Prosecuting Innocence: Resistance is (damn near) Futile

----------Mental Illness Awareness Week: October 3-9, 2010-----------

Article originally posted Thursday, February 25, 2010.

Resurrected for the Arpaio 5 and the Freedom March.

The sentencing committee meeting was canceled again today, by the way - I have no idea when it's rescheduled for. I hung out at the Capitol awhile anyway, handing out copies of Tenacious to the women legislators I could find, since it was "Women's Day at the Legislature" today, and I didn't think they'd made any arrangements for state prisoners to participate or talk to their legislators. I also left one for Governor Brewer, with an article done by a woman who had cancer while at Perryville a few years back. She's now with an organization that helps women in prison. I'll post her story here when I get permission.

I hope those legislators I gave the zines to actually bother to read them. I don't know when or how they're going to hear a woman prisoner's voice address their conditions otherwise. Maybe we should try to get them to hold hearings out at the prisons themselves. Given the Arizona Republic and Lumley Vampire reports on the physical condition of the facilities alone, they should have organized an emergency oversight committee to check it out in person. The legislature is responsible, after all, for compromising the safety of state prisoners and corrections employees in the first place. They've now been duly warned that they'll be held liable for failing to follow up on it.

Anyway, the following article is very pertinent to the work of the House Sentencing Committee - and most of the issues I have with Andrew Thomas' office. In fact, this is a very good reason why we don't want that man to be Attorney General. He'll be putting ten times as many innocent people away, while letting the really guilty ones walk by making questionable deals - like the one that put the Scott Sisters away. The innocent don't have anything to fear, they think, nor do they have anything to trade. The guilty, on the other hand - the "triggermen" - can trade them.

There's nothing guaranteed to get you a more severe punishment in America than insisting that you're innocent and losing to the prosecutor at trial - and they make sure you know that when they make their offer. Their job is to prove guilt, not to find truth - don't make any mistakes about that. They're out to get convictions, by and large - not to protect the innocent. Victims are just useful tools to win their cases with, and to use to promote their own tough-on-crime image.

There are a few remarkable exceptions to that rule, of course. Some DA's have been very committed to investigating reports of wrongful prosecutions/convictions. I hope that's the beginning of a trend towards more ethical, responsible prosecutorial conduct. I have yet to see evidence of that happening in Arizona, though.

Borrowed the post below from our friends at Idaho Prison Watch...

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What is Wrong with the Plea Bargain System in our Courts Today?

Frontline Interview with
John H. Langbein

John Langbein is a professor of law and legal history at Yale Law School. In this interview, he describes how the plea bargain system pressures people to buckle and accept a plea-even if they are innocent-and how prosecutors, judges and defense attorneys have a role, a stake even, in seeing that this happens. He also talks about the Supreme Court's indifference to the pressures on a defendant in the plea process, and why he believes the rampant growth of pleas is rooted in the trial system's failures.

(I have condensed this interview for the sake of this forum. You can view the entire interview on the link I provided below)

Q: "What is wrong with the plea bargain system in our courts today?"

Plea bargaining is a system that is best described as one of condemnation without adjudication. It is a system that replaces trial, which is what our constitution intended, with deals.

Second, those deals are coerced. The prosecutor is basically forcing people to waive their rights to jury trial by threatening them with ever greater sanctions if they refuse to plead and instead demand the right to jury trial.
But every defendant has a right to go to trial; it's a choice they make to plead guilty.

The problem with choice arguments is that they neglect the main dynamic of plea bargan which is the pressure that the prosecutor puts on you to do it his way.

Plea bargain works by threat. What the prosecutor says to a criminal defendant in plea bargaining is, "Surrender your right to jury trial, or if you go to trial and are convicted of an offense, we will see to it that you are punished twice. Once for the offense, and once for having had the temerity to exercise your right to jury trial." THAT is a coercive system.

And the prosecutor has many devices which increase the level of coercion: multiplying the counts, threatening to recommend the most severe end of the sentence range, keeping you locked up in pretrial detention if you're poor - most people who are in the criminal justice system are poor - prosecuting your wife as well as yourself, and things of this sort. The prosecutor can pile it on if you don't play it his way. It is therefore a deeply coercive system. Yes, you have a choice, but your choice is constrained by coercion.

Q: What is the role of the defense lawyer?

Sometimes defense counsel does a very good job for people in the plea bargaining process, and gets you a good deal. But there are many other outcomes.

In the public defender system the defense counsel is representing a hundred other people; the defense counsel can not take every case to trial....

Defense counsel in some circumstances is not very competent and is delighted simply to take his money and run, so to speak."

"So there's no particular reason to think that defense counsel is any serious answer to the intrinsically coercive nature of plea bargaining."

Q: Whom does the system benefit?

The main winner in the plea bargaining process is the prosecutor. I describe plea bargaining as a system of prosecutorial tyranny..."

What has happened is that a single officer, the prosecutor, now is in charge of investigating, charging--that is, bringing formal charges--deciding whether to prosecute, evaluating that evidence, deciding whether or not in his or her judgment you're guilty or not, and then basically sentencing you.

"....what we have now is a system in which one officer, and indeed a somewhat dangerous officer, the prosecutor, has complete power over the fate of the criminal accused."

Q: You let the defense attorney off lightly.

I think defense counsel is to some extent at the mercy of a bad system. There's not a lot you can do when the other guy has all the chips. And the prosecutor has an awesome pile of chips in our plea bargaining system, because the prosecutor can threaten ever larger sanctions if you don't do what he wants.

So I believe that by far the worst failure in the plea bargaining system is the prosecutor, and I think that's in part because the prosecutor is not always as noble as he would like you to believe he is."

"It's a lot easier to coerce somebody into waiving all his defenses than to actually investigate the case thoroughly..."

But, again, the trial is there for anyone who chooses that option.

It is true that one always has the right to go to trial, but the prosecutor can make that right so costly that only a fool will exercise the right..."

Part of the reason why we in this country have criminal sentences that are so much more severe than in the rest of the civilized world, is the need that prosecutors have to threaten people with these huge sentences in order to get them to waive the right to jury trial...."

".... most people (in the system) are too poor to afford bail, and these people are particularly likely to yield to the demand that they confess whatever it is they're being charged with rather than wait for some kind of trial, because they'll be sitting in jail for months and months and months, and therefore there is a very evil interaction of prosecutorial power with poverty, with indigence."

It is very sad that the Supreme Court, which has been so anxious to protect various rights of persons who go to trial, has been so cowardly about seeing the evils of the plea bargaining process."

"...the Supreme Court has been indifferent to the pressures on accused in the plea bargaining process, as exemplified by the famous Alford case, where the fellow actually stood up and said, "I'm innocent, but I'm pleading because the disparity of outcome that they're threatening me with is too great". It's terribly sad."

"...the prosecutor is allowed to coerce people out of trial."

"...what happens is that prosecutors don't have to prove their cases; they're simply allowed to coerce people into waiving their rights. Judges are spared the difficulty of conducting trials and the danger of being found to have erred; they (plea bargains) can't be appealed from .."

"...what actually happens is you're coerced into confessing yourself guilty, whether you are or not."

"The saddest things about plea bargaining is that it is not widely understood. Most people have the television model of Perry Mason or somebody similar contesting for a verdict of a jury."

"Plea bargaining is sometimes justified on the ground that we are giving a lighter sentence to someone who is showing contrition or remorse for the offense. But that's a pack of lies. What is in fact happening is that the accused is being told by the prosecutor, "You accept guilt and confess and bear false witness against yourself and we will then see to it that it gets characterized as contrition or remorse."

The point is that the coercion, which eliminates trial, eliminates our ability to know you were in fact beyond reasonable doubt, guilty or not. And therefore it makes the remorse talk just window dressing by apologists who want to keep this existing system which is convenient for them."

Q: Do you have a solution?

I think the solution is very complex. I think it requires facing the underlying failure of this adversary criminal justice system. The idea that having one pack of lawyers and investigators saying, "You did it," and another pack saying, "We didn't," and nobody actually looking for what actually happened, nobody having an interest in investigating the truth, is a bit mistake."

"No knowledgeable student of comparative criminal justice is likely to fall victim to the notion that our is an admirable system.

It is an appalling system.

We have ten times as large a percent of our population locked up in jail by comparison with the European countries. We have sentences which are draconian. We've just had a 12 year old put in jail for life in Florida. Things of this sort are unheard of in the rest of the world.

There are many causes, but the failure of our adversary system is central, and the political nature of our prosecutorial system is also central..."

(complete interview at: http://www.pbs.org/wgbh/pages/frontline/shows/plea/interviews/langbein.html)