Posts Tagged ‘plea bargain’

When Is It Unfair to Get a Fair Trial?

Monday, October 31st, 2011

 

“You are saying it was unfair to have a fair trial?”

That was a fair question put by Justice Kennedy at oral argument today. The issue is whether a criminal defendant can be deprived of the effective assistance of counsel (for Sixth Amendment purposes) when a lawyer screwup prevents him from taking a plea deal.

The issue was presented in two companion cases, Lafler v Cooper and Missouri v. Frye. In Lafler, defense counsel gave bad advice, so that the defendant rejected a plea offer and went to trial instead. In Frye, the defendant did take a plea, but an earlier more favorable offer had never been conveyed.

Everyone accepts as given that the lawyers in these cases screwed up big time. The issue is only whether the screwups were so deficient as to rise to a constitutional violation.

Defendants do not have a right to a plea bargain, of course. The Supreme Court has spoken pretty firmly on that one. The plea bargain is, however, almost universally lauded — it allows defendants to cut their losses, prosecutors and courts to free up resources, and gives the system a chance to impose a “more fair” penalty than that which the legislature would otherwise have imposed. Plea bargains are wonderful. But there is no constitutional right to them.

Given that, the layman might be forgiven for scratching his head and wondering why these two cases were granted cert in the first place. (Laymen do that, you know.) There was no constitutional right being deprived, and there’s no doubt about the reliability of the conviction, so how could there possibly be ineffective assistance here?

That’s pretty much what the government argues — that there’s no prejudice, so there’s no Strickland problem. Being convicted after a fair trial is not prejudicial. Voluntarily taking a guilty plea is not prejudicial. The mere fact that a less harsh sentence could have been gotten with a better lawyer may perhaps be a pity, but it is not prejudicial. A do-over ought to be out of the question.

But Padilla held that ineffective assistance applies to the plea bargaining stage, that failure to advise as to immigration consequences can require just such a do-over. So the defendants argue that what was prejudiced was the outcome of the plea process itself, and not the outcome of the case. The issue for them is not whether the defendant would have been convicted or not, but whether ineffective assistance deprived them of the opportunity to get a better deal.

Both defendants argue that the correct fix would be to give them a chance to accept the earlier offer that, but for their lawyers’ failing, they would have accepted in the first place.

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There is a fear that, if the defendants win, there will be a rash of appeals claiming that prior plea offers hadn’t been conveyed, or had been rejected for stupid reasons. Who wouldn’t want to take advantage of a chance to cut their 10-year sentence down to the 2-year offer that was originally rejected? How easy is it to claim that a lawyer told you something stupid, or didn’t tell you anything at all, especially as those discussions aren’t typically recorded or transcribed — it’s a he-said-she-said at worst, and who knows what lawyers might not be persuaded to bend the truth and swear out an affidavit substantiating the defendant’s claim?

One might also fear that, given this safety valve, defendants would be more likely to take cases all the way to trial, on the off chance that they win, knowing that if all else fails they can just go back to their saved game from the plea levels. That would sort of undermine the courts’ stake in plea bargaining, clogging the courts rather than freeing them up.

These are policy issues that may well be persuasive to the justices. Not law issues, so much as practicalities.

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But what did the justices actually say today? That might give a (more…)

“This offer is only good today.”

Thursday, September 30th, 2010

Another good post by Mark Bennett today over at his blog “Defending People,” entitled “Today Only?”  He recounts the plea-bargaining tactic some prosecutors use, attempting to force a plea by saying the offer is only good that one day, and won’t be offered again.

Did the words mean what they purported to, or was this just part of the ritual?  Put in practical terms, what does the criminal defense lawyer tell his client when the client asks if he can have some time to think about the plea offer?

Chances are good that the same factors that led the prosecutor to make the offer today will still exist when the case comes back to court….  There might be a reason that making the same offer at the next setting would interfere with these goals (chief isn’t here today, will be then and will nix the deal; case at a point where ADA has to get it pled or do some actual work).  If so, the prosecutor will generally identify the reason; the defense lawyer then has to decide whether the prosecutor’s assessment is correct, or whether the plea offer is likely to remain the same (or, as usually happens, get better).  Without a plausible reason for the offer to get worse, though, “today only” in the courtroom means what it means in the bazaar: it’s part of the ritual.

Over at Simple Justice, Scott Greenfield added that

Negotiating pleas isn’t for the squeamish, and if someone can bulldoze you into a plea by using the “today only” ploy, chances are you don’t have the guts for this work.  On the other hand, know your adversary, including the judge.  With some people, “today only” means exactly that, and they will cut off their nose to spite their face just to keep their word.

It’s not a job for the gutless, but better to know up front whether the person making the pitch is going to live with the consequences.  If you don’t know, it will be your client living with the consequences, whether they want to or not.

In my* experience, a “today only” ultimatum is a sign of either resignation or desperation.  It’s made in the hope that it will be taken, and the case will go away.  Maybe the prosecutor is just sick of it and doesn’t want to spend more time on it, or maybe the prosecutor is afraid of having to go to trial on it.  It’s rarely made out of sheer altruism.

The kind of prosecutor who would make a “today only” offer is usually the kind who will drop down from the offer again later on.  Backsliding is a real possibility next time, the time after that, and on the eve of (more…)

It’s the Culture, Not the Caseloads

Tuesday, April 13th, 2010

overworked

The past couple of weeks, there’s been some discussion about a recent paper by Adam Gershowitz and Laura Killinger called “The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants”.

The authors argue that prosecutors in large jurisdictions often have “excessive” caseloads, so they don’t have enough time and resources to devote to each case. And injustice results. Rushed and overwhelmed, they fail to spot cases deserving special treatment, such as more lenient pleas or drug-court diversion. They don’t notice Brady evidence favorable to the defense. Weak cases don’t get dismissed. Jammed up caseloads cause delays that make defendants take pleas to time served, just to get out of jail. Nobody has the time to spot innocent people, who wind up getting convicted in the rush.

One of the better posts was by Scott Greenfield yesterday at his blog Simple Justice, where he makes the point that delay is actually a good thing for the defense, thanks to speedy-trial rules. More importantly, he points out that prosecutors actually have the discretion to do what it takes to make their caseloads more manageable. To get rid of cases, they can offer lower pleas, dismiss them, do an ACD/DP, what have you. There are easy options to put a case on hold while investigating whether a defendant is deserving of special treatment.

But we haven’t seen anyone yet make the blazingly obvious point that prosecutors aren’t likely to do any of that if the defense attorney doesn’t bring it up, first.

So we’re going to say it now. We defense attorneys can’t just sit there and hope that the prosecutor does the right thing. We actually have to get off our butts and make a case. Good defense lawyers know this, and much of their advocacy involves convincing the prosecutors to exercise their discretion in the client’s favor. Even the best prosecutor only knows what’s in front of him. He’s made up his mind about what this case is worth, based on the evidence he has. The only way to get him to change his mind is to give him new facts, or a new way to look at the facts.

So if a client might be innocent, and the prosecutor doesn’t realize it, then the defense attorney’s job is to bust his ass to make sure the prosecutor figures it out. Ditto for clients who really deserve a lighter-than-usual sentence, or a creative sentence, or treatment instead of jail. This has nothing to do with prosecutor caseloads, and everything to do with defense counsel. Sorry, but it’s the truth.

Beyond that, we still don’t see much cause-and-effect between prosecutor caseloads and the problems decried by the paper’s authors. That’s just not the problem here. And lowering caseloads or increasing resources won’t fix the real problems.

The best prosecutors do try to screen out the innocent, the weak cases, the special cases. Oddly enough, they are pretty common in some offices with the heaviest caseloads. The worst prosecutors don’t seem to want to exercise their discretion at all, or even recognize that they have been given it for a reason. And they’re common enough in offices with hardly any caseload to speak of. In our experience, prosecutor caseloads have zero effect here. The quality of the individual prosecutor, and the culture of their office, has everything to do with it.

So the trick is to get better, not more, prosecutors. How do you do that?

You don’t really need to pay them more. It’s a government job, so it (more…)

Rats!

Tuesday, September 15th, 2009

rats

On our first day as a young Manhattan ADA, we were assigned to the office of the Special Narcotics Prosecutor for NYC. The purpose of Special Narcotics is to investigate and take down large-scale drug trafficking across the city. There were two parts to the office — the Special Investigations Bureau did tons of wiretaps, and was staffed by experienced prosecutors; the Trial Bureaus handled mostly street-level arrests, tons of them, in the hopes that some of those defendants would “flip” and provide information that could lead to a long-term investigation. We were assigned to a trial bureau.

We had competing feelings, at first. On the one hand, we were all gung-ho to do whatever small part we could, and were frankly itching to start trying cases. On the other hand, we were not at all eager to use informants. “Rats,” we believed, were not merely distasteful and disloyal, but were of dubious actual value. We were told in no uncertain terms that, if we weren’t going to use informants, then there was no way we’d ever be able to develop a big case.

(And just to be clear, by “informants” we don’t mean mere witnesses to a crime. We’re talking about defendants who are trying to get a more lenient sentence by helping to convict someone else.)

We spent the next five years in Special Narcotics, and sure enough dealt with more informants than we can count. Then we moved up to the Rackets Bureau of the Manhattan DA’s office, where we continued to develop and use informants for another five years. And though we were no George Smiley, we still got pretty good at it.

And sure enough, what they’d told us back on Day 1 was the truth: We never saw a case of any size that didn’t get started because of an informant. An informant is truly a prerequisite.

But at the same time, our gut feeling on Day 1 had also been correct: The vast majority of potential informants have zero value. We can’t imagine how many NYPD resources and sleepless ADA nights have been wasted dealing with useless informants, drafting and executing worthless search warrants, and running fruitless investigations.

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These days, we’re on the defense side, and we simply don’t represent informants. If a defendant wants to flip, that’s their business, but they can find someone else to represent them. We like to think our job is to keep people out of jail, not to help the prosecution put someone else in jail.

Now that’s just us. There are plenty of decent and honorable defense attorneys who represent informants. We’re not disparaging them in any way. It’s just our own personal preference not to do so ourselves.

And that’s not to say we won’t have clients who cooperate, especially in federal white-collar cases. Cooperation doesn’t need to mean informing on others or trying to get someone else in trouble. There are all kinds of ways for a corporation or executive to cooperate with an investigation without being a rat or a turncoat.

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So did we learn anything in all those years of developing and handling informants? Sure. More than enough to write a book or two, and certainly too much to set down in a blog post. But we don’t mind jotting down a few cautions that might be useful to our readers who might be working with or representing informants. (Defense counsel representing an informant has similar interests to those of the prosecutor — the informant only gets rewarded for results, so allowing him to screw the case is not in the client’s best interest.)

So here are a few things to be wary of:

* If it sounds too good to be true, it isn’t. The more kilos your informant claims to have seen inside that apartment, the more likely it is to house an elderly priest who’ll die of a heart attack when his door gets busted down. A street-level numbers runner who claims to have information about the leaders of an O.C. family is probably little more than a wannabe.

* Desperate people take desperate measures. Plenty of defendants would love dearly to be able to provide useful information, but unfortunately they don’t know any real crooks. At least none that they’re willing to inform on. It’s a sad truth that informants only get rewarded for results, not for efforts. So one frequently comes across the would-be informant who winds up trying to entrap friends and acquaintances into committing crimes. You run a serious risk of being duped yourself, and being party to that entrapment, if you’re not careful.

* Desperate people take even more desperate measures. Forget entrapment. Sometimes the would-be informant outright lies. Now your own integrity is at stake. So if a target letter went out, or an arrest has been made, be especially receptive to vociferous claims of innocence.

* An informant is never reliable. His information may be, on a given day, but he himself never is. He is an informant precisely because he is a criminal who is willing to sell out his friends and family. He is an informant in order to manipulate the system to his benefit. He is just as capable of manipulating you, and rest assured that is precisely what he’s trying to do.

* Watch out for an “informant” who is the actual culprit. Or who is a big fish trying to sell smaller fry.

* Ferret out whether the cops have made any promises on the side. Or worse yet, made payments or benefits to the informant beyond the scope of the deal. It’s a credibility-killer, especially if it comes out for the first time during testimony at trial.

* Nobody wants to make themselves look bad. So informants always, always hold back. Right about the time you think you’ve got the full story out of them, that’s where you need to presume there’s something serious they’ve held back that’s going to cause problems down the line.

* If it’s uncorroborated, presume it ain’t true. The best corroboration is physical evidence, photographs, and other non-testimonial items.

* Informants readily believe that law enforcement needs them, rather than the other way around. It does them no good to believe this. It should go without saying that the prosecutor should shut this attitude down at every opportunity. But the informant’s defense counsel should also make sure to hammer home that the informant is in charge of nothing in this relationship.

Finally, for the law-enforcement folks out there, do not rest your case on the informant. As soon as you can, drop the informant and build your case using other means. Ideally, you want a case where the informant never has to testify at all. Get the informant to introduce an undercover agent. Use the informant to get you started on a pen register or wiretap. Use the informant to launch physical surveillance or whatever. But get that informant out of the case as soon as possible.

That’s enough for one post. Time to stop before this turns into either a rant or a dissertation. We’ve got work to do.

Supreme Court: If Prosecution Breaches Plea Deal, OBJECT!

Wednesday, March 25th, 2009

supreme-court.png

Voting 7-2, the Supreme Court today ruled that a defendant cannot appeal when the prosecution reneged on a plea bargain, unless the issue was preserved before the trial court.

In his majority opinion for Puckett v. U.S., Justice Scalia cleared up a split among the circuits. There had been differing opinions on whether this situation was one of the exceptions to the general rule requiring that issues be preserved below. He sort of signaled his take on the issue with his first sentence: “The question presented by this case is whether a forfeited claim that the Government has violated the terms of a plea agreement is subject to the plain-error standard of review set forth in Rule 52(b) of the Federal Rules of Criminal Procedure.”

The facts of the case are going to sound familiar to anyone who’s been doing criminal law for very long. The defendant was indicted for armed robbery, and negotiated a plea deal. As part of the deal, the prosecutors promised to tell the court that he “has demonstrated acceptance of responsibility and thereby qualifies for a three-level reduction…” But then, after the plea but before sentencing, the defendant got in trouble again, this time for a scheme to defraud the Postal Service. The prosecutors changed their mind, in light of this new information, and told the sentencing court that the defendant should *not* get credit for accepting responsibility.

The defense attorney called foul, and reminded the court of the terms of the plea agreement. The judge turned to the prosecutor, who dismissed it as having been written a long time ago, and the new crime changed the situation. The judge decided that he couldn’t grant a reduction, and wouldn’t even if he could, given the new crime. He did impose a sentence at the low end of the range, however.

“Importantly,” to Scalia, “at no time during the exchange did Puckett’s counsel object that the Government was violating its obligations under the plea agreement by backing away from its request for the reduction. He never cited the relevant provision of the plea agreement. And he did not move to withdraw Puckett’s plea on grounds that the Government had broken its sentencing promises.”

On appeal, the Fifth Circuit held that error had occurred, and it was obvious, but it did not cause prejudice, so it was not “plain error.” Basically, the defendant couldn’t demonstrate that his ultimate sentence would have been any different, whether the prosecution had recommended the reduction or not, given the judge’s disinclination to grant it in the first place.

But there was a conflict among the circuits as to whether the plain-error test applies to unpreserved claims of breached plea agreements. So the Supreme Court granted cert.

In finding that Rule 52(b) does apply to unpreserved claims of breached plea agreements, Scalia started with the principle that plain-error review is rightly the norm for unpreserved errors, because “anyone familiar with the work of courts understands that errors are a constant in the trial process, and that a reflexive inclination by appellate courts to reverse because of unpreserved error would be fatal.” Exceptions to the normal rule do exist, of course. But should this situation be one of them?

Everyone took it as given that the government had broken its agreement. The issue is whether, in the absence of an objection below, anything could be done about it on appeal here.

The defendant first argued conceptually that the government’s breach of the plea agreement made that agreement void, and so voided the guilty plea. Scalia pointed out that breaching a contract does not make the whole contract void and invalid from the first; the contract remains enforceable.

The defendant next argued that there was precedent in *Santobello*, where a broken plea promise was grounds for reversal in the interests of justice, even though the breach did not affect the judge’s decision and thus the error was harmless. Scalia countered that whether or not an error is harmless is not the issue here, which is whether the error can be subjected to plain-error review. In *Santobello*, moreover, the issue clearly had been preserved below.

The defendant then argued that applying Rule 52(b) makes no sense, because objecting to a plea breach is futile; the prosecution’s wrongful action cannot be undone. The judge will have heard the improper recommendation, and can’t unhear it. Scalia stated that requiring an objection prevents defendants from “seeking a second bite at the apple” after waiting to see if they like the outcome or not. Also, some breaches are curable. And those that aren’t can be remedied by the trial court, such as by withdrawal of the plea, or by resentencing before a different judge.

The biggest point the defendant raised was that plea breaches fall within “a special category of forfeited errors that can be corrected regardless of their effect on the outcome,” so that even if there was no prejudicial effect, there still ought to be a reversal.

Scalia responded by categorizing the exceptions that do exist: errors that “necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence,” or that “defy analysis by harmless-error standards by affecting the entire adjudicatory framework,” or which involve “difficulty of assessing the effect of the error.”

None of those considerations applied here, so Scalia decided that this situation just didn’t fit as an exception to the general rule.

Justice Souter, joined by Justice Stevens, dissented. Although the defendant wasn’t terribly sympathetic, and although they agreed that the plain-error test is the right one to apply here, the dissenters felt that the Court was looking at the wrong effects.

The majority (and apparently the parties, too) looked at the effect of the error as merely being the length of the sentence, which probably wasn’t affected here. Souter, in contrast, saw the effect as being “conviction in the absence of trial,” or in the absence of “compliance with the terms of the plea agreement dispensing with the Government’s obligation to prove its case.”

The criminal conviction itself, not the length of sentence, is the effect on substantial rights according to Souter. Due Process and fundamental fairness require, “before the stigma of conviction can be imposed,” either a trial or a plea agreement honored by the Government. “It is hard to imagine anything less fair,” he stated, “than branding someone a criminal… because he entered a plea of guilty induced by an agreement the Government refuses to honor.” Sentencing after the prosecution breached a plea agreement would always, by definition, be plain error.

Justice Souter’s approach is, of course, attractive to those who value the fairness and integrity of jurisprudence. However, it is hard even for this defense attorney to agree that all such sentences are necessarily plain error, especially when an adequate remedy (getting to take one’s plea back) is available if the defense attorney is paying attention.