots of time on their hands, and filing motion after motion, limited only by the imagination and the law library at their particular institution. In the intervening years (decades?), forensic science has progressed in both theory and practice. New DNA tests, in one example, are far more discriminating, or, more telling, we have discovered ways to literally replicate new DNA from truly minute samples. So, samples which may have not yielded results in years past are now possible to test successfully. Old physical evidence is tested, DNA traces are discovered which do not match the man who has already admitted to committing the crime, and suddenly he is free. Of course, what we have really discovered is contamination, which was added to the evidence somewhere along the way. Years ago, contamination in tiny quantities might not have been detected. Now it is.
I don’t see this as a big issue in cases where a defendant pleas guilty in return for probation or some other non-custodial judgement. I also don’t see this as limiting continuing appellate paths concerning constitutional issues, since it is fairly common for defendants to plead guilty while simultaneously appealing, say, a motion to suppress (a warrant, a search, etc). There is also a fairly large body of case law in the case of witness recantation too. So, the waivers being discussed are narrow in scope.
Waivers notwithstanding, I cannot imagine a responsible prosecutor (or responsible investigator) opposing further scientific testing in any old case where the facts involve such things as hypnosis to revive suppressed memories of satanic rites, or other now discredited investigative methods, which make the original verdict questionable.
No police department I know of actually has a squad or team specifically tasked to investigate old cases already classified as solved. Put that way, why would they?
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October 12, 2009, 10:03 amFloridan says:
I didn’t read every comment in this thread, so maybe this has been stated previously.
It seems to me that the important consideration here is that if a person convicted of a crime is, infact, innocent, then doesn’t that means there is some other person still out there who did commit the crime?
While some may feel that the penalty for a false confession should be serving out the sentence without recourse to subsequent proof of innocence, I think that is a rather shortsighted view of the larger issues in crime and punishment.
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October 12, 2009, 10:38 amAmiable Dorsai says:
“But I also really dislike the idea that somebody can perjure himself with no consequences.”
Someone who has been doing jail time on a false guilty plea has already experienced serious consequences for his “crime”.
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October 12, 2009, 11:06 amRyan Waxx says:
If the system actually was “loaded up” against the innocent pleading guilty, then one would expect that in the subset of cases where a person was shown to be innocent after they were locked up, only a tiny minority would have plead guilty and/or confessed.
However, my recall of overviews of those cases is that the reverse is true, that most of them have a guilty plea and many even have confessions, which would tend to disprove your contention and show that instead, there is indeed a pressure for innocent people to confess.
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October 12, 2009, 11:07 amShelbyC says:
Well, we’re probably entitled to, but are we required to? If a person allocutes as a condition to a two-year deal, in order to avoid a ten-year sentence, we’re certainly entitled to worry that he took the deal to avoid jail time, right? And to build safegaurds into the system to remedy such errors?
And BTW, you don’t really mean freely acknowledged, do you?
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October 12, 2009, 11:21 amGuest14 says:
This made me laugh. Prosecutors are the most ridiculously corrupt lawyers I’ve ever had the mispleasure of working with. In my time at a DA’s office, all I ever saw was a desire to convict whoever the cops dragged through the door — that’s all they cared about.
Don’t expect to prevail at trial just because you happen to be innocent. Your prosecutor will fight tooth and nail to hide evidence that your accuser is lying or delusional and that the prosecutor’s theory is wildly inconsistent with evidence known to the prosecutor, sitting in the prosecutor’s office.
Trials have nothing to do with truth. Innocence is no defense. If you want to rot in prison for decades just to avoid perjuring yourself — if you’ll cheerfully sacrifice your life for these principles, well, I think you’re insane, but you’re entitled, I guess. Just be a little easier on those who decide to try to salvage what little remains of the wreckage of their lives when the state capriciously decides to destroy them.
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October 12, 2009, 11:59 amChrisTS says:
Let me try to review what we have been discussing, here. Imagine we have a case in which an innocent person confesses/accepts a plea:
1) We have a factually innocent in prison;
2) A factually guilty person may be free.
The argument to deny our person further access to his/her DNA evidence to later prove innocence seems to rest on some or all of these concerns:
3) We want to discourage people from falsely confessing/pleading.
4) Some think a person who has falsely pled should be punished for doing so.
5) Some prisoners might be tempted to file DNA claims frivolously, and this is costly.
1 & 2 seem to me the most important concerns from the perspective of justice and public security. To leave the person with no recourse is vile; to be indifferent to the possibility that a genuine criminal is loose is madness.
I think 3 is correct, but the idea that we will achieve this by adding to the threat of punishment for a crime not committed the threat of punishment for false pleading is very strange. If someone is so overcome with fear as to accept X years in prison for a crime s/he did not commit, how likely is s/he to worry about being punished later on for the false pleading?
I find 4 cruel, to be blunt. A person has pled guilty to a crime s/he did not commit out of fear of worse punishment. This person has already suffered, has been marked as a criminal, and may have spent some time in prison. How could a decent society then seek to further penalize this poor creature?
5 strikes me as less probable in the case of DNA requests, as the prisoner would have to have some hope the test would not simply further prove his/her guilt. Either way, I am less concerned about this kind of ‘resource’ problem. I realize our justice system often does work like a factory, and perhaps it must do so. But even if it must, we can and should accept the possibility of review and recall when the system produces faulty results.
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October 12, 2009, 12:15 pmjccamp says:
Shelby —
Maybe I’m cynical, but I don’t worry much about people pleading guilty to long prison terms when they didn’t do the crime. I just don’t think it happens very often. Even if such a person — innocent but pleading guilty — had no regard for himself or herself, would they not have a responsibility as Floridan points out?
“...you don’t really mean freely acknowledged, do you?”
Yes, I do. I’m referring to defendants who take a plea that results in a long term of imprisonment. We have 5th A protections. Defendants enter guilty pleas because there is overwhelming evidence of guilt, and they seek some advantage from the plea. They are not compelled to acknowledge their guilt, save by the potential legal consequences of their own actions.
In other words, I find it very hard to believe that anyone would plead guilty to, say, life imprisonment, to avoid a death penalty, when they were in fact and in truth innocent. And I don’t mean innocent of the technical details or minutiae of the statute, but innocent of the actual misdeed itself.
In the case of your hypothetical, given a two year window (sentence), any test would have been certainly done pre-trial. The examples the test waivers are intended to prevent are 20 and 30 years old, and significantly influenced by changes in scientific theory and practice.
@Floridan -
well, yes, certainly no one on the government side fails to understand that an innocent party in jail represents a guilty one free. However, the flip side is that a person who voluntarily gets up in an open court and admits to committing some crime, and who later games the system and goes free, also represents a guilty person walking about and threatening those of us who stay within the lawful confines of civilized society.
How about a person charged with something they didn’t do? Do they have a similar obligation to see justice done and the perpetrator caught? Is their sense of civic responsibility misplaced?
I guess the bottom line of this discussion — from my POV — is that the defendants I am referring to, I assume are absolutely guilty because they have pled to a long prison term. Why should we allow them to divert time and resources from people who have maintained their innocence all along?
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October 12, 2009, 12:26 pmPintler says:
IIUC, part of the concern is that modern DNA testing is so sensitive that it is prone to contamination, so the apparent new perpetrator may in fact have been some random officer gawking at the crime scene, and so a guilty man might hope that the test will find DNA that is contaminated with someone else’s DNA and not his. I’m not competent to guess at how likely that is. I think it would be interesting to get some old evidence where guilt is uncontested (because, e.g. the perp was caught at the scene) and send it off to the lab as a blind test. That would put some bound on the probabilities.
If the contamination problem is bad enough, old DNA evidence may not be any more valuable than the inmate’s wife suddenly remembering he was with her the night of the shooting. Or it might be valuable evidence. Without data, we’re guessing.
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October 12, 2009, 12:40 pmjccamp says:
This may be slightly off topic, but there was a well-known (in prosecution circles) case in Florida a few years back. A man on death row sought post-conviction DNA testing. The government would agree to the testing only if the defense agreed that the DNA test results would be part and parcel of any future appellate proceedings, such as if the defendant were to allege that government witnesses recanted, or made other claims of newly discovered evidence. The defendant’s lawyers refused, and the testing issue dragged on without a decision. The man was eventually either executed or — more likely — died of natural causes while awaiting execution. Of course, the headlines were something like “Man Dies While DA Opposed DNA Tests.” Tests after his death confirmed his DNA was on the evidence, which probably explains why he never agreed to the testing stipulation. (Cop-out: I may not have the details exactly correct here. I can’t remember the citation.)
Would anyone here have a problem with the DNA test results being equally available for either side in any appropriate future appellate proceedings, so that, for instance, tests which were indicative of guilt might, in effect, shut down any number of future appellate avenues for the defendant? This obviously might not affect constitutional issues, but would be more about such things as witnesses recanting, new scientific testing which would alter trial conclusions, alleged confessions by now deceased persons, etc.
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October 12, 2009, 12:44 pmPintler says:
I think that we differ because you’re envisioning a guilty sleaze setting in his cell trying to game the system to get off any way he can — and I’m sure there is no shortage of inmates that fit that description to a T, and may a pox be on them.
Still, I can’t help but think of the Wenatchee mother. Her ‘crime’ was being stupid enough to believe the Detective when he said all she had to do was plead guilty and all her troubles would go away, but that if she kept saying she was innocent, he would make sure she never saw her kids again. We should divert time and resources to free her because, well, she’s innocent. She’s not a dimwit by choice.
I don’t have very much sympathy for many appeals: ‘the jury had too many redheads’, ‘the prosecutor wore a cross’, etc. But whisper in my ear ‘I’m innocent and I can prove it’, and you have my attention. If we need to squelch frivolous appeals, fine — IMVeryHE, not arguing whether this or that in the guidelines means that the sentence should be 100 months instead of 102 months would be a good start. As the saw goes, if you don’t want to do the time, don’t do the crime. But when you didn’t actually do the crime, the details of the path you took to get there just don’t seem important to me.
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October 12, 2009, 1:03 pmPintler says:
That sounds eminently reasonable to me. I would also think that introducing non DNA evidence (‘my wife now remembers I was with her’) would open the door to the prosecution introducing DNA (or any other) evidence. If you’re asking to reopen a case because of new evidence, I think you have to take any new evidence there is.
(Out of curiosity, what was the rationale against doing so? It seems very odd to argue ‘please admit such-and-such evidence, if and only if it helps my case’.)
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October 12, 2009, 1:16 pmPatHMV says:
Pintler... The Detective may indeed have kept saying that, but what did her attorney say when she appeared in open court to plead guilty (which is quite different from “confessing” to a detective after a 12 hour interrogation)? Did the woman in your case really plead guilty, or was she convicted based on her confession? If she did plead guilty in open court, perhaps she had a crappy public defender who didn’t give her good advice. In which case, I will again point out, all the resources which might be devoted to helping people who plead guilty to 10 or 20 year prison sentences undo their guilty plea would probably be better served if we devoted them instead to providing better representation on the front end.
ChrisTS, as others have pointed out, 5 is very much on the mark. Guilty people sitting in jail have absolutely NOTHING to lose by flooding the system with bogus complaints. They do it regularly already. If the DNA comes back and it’s theirs, then they’re no worse off than they already were; they’ve already been convicted. At most, it weakens their later claim to be released because a witness “recanted.” DNA tests on trace evidence costs thousands of dollars (DNA tests on something like a blood sample is pretty cheap, but to extract DNA from, say, a small blood stain on a t-shirt is very expensive). As others have noted, long-after-the-fact DNA testing is also very unlikely to produce definitive results, because of the risks of contamination. Every dollar you spend on post-conviction testing of people who admitted their guilt in open court (as jcamp has noted, the reality is that this provision only ever comes into play with people who plead guilty to receive LONG prison terms, not the 20 years versus 2 years plea but the 20 years versus life plea) is a dollar that can’t be spent to provide better representation and scientific investigation to defendants BEFORE they are locked up for long periods.
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October 12, 2009, 1:26 pmPatHMV says:
Everybody is entitled to due process when accused of a crime. But due process does not include the right to try the case until the end of time. At some point, there must be finality. Yes, in the very, VERY rare case where some evidence arises that proves innocence, we can make exceptions to the normal rules and do what justice requires. But we have no obligation or need to create more and more formal, universally available processes which can be used by convicts to challenge their convictions years, even decades, after the fact, after they have exhausted their rights to trial, appeal, and habeas corpus.
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October 12, 2009, 1:31 pmjccamp says:
Pintler —
As I recall — and this is hazy — in that one particular case, the defense (actually appellate) attorney(s) position was that a negative DNA test (meaning no match to defendant) should have been grounds for a new trial, and in effect, an acquittal, given the passage of time. However, should the test prove positive for the defendant’s DNA, their position was that the DNA evidence had not been subject to the rigors of an adversarial trial, cross examination, etc, and thus it could not be cited or used in any of the appellate process, because the government was limited to the trial record or to a traverse to any specific motion. Thus, there could be no mention of the DNA matching the defendant outside of a response to a new trial motion based solely the results on DNA testing. BTW, the trial judge did not agree with that reasoning, and refused to order the DNA tests — I think. They (the tests) were eventually done, but the results were known only after the defendant mooted the entire issue by remanding himself to a higher jurisdiction, so to speak (to steal a line from Hebrew American hotdogs).
This instance was a typical waste-time test, on the theory cited by Pat. If it’s negative, swell, I get a new trial. If it’s positive, so what? I’m already convicted, and the test results should not impact other appellate issues.
I would not want anything within this thread to suggest I condone people who have been unfairly disenfranchised from exercising the totality of their rights and privileges. It’s very hard to disagree with some of the anecdotal items in principle, although I don’t know that scientific testing after the fact would have remedied the apparent lack of justice in say, the child abuse case mentioned. In the end, however, we simply cannot provide a never-ending opportunity to those who voluntarily chose to take responsibility for their actions to change their minds. At some point, we have to have faith in the multiple layers of investigators, prosecutors, magistrates, judges and appellate courts.
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October 12, 2009, 2:21 pmjccamp says:
Guest 14 -
Just out of idle curiosity, in what part of the country did you work with a prosecutor’s office? A city/county would be great, but a geographical indicator would work if you’re not comfortable getting too specific.
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October 12, 2009, 2:25 pmTom says:
Innocent people can and do plead guilty. Consider the case of James Ochoa.
http://www.ocweekly.com/2005–11-03/news/the-case-of-the-dog-that-couldn-t-sniff-straight/
http://www.ocweekly.com/2005–12-22/news/there-once-was-a-judge-from-nantucket/
http://www.ocweekly.com/2008–03-13/news/csi-games/
http://blogs.ocweekly.com/navelgazing/breaking-news/wrongly-imprisoned-oc-man-wins/
The prosecutors on this blog should who claim they would never want to convict an innocent person or would never want an innocent person to plead guilty — would probably also do some if not most of the following.
1. Introduce jailhouse informant testimony — leaving the deal open-ended so only after trial do I find out that the guy got 5 or 10 year sentence reduction.
2. Introduce forensic evidence with little or no scientific backing and no known error rates like hair comparison analysis or bite mark analysis by an “expert” who claims the technique is near infallible. Then oppose an motion for defense funding for our own scientific expert.
3. Do everything they can to bring up prior convictions or alleged gang ties, or any other past bad acts by my client even though they may have nothing to do with the current charge.
4 Overcharge so that there is significant risk of substantial prison time — especially in states with three strikes laws.
5. Attempt to strike every black male from the jury.
6. And in a few rare cases even hide/destroy exculpatory evidence — knowing that they will almost certainly never be punished professionally or criminally because of their near absolute immunity.
And yet somehow in the face of this when I have a client that’s already been railroaded by the system once or twice, if he’s really innocent he must plead not guilty and if he does plea bargain to avoid the risk of an extra 10–15 years he should be prevented from later attempts to prove his innocence and possibly be charged with perjury. What a mockery.
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October 12, 2009, 2:29 pmRyan Waxx says:
The bogus complaints problem is real, but I suggest that the REASON it is a real problem is because we, as a society, want that safety valve open in case an innocent person can use it to get out. If we hadn’t made such a judgment, then those appeals wouldn’t be there in the first place.
These... prenuptial agreements with your jailor are an attempt by DA’s to shut down this protection in a very undemocratic fashion, using the coercive power of probable additional imprisonment time as their tool.
Choose another way to stop the frivolous lawsuits problem. Do not allow DA’s to assume power of the process that isn’t theirs by having people who are under the DA’s thumb sign their rights away.
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October 12, 2009, 2:29 pmPintler says:
By my quick count the final box score was 19 pleas, 10 convictions, 12 acquittals, and two ‘other’ (# 9 and 29 on that page). The longest sentence was 47 years, so lots of time to make frivolous appeals.
The whole story should be required reading for prosecutors. Well, heck, for everyone :-)
The series stops when the last person was released. According to my always fallible memory, the legal squabbles continued as people who had served their time sought to have their convictions overturned and names cleared. My recollection is that several of those worked through the system as individual cases, and that the state supreme court eventually issued an unprecedented ruling saying, in effect, ‘we’ve seen enough of these — we’re going to overturn all of the rest without further proceedings’. I may well be remembering that wrong, and I can’t find a link with a few minutes of googling. My sense, having followed the case as it developed, is that probably none of the cases were valid. I mean, 6,422 counts against a single defendant? That’s a busy defendant.
Anyway, read the series for yourself and see what you think.
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October 12, 2009, 3:18 pmFloridan says:
I’m somewhat surprised that on a blog that is generally suspicious of government authority, there is so much faith placed in officials who draw their paychecks from the state, such as “investigators, prosecutors, magistrates, judges and appellate courts.”
How can these individuals be so civic-minded, when other government officials are rapacious power-grabbers?
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October 12, 2009, 3:34 pmChrisTS says:
Ryan:
Well said.
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October 12, 2009, 3:52 pmChrisTS says:
jcamp:
You repeat that you cannot believe that people plead when innocent, or that it happens very often. Yet it does happpen, as both the original post and lots of cases [google-able] show.
I don’t think it matters if this is a problem of vast extent. I agree with Ryan that the resource issues should be addressed in some way that does not condemn a stupid, uneducated, or frightened person to unjust punishment. And, yes, if one is innocent and in prison, the punishment is unjust, however it came about.
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October 12, 2009, 3:56 pmChrisTS says:
Pintler:
That is a terrifying story.
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October 12, 2009, 4:12 pmNoMoreNoloContendere says:
I would hate to be one of PatHMV clients. Commenting like crazy instead working on cases. You might be part of the problem & don’t even know it. I only say this because I don’t think you know what Due Process means. Or maybe you don’t know that defendants are represented by counsel & it’s counsel that “tapps out” thus pleaing out their clients. Are you practicing in Texas?
Take a break already, try reading instead of typing. I see a good place for you to start (Tom says) up about six comments. Or you could go to ordinaryinjustice.com & get the book by Ms. Amy Bach, it’ll explain everything you need to know about your position.
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October 12, 2009, 4:46 pmjccamp says:
No More Nolo -
The comment @2:29 you cite in fact contradicts your own post. The attorney in that case did not “tapp out” — whatever that means. No need to get personal either.
Tom —
Reading the entire chain, I see that the prosecutors were the ones who realized that an innocent man was in jail and they filed the motion to free him. That was after a government lab tested the crime scene DNA and made a match post-conviction. So I guess the DA also “railroaded” him back out too, right? No one denies that there are mistakes and miscarriages of justice. The issue is about restricting the ability of persons who plead guilty to continue to contest the facts at the government’s expense.
Tracking dog evidence is tenuous, at best, in terms of repeatability. As for the judge, there are whack-jobs of both pro and anti-government bent around. Neither of these should have survived an appeal, regardless of whether there was a plea or not. I don’t see that this case has anything to do with the OP, which was about post-guilty plea DNA test waivers.
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October 12, 2009, 6:32 pmTom says:
jccamp:
The prosecution knew the DNA excluded Ochoa before he plead guilty, in fact the crime lab technician has testified that they told her not share that information with his defense attorney. Ochoa plead guilty because of threats made by the judge and the prosecution accepted that plea knowing the DNA did not match. Ochoa was fortunate because he had a crime lab technician on his side who continued testing the evidence after the conviction. Only after the DNA lab tech found the match did the DA attempt to save face by petitioning for his release. If he did not have such good fortune to have a lab tech on his side and if the DA required him sign a waiver preventing further testing in his case he would never have known about his innocence.
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October 12, 2009, 9:58 pmjccamp says:
Tom —
It’s pretty obvious the DA who prosecuted, knowing the DNA excluded the Defendant, and worse, tried to hide that from discovery, should be more than just sanctioned in that one courtroom. Isn’t that BAR Association disciplinary committee territory?
Where were the cops while this was happening? I have to tell you that my detectives would never have stood by and let something like this go down. if it came to that, we would have called the media ourselves, much as we generally despised them. But I can’t imagine a systematic failure that would tolerate a lab technician being told not to testify truthfully or to hide the actual test results. Maybe one rogue prosecutor, sure, that could happen. We had one in our jurisdiction who was known to play fast and loose with the facts. The occasional bad cop who cuts corners? Who could deny they exist? But for this to happen, there would have been complicity all up and down the line. I just cannot imagine a setting for that to occur — but I’m not doubting what you say, just trying to imagine it.
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October 12, 2009, 10:27 pm