Plea Bargaining in Capital Cases

December 30, 2014

Tuesday, December 30, 2014

Good afternoon:

I am now writing articles for the main page at Firedoglake (firedoglake dot com) during the owner’s hiatus from the site. I am volunteering my time there. My articles are published on Monday, Wednesday and Friday at 6 pm EST. I will continue to publish articles here, although you may not notice any change except I will be posting a little later each day and taking a day off now and then.

This article about plea bargaining was prompted by a comment to one of my posts at the Lake. The person who posts under the name Eternal Vigilance asked the following question:

Would an ethical lawyer still advise an innocent client to go to trial even when the trial might not be fair and the consequence of losing is death?

Here’s my answer:

Great question. Tough question. Please forgive the long response.

You have to keep in mind that the lawyer rarely knows for certain whether the client is innocent, unless there is an exculpatory DNA result, because clients have been known to lie to their lawyers. I went with the flow because I did not judge my clients.

I rarely confronted a client, unless the evidence against him was so overwhelming that there was no chance of success and the penalty for conviction was severe, as in a death case.

Ultimately, it’s the client’s decision to go to trial or not. Even guilty people have a right to go to trial and force the government to overcome the presumption of innocence by proof beyond a reasonable doubt. The lawyer can’t put them on the stand to deny guilt, if they have admitted guilt. That’s unethical and a lawyer who does that can lose his license for doing that.

I used to estimate the probability of success after reviewing all of the evidence and possible strategies to counter it. I would discuss that with the client and let them decide whether to go to trial. I would tell them if there were no realistic chance of winning and discourage them from going to trial, if they could get a better result by pleading guilty. If they couldn’t get a better result by pleading guilty, I told them I was willing to go for it, if they were. Some opted to plead guilty. Others opted to go to trial.

I never counseled an innocent client to plead guilty and never would in any case, including a death penalty case. And this would be true even if I had reason to believe we were dealing with a corrupt prosecutor and cops. If I believed that were the case, I would certainly tell my client and explain why I believed that to be true.

The problem is the criminal justice system is corrupt and no one can reasonably assume otherwise. That’s why I don’t practice law anymore.

Another consideration is a client has to provide a factual basis under oath to support a guilty plea. For example, “On or about (fill in the date) in (fill in the place) I took $50 from (fill in the victim) by threatening him with a knife.” A lawyer cannot ethically advise an innocent client to perjure himself by saying he did something that he did not do.

There is a type of guilty plea, called an Alford plea, in which a defendant concedes that the government has enough evidence to convict him if the case goes to trial, so he is going to plead guilty to avoid a trial and take advantage of the government’s plea offer. I don’t like these pleas, especially in cases where the plea deal requires the defendant to enter and complete a counseling program because the client is likely to be kicked out of the program for being not amenable to treatment because he refused to admit that he committed the offense to which he pled guilty.

Alford pleas (i.e., pleading guilty without admitting guilt) are equivalent to wanting to have your cake and eat it too. They promote avoiding responsibility and the reality is that a guilty plea is a guilty plea is a guilty plea, as far as the record is concerned. There is no real advantage to them.

Probably more information than you wanted to know, but the subject is complex and fascinating and probably should be the subject of a separate article.


Bernie’s epic smackdown of Mark O’Mara

March 29, 2013

Friday, March 29, 2013

Good morning, everyone!

I bow down in absolute awe of Bernie de la Rionda’s epic Shakespear-style smackdown late yesterday of the defense team, their internet troll advisers, and the reporters at the Orlando Sentinel who labor so diligently to spread the defense message. I have never read anything like it and it’s so perfect that I think I would only diminish its impact were I to cut and paste bits and pieces of it into a new post.

It’s as close to perfection as I think is humanly possible and Bernie de la Rionda deserves all of the credit for producing this gem.

Make no mistake. Bernie de la Rionda’s masterpiece is so superior to any other formal written legal argument that I have read or heard about that I believe it will achieve immortality as an example of the elegant smackdown.

Read and savor it here.

In other news yesterday, on Monday Judge Nelson issued without a hearing a terse three sentence order denying the defendant’s motion for reconsideration and clarification of her previous order denying the defendant’s motion to depose Benjamin Crump. The defendant’s supporters are in an uproar because Judge Nelson did not conduct a hearing or provide an explanation or justification for the order.

I held my breath and performed a quick survey of comments posted at right-wing websites to get an idea of what they are saying. I saw comments asserting the existence of a conspiracy against the defendant and his lawyers to rig the outcome of the trial so that the innocent defendant is convicted. President Obama is supposedly telling Judge Nelson what to do and she is in cahoots with Bernie de la Rionda to achieve the desired outcome. The lack of a hearing and the absence of a written opinion supporting her order are cited as proof that this conspiracy exists.

They apparently do not realize that judges are not required to hold a hearing before deciding whether to grant a motion to reconsider a previous order. They also appear not to know that the standard practice nationwide in state and federal courts is for judges to summarily decide motions to reconsider by granting or denying them without further explanation.

Needless to say, evidence of judicial compliance with a standard practice is not evidence of a conspiracy to deny the defendant a fair trial.

Finally, did y’all notice BDLR’s comments about O’Mara’s behavior at the the first bail hearing. That was quite a dramatic and disquieting shot across O’Mara’s bow introducing the possibility that O’Mara might be prosecuted for his role in assisting his client to conceal assets and a second passport from Judge Lester at the hearing.

If I were O’Mara, I would take that threat seriously and consult with counsel before deciding whether to respond.

Of course, the prosecution would have to prove beyond a reasonable doubt that he knew and acted with intent to deceive Judge Lester at the bail hearing about the second passport and the thousands of dollars that had been donated to his client via the Paypal account. I suspect BDLR decided not to pursue that matter last year because he realized that he would need solid and convincing evidence to independently confirm the defendant’s disclosures in the recorded jailhouse phone calls.

BDLR knows that the defendant is an habitual liar and no jury would convict O’Mara on his word alone. He is certainly smart enough to realize that his emotional response to O’Mara’s frivolous accusations is not a legitimate factor to consider in deciding whether to charge O’Mara with a crime. This leads me to ask what has changed since last summer that would independently confirm that O’Mara knew about the money and the second Passport at the time of the hearing?

Has Shellie Zimmerman flipped on George Zimmerman and provided the missing link?

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Zimmerman: An Evaluation of the Probability of a Plea Bargain

October 4, 2012

I decided to write this article to respond to questions raised by many of you regarding plea bargaining in criminal cases. This is an important subject to cover because approximately 80% of all felony cases are resolved by guilty pleas that resulted from plea bargaining. If every defendant charged with a felony in this country demanded a jury trial, our courts would not be able to process their cases fast enough to keep up with the flow of new cases.

This would produce an epic disaster because trial dates would have to be scheduled so far off in the future that many defendants unable to qualify for pretrial release would serve a substantial amount of their sentences, if not the entire amount, before their trial. The right to a speedy trial would cease to have any meaning and the right to a trial would be so drastically compromised by the inevitable pretrial delay that an exoneration by a jury would have little practical effect. Innocent defendants would suffer incalculable damage to their lives. They eventually would realize that they would likely serve less time if they plead guilty instead of insisting on their right to a jury trial. This practical solution to getting out of jail would effectively eliminate their right to a jury trial, a drastic consequence that no reasonable person would tolerate.

Plea bargaining avoids this doomsday scenario by enabling the courts to process cases in a timely fashion. The reality we have to acknowledge is, whether we like it or hate it, we are stuck with it.

With that background, let us now consider how a plea bargain might resolve Zimmerman’s case.

Zimmerman is charged with second degree murder. He entered a plea of not guilty and claims self-defense.

As the matter now stands, the case will proceed to an immunity hearing and then to a jury trial, assuming the judge denies Zimmerman’s motion for immunity from civil and criminal liability.

If the jury finds him guilty, the Court must sentence him to at least 25 years in prison. The maximum sentence authorized by law is life in prison.

Whether or not he committed the crime, Zimmerman has a constitutional right to plead not guilty and force the prosecution to prove its case.

The only way Zimmerman can change that process is to drop his claim of self-defense and plead guilty as charged. Fortunately for him, he is not under any pressure to plead guilty as might be the case if he were in custody.

Therefore, unless he decides that he cannot win, he has no reason to give up his right to a jury trial. He apparently believes that he cannot lose. I disagree.

In order to make a well informed, intelligent and reasonable decision regarding whether he should go to trial, he should consider whether the risk of conviction and the attendant consequence of serving at least a 25-year prison sentence, is worth taking. One of the most important duties and responsibilities that a lawyer has to his client is to objectively assess that risk and fully inform him about his conclusion and the basis for it.

In my professional opinion, every lawyer should do this for every client, regardless if the client claims innocence, because the lawyer always should allow for the possibility that the client may not have truthful. Although I would never recommend that an innocent client should plead guilty, I believe even the innocent client has a right to know about his chances of winning. For example, I regret to say that I am reasonably certain that some of my innocent clients decided to plead guilty because they had no faith in the ability of the criminal justice system to produce the proper result. For example, I cannot disagree with a Black defendant who, despite claiming innocence, decides to plead guilty to a drug offense to obtain the substantial benefit of a less severe sentence than he would receive after an all white jury rejected his claim that a Caucasian police planted drugs on him. Yes, a criminal defense lawyer deals with racism and ethical ambiguity every day. We do the best we can to assist our clients to navigate through troubled waters and one way to do that is to provide every client with the most accurate and reliable information available.

The prosecution can give Zimmerman a reason to consider pleading guilty by offering to reduce the charge (i.e., charge bargaining) or offering to recommend the lowest possible sentence (i.e., sentence bargaining), if he agrees to plead guilty. The prosecution usually initiates discussions about a possible plea agreement because it is already well informed on the strengths and weaknesses of its case when it charges the defendant with a crime. Defense counsel has to get up to speed before he can knowledgeably and intelligently assess the prosecution’s case.

An offer implicitly invites a counter offer, despite a take-it-or-leave-it warning. Defense counsel always should resist pressure to accept an offer by a specific deadline, if that deadline does not permit sufficient time to get up to speed on the case. No criminal defense lawyer can provide effective assistance of counsel to his client if he engages in plea negotiations with a prosecutor before he is up to speed on the case. Effective assistance of counsel is the minimum requirement expected of a criminal defense lawyer to satisfy the Sixth Amendment right-to-counsel requirement.

An agreement between the parties to dispose of the case pursuant to a plea bargain always will be contingent on the judge’s review and approval. For example, the public has a legitimate interest and expectation that plea bargains will be based on the relative strengths and weaknesses of the prosecution and defense cases. Therefore, the prosecution has to have a legitimate reason to plea bargain. Personal inconvenience trying the case is not a legitimate reason.

A problem proving the case is the most common reason offered by prosecutors to support a plea bargain. Judges consider proof problems to be a legitimate basis for a plea bargain and they will accept the agreement reached by the parties, unless the proposed disposition offends their sense of fairness and the due administration of justice.

Provided the judge is willing to accept the plea bargain and proposed disposition, the parties may discuss and reach an agreement at any time while the case is pending until the jury verdict is announced in open court. Judges do not encourage last minute resolutions of the case during the trial because of the time, effort and cost expended to try the case, but they will generally accept the agreements. Judges want to encourage plea bargaining because it is the primary means by which cases can be processed in compliance with the constitutional requirement for a speedy trial. For this reason, you will rarely see a judge refuse to support the terms of a plea agreement.

One of the biggest stumbling blocks to resolving a case by a plea bargain is a defendant’s unwillingness to admit guilt. Judges cannot accept a guilty plea unless the defendant provides a factual basis that, if assumed to be true, will establish each element of the crime or crimes to which he is pleading guilty pursuant to the agreement.

The so-called Alford plea that some of you have mentioned is a judicially created remedy to facilitate guilty pleas by eliminating the stumbling block that required a defendant to admit embarrassing and humiliating facts on the record in open court to provide a sufficient factual basis to support the plea.

The SCOTUS created the remedy in Alford v. North Carolina by declaring a new rule that permits a defendant to satisfy the factual-basis requirement by conceding that the prosecution can prove its case and stipulating or agreeing that the judge may consider as proven facts information that is contained in supplementary police-investigation reports attached to the written guilty plea. This concession supplies the necessary factual basis to support the guilty plea without requiring the defendant to actually speak the words that he so desperately wants to avoid admitting in public. Note that the Alford plea permits a defendant sufficient wiggle room to later claim that he did not actually do what the police claimed he that he did.

There are two major problems with Alford pleas. First, an Alford plea is still a guilty plea and a defendant who chooses that option is not considered any less guilty for selecting it. Second, a person who chooses that option may actually end up worse off because mental health professionals and alcohol and drug counselors consider them to be evidence of an unwillingness to accept responsibility for the crime they committed. For this reason, I always advised my clients not to do an Alford plea if they were seeking mental health treatment or to be accepted into an alcohol or drug treatment program as a condition of probation. I told them they might as well get started on admitting what they did because they were going to have to do that to get into and complete a program. The official reason would be “not amenable to treatment because the defendant denies that he has a problem.”

The remedy provided by the Alford plea mitigates to a limited extent the difficulty and shame experienced by an innocent client who pleads guilty, but it does not change the outcome. The criminal justice system will regard it the same way it regards any guilty plea.

Mark O’Mara should know enough about the case by now to knowledgeably and intelligently evaluate its strengths and weaknesses and estimate the likelihood of success. I say “should” because he has had adequate time and opportunity to review the discovery materials.

He needs to do more than that, however. No lawyer should ever assume that the police-investigation reports accurately and reliably report what happened. For example, police often omit information that would be helpful to the defense and the information they include usually reflects an intent to build a case against the client. Objective is not the first word that comes to mind to describe them.

I hope O’Mara has employed an investigator to work on the case. Unless he knows a lot about forensics, he also should have employed a forensic consultant to review the reports and benchnotes, tell him what they mean, and tell him what he should do. He definitely should not assume that the findings and conclusions of the various analysts are accurate and reliable, if he has little knowledge or understanding of forensic science.

I have previously described Zimmerman as someone who likely is a difficult client determined to control the defense. I do not doubt that he lacks the necessary knowledge and experience to accurately and reliably evaluate the strengths and weaknesses of his case and estimate his chances of success. That is O’Mara’s responsibility and Zimmerman should at least listen carefully to what he says and reconsider his own opinions when they differ from O’Mara’s. If he lacks confidence in O’Mara, he should hire another lawyer.

I can think of 28 good reasons for Zimmerman to rely on a lawyer’s advice instead of his own. The first three reasons are he lacks the necessary knowledge, experience and objectivity to accurately and reliably evaluate the strengths and weaknesses of his case. The remaining 25 reasons are represented the 25 year mandatory minimum sentence that he faces, if he is mistaken.

From my distant perspective here in Kentucky reviewing and evaluating the discovery in light of my knowledge and experience, I believe Zimmerman is unlikely to persuade Judge Nelson to grant him immunity and I further believe there is a substantial likelihood that a jury will reject his claim of self-defense and convict him of murder in the second degree.

I suspect Zimmerman may need a wake-up call from reality and the immunity hearing may serve that purpose. Therefore, I am not expecting that either side will be interested in discussing a plea bargain until after that hearing.

Finally, I believe the prosecution has a very strong case that only gets stronger as time passes. Accordingly, it has little to no incentive to offer a benefit to Zimmerman in order to induce him to plead guilty.

With prosecution incentive to plea bargain decreasing with the passage of time as defense intransigence and unwillingness to consider it intensifies, I currently see little chance for a resolution of the case by plea bargain.


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