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In a recent Huffington Post article, Judge H. Lee Sarokin (retired) reflected on Brian Banks‘ recent exoneration and concluded that the innocent plead guilty largely due to what he calls the “Ins of Court” — intimidation by the prosecution and incompetence by the defense.

The defendant, frightened, most often poor, uneducated, a minority member is advised that a trial is likely to end with a conviction and a long sentence, whereas a plea will guarantee a much shorter sentence. Despite his protestations of innocence, the defendant seeks guidance frequently from an over-worked, underpaid defense lawyer who would much prefer a quick deal rather than a long drawn out trial. Of course, not all defense counsel fit that description. Many do not, but even the best and most devoted are required to put this draconian choice to their clients — a guaranteed short sentence versus a potentially long one — possibly life in prison.

via Judge H. Lee Sarokin: Why Do Innocent People Plead Guilty?.
Agreed, Judge.  Intimidation by prosecutors and incompetence by defense laweyrs wreak havoc on the integrity of the process.

To me the most disturbing reality of the American criminal justice system and the most influential member to the “Ins of Court” is the indifference of judges.  Judicial indifference to the failings of the attorneys and to the defendant’s pretrial claims of innocence.  After all, judges are the ones who control the environment that tolerates (and sometimes endorses) the use of prosecutorial intimidation and overlooks defense incompetence.  And judicial indifference to claims of innocence cause some judges to spend more time trying to convince a defendant to take a deal rather than on ensuring the defendant receives a fair trial.

In one appeal we’re working on, the judge began the trial with this unsolicited advice to three people who insisted on going to trial to establish their innocence and who never once asked for, or considered accepting a plea bargain:

What you need to decide is everything is riding on what decision the jury makes. And the risk is very high because should you go to state prison for the low term, you will be serving 85 percent. You will not have the benefit of early release of county jail. . . . You’re young men.  It doesn’t look like you have criminal records.  And I think going to state prison or the prospect of doing that will be very difficult for any one of you because of your age and lack of the sophistication in the criminal justice system.  You are young men and it would be a very hard adjustment, I would guess.  You are not hardened criminals who are used to being in custody. . . . [Your lawyers] are vigorous advocates and they will fight the best they can, but they cannot pull rabbits out of a hat and it all will be in the hands of the jury.  You have to make the decision is it worth the risk what the potential is if the jury find with the prosecution and convict you[?]

Amazingly the offer the judge was trying to talk the defendants into had yet to be extended by the prosecutor.  And not once did the judge suggest that factual innocence should factor into the decision, let alone be a significant factor!

Imagine this playing out in a different setting, say with regard to an important medical procedure.  Would any of us expect the intake personnel at a medical facility to suggest that we should just go ahead and schedule an out-patient amputation because it is well known that the hospital suffers a lot of casualties when doing non-life threatening surgery on admitted patients?  Would it trouble us if the advice was doled out without first inquiring into the general health of the patient, the reason for their visit, or the basis for the diagnosis?  If the hospital was so completely unable to care for the welfare of those in its charge, we would not expect it to be shut down until the problem could be fixed?

Should calendar management and volume control ever be a good enough reason for any criminal trial judge to proactively encourage defendants to seek a plea-bargain to crimes they did not commit?

Implicit in this trial judge’s comments is the presumption of guilt and/or of the inability of the court and the litigants to assure that justice and truth will prevail.  The clear message conveyed is this: a jury trial in this courtroom is nothing more than a crapshoot, the outcome depends not on the strength of the evidence but on the peculiarities of the litigants and jurors, and–apparently–the availability of rabbits.  If true, this is hardly something to brag about.

The young men ignored the judge’s prophecy of doom–with the confidence that only innocence can produce–and refused to accept or seek an offer.  Nevertheless, they were quickly convicted by the very woes that created the undue pressure on the innocent to plead guilty: prosecutorial intimidation, defense incompetence and judicial indifference.  No doubt, there is a perverse self-fulfilling truth to the “Ins of Courts” collective you-will-be-convicted mantra.

In his article, Judge Sarokin suggests this very reasonable fix:

The only solution is vigilance by all those involved. The prosecutor, defense counsel and the court must be satisfied of the defendant’s guilt before urging or accepting a plea.

via Judge H. Lee Sarokin: Why Do Innocent People Plead Guilty?.

Judge Sarokin’s proposal would go a long way if were able to assume the good intentions of all involved.  However, we must also remember that the ultimate danger at issue here is the wrongful conviction–whether it occurs through a highly pressured plea-bargaining session or via a guilty verdict.  So even if we could count on the members of the “Ins of Court” to search for truly credible evidence of the defendant’s guilt before encouraging or enticing a defendant to plead, the innocent still have to prevail at trial.  Thus, I would go one step further and say to all those involved:

The prosecutor, defense counsel and the court must vigilantly work to disband the Ins of Court and go about their business in a way that absolutely guarantees all defendants a fair trial.  We cannot and should not settle for less.

(Thanks to the Innocence Project for the heads up on this article.)